The Secretary of State for the Home Department v Krupaliben Sanikumar Patel
| Jurisdiction | England & Wales |
| Judge | Lord Justice William Davis,Lord Justice Moylan,Lady Justice King |
| Judgment Date | 21 January 2022 |
| Neutral Citation | [2022] EWCA Civ 36 |
| Docket Number | Case No: C5/2021/0150 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 36
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Hanson
HU/03308/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
Lord Justice Moylan
and
Lord Justice William Davis
Case No: C5/2021/0150
Zane Malik QC and Zeeshan Raza (instructed by Law Lane Solicitors) for the Appellant
Nicholas Chapman (instructed by Government Legal Department) for the Respondent
Hearing date: 15 December 2022
Approved Judgment
Introduction
The appellant appeals against the decision of Judge Hanson of the Upper Tribunal (the “UT”) promulgated on 28 October 2020 allowing the appeal of the Secretary of State for the Home Department (the “SSHD”) from the decision of Judge Cockrill of the First-tier Tribunal (the “FTT”). Judge Cockrill had allowed the appellant's appeal against the refusal of the SSHD to grant her leave to remain in the UK.
In allowing the appellant's appeal Judge Cockrill had concluded that in the circumstances of the case he should follow the factual findings of a different FTT judge, Judge Hodgkinson, made at an earlier hearing involving an appeal by the appellant's husband. At the earlier hearing the SSHD had relied on alleged deception by the appellant as justifying a revocation of the appellant's husband's leave to remain. Judge Hodgkinson had concluded that the alleged deception had not been established.
Judge Hanson determined that Judge Cockrill had made an error of law in following the findings of Judge Hodgkinson. The appellant's case is that Judge Hanson made the error of law. She argues that Judge Cockrill adopted the correct approach in relation to the earlier factual findings. Thus, Judge Cockrill's decision should be restored.
The SSHD supports the reasoning and the decision of Judge Hanson. She submits that Judge Cockrill adopted an impermissible approach to the earlier factual findings which were made in proceedings involving a different party.
Background
The appellant first arrived in the UK in March 2010 with entry clearance as a student. This was valid until February 2012. In June 2010 the appellant married Sanikumar Patel in India. He had been in the UK since 2007 with entry clearance and subsequently leave to remain as a student. The appellant and her new husband returned to the UK shortly after their marriage, each with leave to enter as a student valid until 2 April 2012.
In September 2011 the appellant applied for leave to remain as a student. Her husband was included as a dependent in that application. In October 2011 leave to remain was granted to the appellant and her husband valid until 31 May 2012.
On 17 April 2012 the appellant purported to have taken an Educational Testing Service (“ETS”) English speaking and writing test. On 20 April 2012 she claimed to have taken the reading and listening tests. She relied on the results of those tests when in May 2012 she applied for leave to remain as a student. As before her husband was included as a dependent in this application. On 1 August 2012 leave to remain was granted to the appellant and her husband valid until 10 April 2015.
On 26 March 2015 the appellant's husband applied for leave to remain as a Tier 2 skilled worker. The appellant was included in that application as a dependent of her husband i.e. the position as it had been hitherto was reversed. However, before any decision on that application was made, the appellant and her husband on 1 April 2015 were served with a notice in form IS151A. This notified them of their liability to removal by reason of alleged deception by the appellant in relation to the ETS test. It was said that she had used a proxy to take the tests. The effect of the notice inter alia was to revoke any pre-existing leave.
On 19 May 2016 the application made in March 2015 was refused. There was a right for administrative review of that refusal. No such review was sought whether by the appellant or her husband.
At some point shortly after this refusal, the precise date not being clear from the material I have seen, the appellant and her husband made an application for leave to remain outside the Immigration Rules. Early in 2017 the appellant's husband varied his application to one based on 10 years' residence pursuant to Rule 276B. On 19 June 2018 that application was refused. The SSHD found that he was not entitled to leave under this Rule because he had no valid leave when his application was made. That was due to the service of form IS151A. The SSHD concluded that there were no exceptional grounds warranting a grant of leave to remain outside the Rules by reference to Article 8. The appellant's husband appealed against that refusal. The hearing of the appeal was on 8 January 2019. The decision was promulgated on 17 January 2019.
The appellant also varied her application early in 2017. She applied for leave to remain via the Family and Private Life route. She relied on her family life with her partner and their child who was born in January 2013. Her application was refused on 11 February 2019. The SSHD considered the application only under the private life route since her husband was not British and had no leave to remain. The application so limited was refused on grounds of suitability because the SSHD was satisfied that the appellant had “made false representations for the purpose of obtaining a previous variation of leave”. The decision letter set out in some detail the evidence on which the SSHD relied in relation to the false representations. The SSHD went on to consider whether there were exceptional circumstances justifying leave to remain outside the Rules. None was found to exist. The appellant's appeal against that refusal was heard on 6 August 2019. The decision was promulgated on 23 August 2019.
The hearing before Judge Hodgkinson
At the core of the appellant's husband's appeal was the proposition that the appellant had not exercised any deception. Although I have not seen the grounds of appeal, it is clear from the decision of Judge Hodgkinson that the issue of the alleged deception was central to the appeal. The SSHD relied on the deception to justify the refusal on grounds of suitability. Thus, Judge Hodgkinson considered that he had to make findings in relation to the alleged deception. That was plainly the correct course.
The appellant had made a detailed witness statement for the purposes of her husband's appeal. It dealt with the circumstances of the ETS tests which she said that she took in a proper fashion without any proxy being used. It set out her various educational achievements which she said demonstrated a strong command of English. The appellant attended the hearing. She gave evidence. However, she was not cross-examined by the presenting officer acting on behalf of the SSHD. She simply adopted her witness statement.
The SSHD had filed no evidence relating to the ETS tests taken by the appellant. At the start of the hearing the presenting officer had applied for an adjournment of the hearing of the appeal. This was said to be justified because the appellant's application for leave to remain had yet to be determined by the SSHD. The argument was that it would be sensible for the appeals of the appellant and her husband to be heard together. However, no indication was given as to when a decision in relation to the appellant's application would be made. Though not mentioned by Judge Hodgkinson, it might be said that the application for an adjournment appeared to prejudge the outcome of the appellant's application. There could hardly be an appeal unless the application for leave were refused. In any event, Judge Hodgkinson noted that the SSHD had not served what he referred to as the “usual bundle of documents” to be expected in any case where deception in relation to ETS tests was in issue. The response of the presenting officer was that the absence of this evidence was a further reason to adjourn the hearing and that the evidence had not been served because the deception alleged was exercised by the appellant i.e. not the party whose appeal was to be considered by Judge Hodgkinson. Judge Hodgkinson was unimpressed by this proposition. The husband's leave had been terminated by reason of the appellant's alleged deception. It was incumbent on the SSHD to produce the relevant evidence at the hearing. There was no good reason for the failure to do so. Therefore, the application for an adjournment was refused.
Given that the SSHD had adduced no evidence to support the allegation that the appellant had used a proxy to take the ETS tests and/or that deception had been used, Judge Hodgkinson concluded that the SSHD had not discharged the burden of proving deception. His finding was that “the alleged deception has not been established”. The consequence of that finding was a conclusion that the notices in form IS151A had been served wrongly. However, Judge Hodgkinson said that the notices remained valid. No attempt had been made to appeal against the notices. The leave of both the husband (whose case he was considering) and the appellant had been revoked notwithstanding the fact that the notices should not have been served.
In the light of the revocation of leave Judge Hodgkinson went on to consider whether the husband's appeal could succeed under Article 8 outside the Immigration Rules. He concluded that there were no exceptional or compelling circumstances warranting a grant of leave to remain...
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