Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/15055/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 September 2016
On 11 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

ENTRY CLEARANCE OFFICER - NEW DELHI
Appellant
and

FAHIMA BEGUM
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr E Tufan, a Home Office Presenting Officer
For the Respondent: Mr M K Hasan, Counsel, instructed by KC Solicitors

DECISION AND REASONS

Introduction
1. This is an appeal by the Entry Clearance Officer against a decision of First-tier Tribunal Judge S Iqbal who, in a determination promulgated on 23 March 2016 allowed the appellant's appeal.
2. The appellant before the First-tier Tribunal Miss Iqbal (hereinafter "the claimant") is a Bangladeshi national born on 6 June 1988. She applied for entry clearance as the partner of Mr Ahmed Ali under Appendix FM of the Immigration Rules HC 395. The Entry Clearance Officer refused the claimant's application for entry clearance on 16 October 2014. The Entry Clearance Officer having noted that the claimant was not exempt from the English language requirement under paragraph E-ECP4.2 and that she was not a national of a majority English speaking country, set out that the claimant was required to produce evidence that she met the English language requirements.
3. The claimant had submitted an ETS TOEIC certificate as evidence of meeting the English language requirement. The Entry Clearance Officer refused the application because the appellant had not submitted evidence of a qualification from a recognised provider as required, ETS was not on the list of approved providers.
4. The claimant appealed against the Entry Clearance Officer's decision to the First-tier Tribunal.
The Appeal before the First-tier Tribunal
5. The First-tier Tribunal found that the appellant's test certificate dated 28 August 2014 was valid. The judge also considered that the review officer was likely on balance to have made a different decision had the evidence of a later language certificate been submitted to the Entry Clearance Manager. The judge found that the matter ought to be sent back to the Entry Clearance Officer in order for the officer to reconsider the evidence, in particular, that as the claimant had held an ETS certificate up until 22 October 2014 the Entry Clearance Officer ought to have interviewed her in in accordance with their own published guidance.
The Appeal to the Upper Tribunal
6. On behalf of the Entry Clearance Officer the Secretary of State applied for permission to appeal against the First-tier Tribunal decision to the Upper Tribunal. On 22 August 2016 First-tier Tribunal Judge Landes granted the Entry Clearance Officer permission to appeal.
Summary of Submissions
7. The grounds of appeal set out that the First-tier Tribunal Judge was wrong in law to find that the simple statement found on the government website amounted to a policy which gave rise to a legitimate expectation. Further, it is asserted that the judge was wrong in law to place any reliance on that statement given that it post-dated the refusal decision and was not a matter appertaining to the date of decision. It is further asserted that the judge was wrong to find that the ETS language certificate the claimant held was on the approved register of providers when the appellant applied for entry clearance on 7 October 2014.
8. In oral submissions Mr Tufan submitted that the issue was whether the appellant had the relevant qualification at the date of the decision and that it was clear that she did not.
9. With regard to the Tribunal's finding that the subsequent English language certificate of 28 August 2014 which by mistake was sent to the Tribunal but not to Entry Clearance Manager was in error. He submitted that this qualification post-dated the decision and could not therefore be relevant to the appeal. He submitted that the appeal could not succeed.
10. Mr Hasan indicated that, in his view, this was an unfortunate case. He acknowledged that the important document was HC 198 of 10 June 2014. He accepted that the documents the judge considered did not amount to Immigration Rules or guidance and therefore he accepted that the judge was wrong to find that the Entry Clearance Officer ought to have taken that into consideration.
11. When pressed, Mr Hasan conceded that in light of the correct documents the First-tier Tribunal's decision did contain a material error of law.
Discussion
12. I have considered the Statement of Changes HC 198 of 10 June 2014. This document makes clear that ETS was not an approved provider of English language testing services at the time that the appellant made her application in August 2014. The statement that the First-tier Tribunal Judge relies on is not the Secretary of State's guidance. It appears to be a release of information about whether or not evidence has been found of systematic cheating at providers other than ETS and information about what happened in the past rather than being designed to inform applicants that from that date ETS tests would no longer be accepted and neither does it imply that ETS tests had been accepted until 22 October 2014 subject to the applicant undergoing an interview.
13. It is clear that one of the reasons that the First-tier Tribunal Judge allowed the appeal was that the Entry Clearance Manager would have been likely to have made a different decision, that is not supporting the original refusal, had he or she seen the results of the English language test certificate submitted by the claimant in March 2015. Whilst the Entry Clearance Manager might have exercised a discretion differently, the matter under appeal was the decision taken by the Entry Clearance Officer. The later English language test certificate was not a matter which illuminated the decision made by the Entry Clearance Officer at the date of the decision.
14. At the date of the decision ETS was no longer a provider that was on the Secretary of State's list of approved providers. The claimant did not therefore provide a valid certificate and did not meet the requirements of the Immigration Rules at the date of her application. The fact that she has subsequently obtained a certificate from a provider that may be on the approved list is not relevant. The relevant date in appeals such as this is the date of the decision. Therefore, there was a material error of law in the First-tier Tribunal's decision and I set that decision aside.

Remaking the Decision
15. For the reasons given above the claimant did not satisfy the Immigration Rules at the time of her application. Her ETS TOEIC certificate was not valid as evidence of meeting the English Language requirements because ETS was not an approved provider at that date. The claimant's appeal against the entry clearance officer's decision is dismissed.
Notice of Decision

The claimant's appeal against the decision of the entry clearance officer is dismissed. The decision of the entry clearance officer stands

No anonymity direction is made.

Signed P M Ramshaw Date 11 October 2016

Deputy Upper Tribunal Judge Ramshaw