Upper Tribunal (Immigration and asylum chamber), 2018-05-11, HU/19241/2016
| Jurisdiction | UK Non-devolved |
| Date | 11 May 2018 |
| Published date | 01 June 2018 |
| Hearing Date | 25 April 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/19241/2016 |
Appeal Number: HU/19241/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/19241/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 25 April 2018 |
On 11 May 2018 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
mr manpreet singh
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr M Moriarty, Counsel
DECISION AND REASONS
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Although the appellant in these proceedings is the Secretary of State, I refer to the parties as they were before the First-tier Tribunal.
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The appellant is a citizen of India born on 24 February 1990. He arrived in the UK on 3 December 2011 as a student, with leave to remain subsequently granted until 30 March 2016. On 17 March 2016 he made an application for leave to remain on human rights grounds, with reference to Article 8 of the ECHR, as a partner and parent. His application was refused in a decision dated 26 July 2016.
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The appellant appealed against that refusal and his appeal came before First-tier Tribunal Judge Row (“the FtJ”) on 11 August 2017, the result of which was that the appeal was allowed.
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The respondent’s decision accepted that the appellant has a ‘qualifying’ relationship with his British citizen partner, and did not dispute that he has a parental relationship with his son B and his partner’s son S. However, the basis of the refusal to grant leave to remain was in terms of the suitability requirements of the Article 8 Rules. The respondent was of the view that the appellant had obtained an English language test certificate by deception and that he had used that TOEIC certificate in support of an application for leave to remain dated 13 February 2013.
The FTJ’s decision
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The FTJ referred to the respondent’s reliance on the now familiar ‘generic’ witness statements in ETS cases, namely from Peter Millington and Rebecca Collings. He also referred to a printout which indicated that a test taken by the appellant on 28 November 2013 was invalid because the test had been taken by a proxy.
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He concluded that that generic evidence provided a prima facie case that the test was taken by proxy, and that it was open to the appellant to rebut that case. He referred to the appellant’s evidence that he took the test himself. However, he said that it was perhaps surprising that having been effectively accused of conspiracy to defraud in the decision letter, the appellant had taken no steps to protest his innocence to ETS and to demand an explanation from them. The appellant’s evidence was that he had sent them an email. However, the FTJ said that he did not produce a copy of that email at the hearing and concluded that there was no email.
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At [9] the FTJ said that there were nonetheless, matters that caused him to doubt the accuracy of the information provided by ETS to the respondent. He noted that the data provided by ETS indicated that two tests were taken, one at New London College on 28 November 2012 and the other at Manchester College of Accountancy and Management on 18 June 2013. The appellant’s case was that he never took any test at Manchester College. The respondent had accepted that the appellant never took any such test at Manchester College and that the information provided by ETS in that respect was incorrect. The FTJ said that it appeared that the printed data related to someone else called Manpreet Singh, with a different date of birth, 2 March 1990. However, he referred to the fact that the printout indicated that both people referred to had the same passport number, which was the appellant’s passport number. He said that there was no explanation of how that had happened.
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He then stated that those facts “hardly inspires confidence that the information provided by ETS can be relied upon”.
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In the next paragraph he concluded that “On balance” the appellant had rebutted the prima facie case against him and that the respondent had not shown that the appellant took the test by proxy. Accordingly, he concluded that the appellant met the suitability requirements of Appendix FM. He further concluded that he was able to meet the requirements of paragraph EX.1 and similarly, s.117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
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He found that the appellant had a genuine parental responsibility with his son B, and although he may have such a relationship with his partner’s older child, he concluded that it was not necessary to consider that matter. The issue, he said, was whether it was reasonable to expect the appellant’s child to leave the United Kingdom.
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He next referred to the respondent’s guidance dated August 2015 in relation to Appendix FM. He referred to the fact that the Presenting Officer before him indicated that that guidance still represented the respondent’s position. He said that the respondent’s position was that it was not reasonable to expect a British citizen child to leave the EU.
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He thus concluded that as the appellant met the requirements both of paragraph EX.1 and s.117B(6) of the 2002 Act, the public interest does not require his removal. Thus, the decision to refuse leave to remain represented a disproportionate interference with his Article 8 rights, and on that basis the appeal was allowed under Article 8.
The grounds and submissions
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The grounds on which permission to appeal was granted contend that the FTJ’s reasons for finding the appellant had rebutted the evidence against him are inadequate. Although the FTJ had found that the information contained in the printed data did not inspire confidence, it is said in the grounds that the information was nevertheless accepted by the FTJ and Counsel for the appellant.
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Given that the FTJ had noted that the appellant had failed to take any steps to protest his innocence, and that he did not send any email as claimed, that cast doubt on the appellant’s credibility in respect of his innocent explanation. Thus, it is argued that there was no basis for the judge’s finding that the appellant had rebutted “the respondent’s evidence”, as there was no further evidence, other than that which was rejected.
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Reliance is placed on the decision in MA (ETS - TOEIC testing) Nigeria [2016] UKUT 450 (IAC), a decision which the grounds assert was relied on by the respondent’s representative at the hearing. Thus, it is said that there may be reasons why a person who is able to speak English to the required level would nevertheless cause or permit a proxy candidate to undertake an ETS test on their behalf, or otherwise to cheat. It is said that the FTJ had erred by failing to give adequate reasons for holding that a person who speaks English would therefore have no reason to secure a test certificate by deception.
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The grounds continue that although the respondent accepts that the ETS verification system is not infallible, it is adequately robust and rigorous. In any event, the respondent must necessarily rely on information provided to her by an applicant which has been certified as being true by a third party. If the third party withdraws the certificate, as here, and is no longer able to vouch for the validity of the information, then the basis of leave is also removed.
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It is thus argued that the FTJ’s proportionality assessment was coloured by his error in respect of his finding that the appellant had rebutted the assertion of deception. In addition, he had failed to identify compelling circumstances indicating a breach of Article 8 (outside the Rules).
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Lastly, it is said that there was nothing to prevent the appellant returning to India in order to apply for the correct entry clearance. Any separation would be temporary and proportionate in the interests of an effective immigration control.
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In oral submissions, Mr Melvin relied on the grounds. He accepted that it is not apparent from the FTJ’s decision that he made any findings in terms of the appellant’s English language ability vis-à-vis the contention that his decision was contrary to the decision in MA (Nigeria). Mr Melvin indicated that there was a note or minute from the Presenting Officer who appeared at the hearing before the FtJ stating that MA (Nigeria) was relied on, although that note has not previously been relied on, was not referred to in the grounds and has not been served.
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It was submitted that although the FTJ had recognised the error in relation to the other test that the appellant was said to have taken, that was not a sufficient basis from which the FTJ could have concluded that the appellant had rebutted the allegation of deception. Reliance was placed on the judicial review decision of the Upper Tribunal in R (on the application of Nawaz) v Secretary of State for the Home Department (ETS: review standard/evidential basis) [2017] UKUT 00288 (IAC). Reference was made in particular to [43], [45] and [47]. Likewise, the decision of the Court of Appeal in Ahsan v...
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