OA/13871/2012

• Status of case: Unreported
• Promulgation date: 24 Jun 2013
• Last updated on: 26 Nov 2013

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13871/2012


THE IMMIGRATION ACTS


Heard at : Field House
Determination Promulgated
On : 20 June 2013
On : 24 June 2013




Before

UPPER TRIBUNAL JUDGE KEBEDE


Between

ENTRY CLEARANCE OFFICER
Appellant
and

doreen sithole
Respondent

Representation:

For the Appellant: Mr L Tarlow, Senior Home Office Presenting Officer
For the Respondent: Mr Trademan Moyo (the Sponsor)


DETERMINATION AND REASONS

1. This is an appeal by the Entry Clearance Officer (ECO). However, for the purposes of this decision, I shall refer to the ECO as the respondent and Mrs Sithole as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

2. The appellant is a citizen of Zimbabwe, born on 23 June 1963. She applied for entry clearance to the United Kingdom to settle with her spouse, Mr Trademan Moyo. Her application was refused on 26 June 2012 on the grounds that she did not fall within any of the exemption categories in paragraph 281(i)(a)(ii) to (vi) and was thus required to provide evidence to demonstrate that she had completed a test with an approved provider, which she had failed to do. Her application was also refused on the grounds that she had not demonstrated that her sponsor had adequate funds for her accommodation and maintenance in the United Kingdom.

3. When reviewing the appellant’s application in the light of her notice of appeal, the Entry Clearance Manager noted, in a decision dated 5 December 2012, that she had provided her registration form for an English language test on 18 July 2012 but had not produced the test results. The decision to refuse entry clearance was maintained on the same grounds as previously.

4. The appellant’s appeal was heard on 19 March 2013 in the First-tier Tribunal by Judge Colvin. Judge Colvin heard from the sponsor, Mr Trademan Moyo, who explained that he had met the appellant in Zimbabwe in 1994 whilst he was the headmaster of a school where she worked as a teacher and had a relationship with her, although he was married at the time. He divorced his first wife about two years ago. He and the appellant had a child together, a daughter, born in Zimbabwe, who was currently eleven years of age. They were married on 31 March 2012. Their daughter was a British citizen and had been in the United Kingdom for five to six years. She lived with him. He had come to the United Kingdom in 2002 and was granted asylum here. The appellant was a teacher of geography and English in South Africa. The appellant and their daughter were imprisoned in Zimbabwe and subsequently went to South Africa but the appellant sent her back to the sponsor’s sister in Zimbabwe until the sponsor could make an application to bring her to the United Kingdom. They had both believed that she could do the English language test in the United Kingdom. He had been a health care worker since 2004 and earned around £2000 net a month. He had been sending money to the appellant.

5. With the documentary evidence produced for the appeal the appellant submitted her TOEIC English test results which she had completed in July 2012. In her decision, Judge Colvin commented that it was not known why the ECM did not have the appellant’s English language test results at the time of the review in December 2012. She found that the test results should nevertheless be allowed as evidence to meet the requirements of the rules. She also found that the appellant would be adequately maintained by the sponsor. The judge acknowledged that she was accepting post-decision evidence, but she considered that nothing would be gained by requiring the appellant to make a fresh application when she was able clearly to demonstrate that she spoke English to the required standard. She accordingly allowed the appeal under the immigration rules.

6. Permission to appeal to the Upper Tribunal was sought by the respondent on the grounds that the judge had wrongly accepted post-decision evidence in accepting that the appellant had met the English language requirement of the rules. The test was undertaken in July 2012 whilst the decision was made on 26 June 2012.

7. Permission was granted on 14 May 2013.

Appeal hearing and submissions

8. The appeal came before me on 20 June 2013. The sponsor was in attendance. I heard submissions on the error of law.

9. Mr Tarlow submitted that the judge had clearly erred in law as she had taken into account evidence which was not available at the date of decision, contrary to the principles in DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038. She had also failed to consider Article 8 of the ECHR.

10. Mr Moyo, in response, apologised for the delay and inconvenience and said that he and his wife were not aware that she had to do the test before coming to the United Kingdom, but she had taken it as soon as possible once she realised that she was required to. He referred to the receipt in the documents submitted confirming that the results had been sent to the UKBA and the Tribunal prior to the date of the ECM review.

11. I decided that the judge had clearly erred in law by accepting post-decision evidence, which could not be said to have been reasonably foreseeable at the time of the decision, in finding that the appellant could meet the requirement of the immigration rules. The English language test was taken after the decision to refuse her entry clearance and, as such, she could not meet the requirements of the rules.

12. Mr Tarlow then asked the sponsor some questions with a view to a decision being made in regard to Article 8. Mr Moyo gave details of his employment and salary and confirmed that he lived with his daughter and that his wife was working as a teacher in South Africa. He explained that his wife and daughter were both in prison at one time in Zimbabwe and after their release they went to South Africa. Life was very difficult for them there and his wife sent his daughter back to Zimbabwe to his sister and from there he had managed to bring her here under the family reunion provisions. He could not bring his wife at that time because he had to establish himself here first and be in a position to support her.

13. Mr Tarlow, in his submissions, simply relied on the refusal letter and said that he had nothing to add. Whilst he made no concessions, he indicated that he would have no objection to the appeal being allowed on Article 8 grounds, given the specific and exceptional circumstances in the appellant’s case.

14. I accordingly allowed the appeal on Article 8 grounds.

Findings

15. As already stated, the appellant cannot succeed under the immigration rules, given that she took the English language test and received the results after the decision to refuse her entry clearance. Her appeal is therefore dismissed under the immigration rules.

16. However, as regards Article 8, there clearly was family life between the appellant and the sponsor and their daughter at the time of the refusal of entry clearance. The decision interfered with the development of that family life and Article 8 was thus engaged. Whilst the entry clearance decision was in accordance with the law and in pursuit of a legitimate aim, I consider that the interference with the appellant’s family life is and was disproportionate. It is indeed the case that the appellant could not meet the requirements of the rules and that it was and remains open to her to make a fresh application. However, there are, I find, specific circumstances in this case which, when taken cumulatively, lead me to conclude that it would simply be unreasonable to expect her to have to do so and to deny her entry clearance on this occasion.

17. It is not now in dispute, and I accept, that the appellant would be adequately accommodated and maintained in the United Kingdom by the sponsor. The only reason why she could not meet the requirements of the rules was the failure to meet the English language requirements by taking a test. I take account of the fact that she is an English teacher and would thus reasonably be presumed to have been proficient in the English language at the date of the decision. Although her failure to undertake the appropriate English language test prior to the decision could not be blamed upon any other party, it seems that there was a misunderstanding on her part as to whether or not she was exempt (see page E14) and when she needed to take the test. She took the test as soon as possible after finding out and gained the required level. There is evidence, in the form of post office receipts, that the test certificate was sent to the UKBA in August 2012, but it seems that they did not reach the ECM for some reason. Had they done so, they may well have led the ECM to approve the application in the review in December 2012, given the specific reference therein to the absence of test results.

18. In addition, I take account of the fact that the appellant’s daughter is a young girl who clearly is at an age when she needs a mother with whom to discuss personal issues. That is evident from her letter at Appendix 3E. It is also relevant to note that the family were separated through the political situation in Zimbabwe, in which both mother and daughter were imprisoned, and not through any choice of their own. The sponsor applied for the appellant to join him as soon as he was able to, shortly after their marriage, which followed his divorce from his first wife. They have now been living apart for some time.

19. Taking all of the above into consideration, it seems to me that, in the unusual and rather exceptional circumstances of this case, the decision to refuse the appellant entry clearance to join her husband and daughter cannot be justified in the interest of immigration control and is disproportionate. I find the decision to be in breach of Article 8 of the ECHR.

DECISION

20. The making of the decision by the First-tier Tribunal involved the making of an error on a point of law. The decision has been set aside and to that extent the appeal made by the ECO is allowed. I re-make the decision and substitute a decision dismissing the appellant’s appeal under the immigration rules but allowing it on Article 8 grounds.

21. The appeal is allowed on Article 8 human rights grounds.







Signed Date


Upper Tribunal Judge Kebede