Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08441/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 19 April 2017
On 24 April 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Diallo Fatoumata
[No anonymity direction made]
Appellant
and

The Entry Clearance Officer Accra
Respondent

Representation:
For the appellant: Mr G McIndoe, instructed by Latitude Law
For the respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is the appellant’s appeal against the decision of First-tier Tribunal Judge Malik promulgated 5.7.16, dismissing her appeal against the decision of the Secretary of State, dated 28.4.15, to refuse her application made for entry clearance as a spouse/partner.
2. The Judge heard the appeal on 14.6.16.
3. First-tier Tribunal Judge Zucker granted permission to appeal on 3.1.17.
4. Thus the matter came before me on 19.4.17 as an appeal in the Upper Tribunal.

Error of Law
5. At the error of law hearing I found no material error in the making of the decision of the First-tier Tribunal such as to require the decision of Judge Malik to be set aside. I reserved my reasons, which I now give.
6. The appellant sought entry clearance as a spouse/partner. The Entry Clearance Officer considered that she failed to meet the requirements of EC-P1.1 of Appendix FM. In particular, she failed to meet the English language requirements under E-ECP4.2.
7. The Entry Clearance Officer considered that whilst there was no test centre in her home country of Guinea, she could have taken the test in Sierra Leon. The appellant’s case was that she was unable to travel to a neighbouring country to take the English language test, due to the Ebola outbreak in Sierra Leon and the restrictions on travel in neighbouring countries.
8. The Home Office Guidance, IDI on Family Migration Appendix FM section 7 provides an exceptional circumstances exemption to the English language test certificate requirement. Inter alia, that the applicant is a “long-term resident of a country with no approved A1 test provision and it is not practicable or reasonable for the applicant to travel to another country to take the test.”
9. It is now accepted that at the time of the application in March 2015, the test centre in Sierra Leon had been closed between September 2014 and January-March 2015, due to the country state of health emergency. Even in March 2015, appointments were not being taken for until June 2015.
10. At the First-tier Tribunal it was submitted that the only test centre potentially accessible to the appellant was in Freetown Sierra Leon and the Ebola crisis prevented the appellant’s travel, so that no alternative test centre was reasonably accessible to the appellant in West Africa and thus that she met the exceptional circumstances exemption. However, as the refusal decision and Judge Malik noted, the appellant had travelled to Sierra Leon to submit her application and biometrics on 18.3.15 and she went back there again for a TB check on 21.1.15. Judge Malik noted that the appellant had no concerns about travel to Sierra Leon at the time, and it was only later that it was revealed that English language testing had been suspended.
11. At the First-tier Tribunal appeal hearing it was suggested that the appellant could have flown to neighbouring Senegal to take the English language test. The judge noted that there was no evidence that the ebola crisis affected travel to Sengal or that the test was not available to her there. On that reasoning, Judge Malik concluded that the exemption had not been made out.
12. The grounds of appeal submit that the First-tier Tribunal Judge erred by failing to properly address the exceptional circumstances exemption preventing her from taking the English language test. In granting permission to appeal, Judge Zucker merely stated that he considered the ground arguable.
13. In the error of law hearing before me, Mr McIndoe submitted that the judge had missed the point of the application of the exceptional circumstances exemption policy and in finding that the appellant had travelled twice to Freetown, Sierra Leon, ignored the fact that no testing was available there at the relevant time. I do not accept that reading of [20] of the decision. What the judge found was that the appellant failed to demonstrate that she had any concerns about travel to Sierra Leon at that time, noting that she stayed there with a friend for some 4-5 days, and that it was only after the refusal decision that it was discovered that there was no testing in Sierra Leon at the time. The judge then went on at [21] to consider whether the appellant could have travelled elsewhere, such as to Senegal, observing that there was no evidence that if she was prepared to travel to Freetown during the Ebola crisis, why she would not have been able to take a flight to Senegal to take the test there. The objective evidence submitted by the appellant did not suggest that Senegal was subject to the Ebola crisis.
14. Mr McIndoe submitted that travel outside the Ebola-affected area of Sierra Leon, Guinea, and Liberia was restricted at the time and in particular that there were restrictions on travel to Ghana and Senegal. However, McIndoe was unable to point me to any objective evidence that the appellant would have been unable to fly to Senegal because of the claimed restrictions.
15. In his submissions, Mr Bates pointed out from the evidence that by 28.4.15 the test centre in Sierra Leon was taking English language test booking again. The Entry Clearance Manager review was not until August 2015, by which time the appellant could have taken the test in either Sierra Leon, or Senegal.
16. In reply, Mr McIndoe repeated his submission that it was not practical or reasonable to have expected the appellant to take the test in a different country.
17. The appeal was dismissed in the First-tier Tribunal because appellant failed to demonstrate that it was neither impracticable nor unreasonable for her to travel to another country to take the test. Judge Malik’s findings were to the effect that the appellant had not considered taking the test elsewhere and that the appellant was unaware until after the application had been refused that testing had been suspended in Sierra Leon, suggesting that she had given no consideration to taking the test elsewhere.
18. Even if that was not an accurate assessment, it remains the case that even now, the appellant has failed to demonstrate that she could have flown to Senegal to take the test. It follows that she had failed to demonstrate that she meets the exceptional circumstances exemption, and continues that failure even today.
19. There is no merit in the article 8 ECHR grounds outside the Rules. The Guidance provides an exceptional circumstances exemption to the English language test and thus the Rules are not unfair, unreasonable, or incompatible with article 8 ECHR. It was open to the judge to conclude that the refusal decision was entirely proportionate, giving cogent reasons for that conclusion.
20. It follows that the appeal was correctly dismissed. There was no material error of law.
Conclusions:
21. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
I make no fee award.
Reasons: The appeal has been dismissed.

Signed

Deputy Upper Tribunal Judge Pickup

Dated