Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: oa/05685/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th October 2016
On 13th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

UKVS SHEFFIELD
Appellant
and

Anu Mercy Akinyanju
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr A Fasedemi (Sponsor)

DECISION AND REASONS

Introduction and Background
1. The Secretary of State appeals against a decision of Judge O'Garro of the First-tier Tribunal (the FTT) promulgated on 5th May 2016.
2. The Respondent before the Upper Tribunal was the Appellant before the FTT and I will refer to her as the Claimant.
3. The Claimant is a female Nigerian citizen born 25th July 1979 who applied for entry clearance to enable her to join her spouse Alexander Fasedemi to whom I shall refer as the Sponsor, in the United Kingdom. The Sponsor is settled in this country.
4. The application was refused on 21st November 2014. It was not accepted that the requirements of E-ECP.2.6 and 2.10, which are set out below, were satisfied;
E-ECP.2.6
The relationship between the applicant and their partner must be genuine and subsisting.
E-ECP.2.10
The applicant and partner must intend to live permanently together in the UK.
5. In addition it was not accepted that the requirements of E-ECP.4.1 were satisfied which related to the English language requirement. The Secretary of State noted that the Claimant was not exempt from the English language requirement and was not a national of a majority English speaking country. It was contended that she did not hold an academic qualification recognised by UK NARIC to be the equivalent to the standard of a Bachelors or Masters degree or PhD in the UK, which was taught in English. It was noted that the Claimant had produced an IELTS certificate but the Claimant had not obtained the minimum score of 4.0 in listening. Therefore the Secretary of State was not satisfied that the Claimant met the English language requirement.
6. The Secretary of State did not consider that there were any exceptional circumstances which would warrant granting leave to enter the United Kingdom outside the Immigration rules, by reliance upon Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention).
7. The Claimant appealed, containing that adequate evidence had been submitted to prove a genuine and subsisting relationship, and that the couple intended to live together permanently in the UK. It was contended that there was evidence of contact by way of Skype, e-mails and telephone, and the Sponsor had visited the Claimant in Nigeria.
8. In relation to the English language requirement, it was stated that the Claimant is a graduate of Nasarawa State University in Nigeria and that she graduated in 2005. It was stated that the degree certificate was attached to the appeal, and evidence from UK NARIC was attached to confirm the standard of English taught on the degree course equalled CEFR level C1.
9. The application was reviewed following lodgement of the appeal, but refusal of entry clearance was maintained.
10. The FTT heard the appeal on 28th April 2016. Oral evidence was given by the Sponsor. The FTT found the Sponsor to be a witness of truth and accepted that the Sponsor and Claimant had a genuine and subsisting relationship, and intended to live permanently together in the UK. It was accepted that the couple had married on 23rd August 2014.
11. In relation to the English language requirement, the FTT referred to a letter from UK NARIC and a certificate from that organisation in which it was stated that the Claimant's degree certificate had been seen, and UK NARIC was satisfied that the Claimant met the English language proficiency requirements of CEFR C1. The appeal was therefore allowed under the Immigration rules.
12. The Secretary of State applied for permission to appeal to the Upper Tribunal. There was no challenge to the findings made that the couple were in a genuine and subsisting relationship and intended to live permanently with each other.
13. The challenge related to the findings made by the FTT in relation to the English language requirement.
14. It was contended that the degree certificate had not been produced with the application for entry clearance, nor had it been produced to the FTT. It was submitted that the FTT had not referred to the evidential requirements set out in Appendix FM-SE of the Immigration rules, and not explained how the Claimant met the specific requirements of the Immigration rules.
15. Reference was specifically made to paragraph 31 of Appendix FM-SE and in particular it was contended that the Claimant had failed to satisfy paragraph 31(a)(iii) and (v), the FTT had made a misdirection of law and failed to give adequate reasons, for concluding that the requirements of the Immigration rules were satisfied.
16. Permission to appeal was granted by Designated Judge Macdonald in the following terms:
"The Appellant is a national of Nigeria whose appeal was allowed by Judge of the First-tier Tribunal O'Garro in a decision promulgated on 5th May 2016. The grounds of application noted that the Nigerian academic qualification which was relied on by the Appellant was not produced to the Tribunal. The judge had not set out the requirements of Appendix FM-SE. He should not have been satisfied that the Appellant had complied with all of the listed provisions there.
While the judge inferred from the documents before him that the Appellant did meet the English language requirement it is arguable that the reasons given were not sufficient-all as set out in the grounds. Permission to appeal is therefore granted."
17. Directions were subsequently issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FTT had erred in law such that the decision must be set aside.
The Upper Tribunal Hearing
18. The Sponsor attended the hearing. There was no need for an interpreter and proceedings were conducted in English. The Sponsor confirmed that he was content to proceed without legal representation.
19. I explained to the Sponsor the purpose of the hearing, in that initially I must decide whether the FTT had erred in law. The Sponsor confirmed that he had a copy of the FTT decision, and a copy of the application for permission to appeal and the grant of permission to appeal.
20. The Sponsor submitted a witness statement prepared for the hearing.
21. I heard submissions from Mr Whitwell as to error of law. Mr Whitwell relied upon the grounds, contending that the requirements of paragraph 31 of Appendix FM-SE were not satisfied and the FTT had erred in law in allowing the appeal under the Immigration rules.
22. In addition Mr Whitwell referred to Appendix FM-SE D contending that because the degree certificate had not been submitted with the application, it should not have been considered.
23. Mr Whitwell also referred to section 85A of the Nationality, Immigration and Asylum Act 2002, which was in force prior to the implementation of the Immigration Act 2014, contending that the FTT may consider only the circumstances appertaining at the time of the decision to refuse entry clearance, which was 21st November 2014, and because the degree certificate had not been produced at that time, it should not have been taken into account.
24. At the conclusion of Mr Whitwell's oral submissions, I explained the issues to the Sponsor. I clarified my view that the FTT was not prevented by Appendix FM-SE D from considering the degree certificate, neither did section 85A prevent the FTT from considering the degree certificate, as the circumstances appertaining at the date of refusal were that the Appellant had a Bachelors degree, even though the certificate had not been produced.
25. I observed to the Sponsor that the degree certificate did not in fact appear to confirm, even though it was written in English, that the course had been taught in English. Therefore it appeared that the FTT may have erred in finding that the requirements of the Immigration rules were satisfied.
26. The Sponsor relied upon his witness statement which explained that initially he and the Claimant had been unaware that the holder of a Bachelors degree could rely on this to satisfy the English language requirements, which is why the IELTS test had been submitted with the entry clearance application. The Sponsor stated that English is the first language in Nigeria, and the degree course undertaken by the Claimant had been taught in English.
27. Having considered representations made by both parties, I found that the FTT had erred in law in allowing the appeal under the Immigration rules. This was because paragraph 31(a)(v) of Appendix FM-SE was not satisfied. I indicated that I would issue a written decision giving my reasons.
28. I then indicated that the decision needed to be re-made. Mr Whitwell submitted that the decision could be re-made based upon the evidence that had been provided to the FTT and there was no need for a further hearing. The Secretary of State's position was that the Claimant's appeal should be dismissed because of a failure to satisfy paragraph 31(a)(v) of Appendix FM-SE.
29. I asked the Sponsor if he had any representations to make, in relation to re-making the decision. The Sponsor again relied upon his witness statement, repeating that English is the first language in Nigeria, and the Claimant's degree course was taught in English. I was asked to allow her appeal.
30. I reserved my decision.
My Conclusions and Reasons
31. The reason for setting aside the FTT decision is that the FTT erred when considering the English language requirement. I do not accept the submissions made by the Secretary of State to the effect that the FTT was not entitled to consider the degree certificate. I do not find that Appendix FM-SE D applies to the FTT. Section 85A of the 2002 Act does not mean that a piece of evidence cannot be considered, if submitted after the date of decision, provided that the evidence relates to circumstances appertaining at the date of decision.
32. It is clear that when the entry clearance application was made, the Claimant initially relied upon an IELTS test but she had not passed an element of that test. Subsequently she relied upon a degree certificate dated 21st January 2005 issued by Nasarawa State University in Nigeria. Although this certificate was not submitted with the entry clearance application, there is reference in the Grounds of Appeal to it being submitted with the appeal form.
33. It is not clear whether the FTT actually had sight of a copy of the degree certificate. It is clear, and was accepted by the Sponsor that the original certificate was not before the FTT. The FTT makes reference in paragraph 25 to considering a certificate from the UK NARIC and a letter from that organisation but does not specifically state that the degree certificate was considered.
34. The error of the FTT was in finding that the requirements of paragraph 31 were satisfied. For ease of reference I set out below paragraph 31 of Appendix FM-SE:
31. Evidence of an academic qualification recognised by UK NARIC to be equivalent to the standard of a Bachelor's or Master's degree or PhD in the UK and was taught in English must be either:
(a) A certificate issued by the relevant institution confirming the award of the academic qualification showing,
(i) the applicant's name;
(ii) the title of award;
(iii) the date of award;
(iv) the name of the awarding institution; and
(v) that the qualification was taught in English
or
(b) If the applicant is awaiting graduation or no longer has the certificate and cannot get a new one, the evidence must be:
(i) an original academic reference from the institution awarding the academic qualification that;
(1) is on official letter headed paper;
(2) shows the applicant's name;
(3) shows the title of award;
(4) confirms that the qualification was taught in English;
(5) explains when the academic qualification has been, or will be awarded; and
(6) states either the date that the certificate will be issued (if the applicant has not yet graduated) or confirms that the institution is unable to re-issue the original certificate of award.
or
(ii) an original academic transcript that;
(1) is on official letter headed paper;
(2) shows the applicant's name;
(3) the name of the academic institution;
(4) the course title;
(5) confirms that the qualification was taught in English; and
(6) provides confirmation of the award.
35. The Claimant relied upon a degree certificate which satisfies paragraph 31(a)(i)-(iv). The certificate confirms the Claimant's name, the title of the award which is a BSc (Hons) in political science, the date of the award which is 21st January 2005, the name of the awarding institution which is Nasarawa State University, but does not satisfy (v) as there is no confirmation by the university that the qualification was taught in English. This confirmation must, in order to satisfy the Immigration rules, be contained in the certificate issued by the university. I accept that UK NARIC produced a certificate indicating that the level of English language is considered to meet the requirements of CEFR level C1, but that does not satisfy the requirements of paragraph 31(a)(v).
36. Unfortunately Nigeria is not one of the countries listed in paragraph 32 of Appendix FM-SE where it would be assumed for the purposes of paragraph 31 that the qualification was taught in English.
37. The FTT was therefore wrong in law to find that the degree certificate satisfied paragraph 31 of Appendix FM-SE and for that reason the decision was set aside.
38. In re-making the decision, I find that I must dismiss the appeal because the requirement of paragraph 31(a)(v) of Appendix FM-SE is not satisfied.
39. There was no challenge to the FTT finding that E-ECP.2.6 and 2.10 are satisfied, and therefore the finding that the relationship between the Claimant and Sponsor is genuine and subsisting, and they intend to live permanently in the UK is preserved.
40. However because the English language requirement is not satisfied, the Claimant's appeal can not succeed under the Immigration rules.
41. I decided that it was appropriate to consider Article 8 outside the Immigration rules. I accept that family life has been established between the Claimant and Sponsor. Applying the five stage test advocated in Razgar [2004] UKHL 27, I find that Article 8 is engaged, and refusal of entry clearance interferes with the family life that has been established. However this interference is in accordance with the law, because the requirements of the Immigration rules are not satisfied.
42. The issue is whether refusal is proportionate. I set out below paragraph 51 of SS (Congo) [2015] EWCA Civ 387;
51. "In our judgment, the approach to Article 8 in the light of the Rules in Appendix FM-SE should be the same as in respect of the substantive LTE and LTR Rules in Appendix FM. In other words, the same general position applies, that compelling circumstances would have to apply to justify a grant of LTE or LTR where the evidence Rules are not complied with."
For clarification, LTE means leave to enter, and LTR means leave to remain. In considering proportionality, I take into account the factors contained in section 117B of the 2002 Act. This confirms that the maintenance of effective immigration control is in the public interest, and it is in the public interest that a person seeking leave to enter the United Kingdom can speak English. The Claimant has not satisfied the requirements of the Immigration rules in relation to her English ability.
43. I also take into account the comment made by the Supreme Court in paragraph 57 of Patel [2013] UKSC 72 to the effect that it is important to remember that Article 8 is not a general dispensing power.
44. I do not find it is appropriate to allow this appeal with reference to Article 8, and disregard the English language requirements of the Immigration rules. I find that there is a considerable public interest in maintaining effective immigration control, and in being able to satisfy the requirements of the Immigration rules.
45. In my view the decision of the Secretary of State to refuse entry clearance is not disproportionate and does not breach Article 8. I find that the weight to be accorded to the need to satisfy the Immigration rules outweighs the weight to be accorded to the wishes of the Sponsor and Claimant to be allowed to live together in the United Kingdom. The appropriate course of action would be for the Claimant to make a further application for entry clearance, and provide the required information in order to satisfy the requirements of the Immigration rules. There is therefore no breach of Article 8 of the 1950 Convention.
Notice of Decision

The decision of the FTT contained an error of law and was set aside.

I substitute a fresh decision.

The Claimant's appeal is dismissed under the Immigration rules and on human rights grounds.

Anonymity

The FTT made no anonymity direction. There has been no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 11th October 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 11th October 2016

Deputy Upper Tribunal Judge M A Hall