Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13959/2014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 23rd November 2015
On 4th January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

LATIFIA JAWID
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: The Sponsor in person
For the Respondent: Ms C Johnstone, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Before the Upper Tribunal the Secretary of State becomes the appellant. However, for the avoidance of confusion and to be consistent, I shall continue to refer to the parties as they were before the First-tier Tribunal.
2. On 14th September 2015, in a renewed application, Upper Tribunal Judge Kopieczek gave permission to the respondent to appeal against the decision of Judge of the First-tier Tribunal Place in which she allowed the appeal against the decision of the respondent to refuse entry clearance as the partner of Rajab Ali Jawid in accordance with the partnership provisions set out in Appendix FM of the Immigration Rules. In particular, the respondent applied paragraph S-EC.2.2(a) requiring that the application should be refused where, false information, representations or documents had been submitted in relation to the application. The respondent alleged that two ETS TOEIC English language certificates (one for speaking and one for listening and reading) were invalid.
3. When granting permission Judge Kopieczek noted that the grounds of application showed that the judge had before her a datasheet from the respondent and two "general" witness statements indicating that the test taken by the appellant on 22nd February 2012 was invalid as explained in a witness statement by Peter Millington and that, as asserted in the grounds, the datasheet revealed that the appellant's test was taken in England and not in Pakistan. Thus, he concluded that, notwithstanding other reasons give by the judge for resolving the appeal in favour of the appellant, it was arguable that the judge erred in concluding that the evidence was not specific enough to establish the use of deception.
4. At the hearing before me in the Upper Tribunal the appellant's representatives, IAS (UK) Ltd, did not attend. I therefore assisted Mr Jawid, the sponsor, to give evidence in support of the appeal. I did so by confirming with him his understanding of the reasons for refusal dated 13th October 2014 and the points made by the respondent in the application before the Upper Tribunal. I also noted that the appellant's case was supported by an e-mail from the sponsor's MP which, amongst other things, refers to the ill-health of the sponsor.
5. Ms Johnstone confirmed that the grounds of application were relied upon. She drew attention to paragraph 21 of the decision in which reference was made to the document produced by ETS in cases where they considered that a proxy had taken the test on behalf of the applicant. She also contended that the ETS spreadsheet, a copy of which was handed to me, did not show that the appellant had a writing score so her test result would have been invalid in any event. She also asserted that the applicant could not have taken the test in Pakistan. She agreed, however, that the writing test issue which she had raised had not been put to the judge.
6. Mr Jawid addressed me in English. He insisted that his wife had taken the test properly pointing out that it had been performed online from Pakistan which, he submitted, accounted for the allegation that it had been taken in UK.
7. After considering the matter for a few moments, I announced that I was satisfied that the decision of the First-tier Judge did not show an error on a point of law and should stand. My reasons for that conclusion now follow.
Conclusions
8. The decision by the experienced First-tier Judge is comprehensive and cogently reasoned. In particular, the judge was entitled to take into consideration evidence showing how the appellant had prepared for her English language tests through private tuition in Pakistan. She examines and gives cogent reasons for accepting the appellant's explanation of the delay between taking her test and making her application, which would account for any perceived inconsistencies in the interview of the appellant on 9th October 2014 about which the judge was entitled to reach the conclusions set out in paragraph 27.
9. Further, the judge fairly acknowledged that there had been significant problems with ETS tests but was not wrong to conclude that the documents provided by the respondent at the hearing did not show there was a specific problem with the test taken by the appellant or the certificates provided as a result. Additionally, the judge was able to support her conclusions about the inadequacy of the evidence provided by pointing out that the appellant was able to answer A1 level English questions when interviewed over the telephone. Most significantly, the judge was correct to refer to the interviewing officer's conclusions in a settlement interview template, where it is stated that the applicant had answered questions in a fluent manner suggesting she had not been coached and that she had achieved A1 English language proficiency and had obtained the ETS certificate legitimately. This amounts to a significant inconsistency with the respondent's subsequent allegations in respect of which, the judge was entitled to reach conclusions favourable to the appellant.
10. As to the issues concerning the location of the test and the respondent's recent observation that the ETS spreadsheet does not suggest that the appellant achieved a score in writing, these were not raised in the refusal nor, I conclude, put to the judge at the hearing. In any event, as the refusal notice comments, the appellant had claimed that she had taken the test in Quetta on the internet. In the absence of further explanation from the respondent, I conclude that the test taken on the internet might well be recorded as a test taken in UK. Clearly the appellant was not in the United Kingdom and significantly more information would be required from the respondent to show that a proxy had taken the test in UK on behalf of someone who was abroad. Further, the issue relating to the writing test details was not put to the judge and so she cannot be expected to have dealt with it. In any event, the evidence which supports this allegation is not conclusive as the ETS spreadsheet to which I was referred could not be assumed to show that there was no writing score.
11. It was entirely appropriate for the judge to examine and reject the challenge to the strength and quality of the evidence underpinning the respondent's decision in relation to the test result (R (on the application of Gazi) (ETS - judicial review - IJR) [2015] UKUT 00327 (IAC). The judge's conclusions are comprehensive and cogently argued allowing her to reach the conclusion which was open to her.
Notice of Decision
The decision of the First-tier Tribunal does not show an error on a point of law and shall stand.
Anonymity
Anonymity was not requested before the Upper Tribunal nor was any anonymity direction made by the First-tier Tribunal.

Signed Date

Deputy Upper Tribunal Judge Garratt