Upper Tribunal (Immigration and asylum chamber), 2009-03-12, [2009] UKAIT 13 (MD (Judge's knowledge, standard of English))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Deputy President, Senior Immigration Judge Grubb |
| Status | Reported |
| Date | 12 March 2009 |
| Published date | 17 March 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | [2009] UKAIT 13 |
| Hearing Date | 12 March 2009 |
| Subject Matter | Judge's knowledge, standard of English |
MD (Judge’s knowledge; standard of English) Pakistan [2009] UKAIT 00013
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
No hearing
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb
Between
MD
Appellant
and
ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent
1. An Immigration Judge who believes that, in dealing with other cases, he has developed a specialised familiarity with a particular sort of evidence, that causes him to reach an adverse view of the genuineness of evidence produced to him, ought not to act on that view without giving the parties an opportunity to deal with the point.
2. An appellant may be able to make himself understood in written English statements produced in his own time without having the ability in English necessary to follow an advanced course dealing with abstract concepts.
DETERMINATION AND REASONS
1. The appellant, a national of Pakistan, appealed to the Tribunal against the decision of the Respondent Entry Clearance Officer on 25 September 2007 refusing him Entry Clearance as a student. An Immigration Judge dismissed the appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
2. The appellant is outside the United Kingdom and has no nominated representative in the United Kingdom. This appearing to us to be a suitable case in which to do so, we have exercised our discretion to determine this reconsideration without a hearing, as we are permitted to do by rule 15(2)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (as amended).
3. The respondent stated that he refused the application because he was not satisfied that the appellant met the requirements of subparagraphs 57(ii) and (vii) of the Statement of Changes in Immigration Rules, HC 395. That is to say, he was not persuaded that the appellant was able and intended to follow his course, or (as he makes clear by the text of the notice of refusal) that there were sufficient funds available to the appellant to enable him to meet the costs of the course and his maintenance and accommodation during it.
4. In his determination dismissing the appeal the Immigration Judge begins by alleging that the application was refused because the appellant could not meet the ‘following requirements of paragraph 57’, and then sets out paragraph 57 in full. It is not clear how he reaches the view that the respondent thought that none of the requirements of para 57 were met, and it seems to us that that of itself would be sufficient to amount to a material error of law, in that it is extremely difficult to say that the Immigration Judge would himself necessarily have reached the view he did on the outcome of the appeal if he had appreciated the limited nature of the respondent’s refusal.
5. The Immigration Judge continues his determination by deciding that the documentation produced by the appellant to support his case should be rejected for a number of reasons. The IELC diploma, said to attest the appellant’s abilities in the English language, is, he says, ‘an obvious forgery’. He draws on his own knowledge and experience to make this judgment, stating that he has seen ‘very many genuine IELC certificates’, and that this one has ‘plainly been produced on a word processor’ and ‘is not in the usual form with the score achieved in the test’.
6. We are not in a position specifically to doubt what the Immigration Judge says about having seen many genuine IELC certificates, although bearing in mind that, as the certificate itself makes clear, the abbreviation stands for ‘Irich English Language Centre’, a private institution in Peshawar founded in 1998, his assertion may be regarded as implausible. What is clear, however, is that if the Immigration Judge thought he had the specialised knowledge necessary to detect forgeries of IELC certificates, he should have declared it to both parties before acting on it. Further, the respondent had cast no doubt on the genuineness of the certificate: and in those circumstances although the Immigration Judge was clearly entitled to raise the issue, he ought not to have determined it against the appellant without giving him an opportunity to deal with the point. Further again, there is no trace in the determination that in reaching his conclusion the Immigration Judge bore in mind that forgery in a civil case requires proof to a high standard, the burden of proof being on the party relying (or, in a case such as this, presumed to rely) on the allegation of forgery. His treatment of this document is a further clear error of law, possibly compounded by his confusion of this certificate with some other document of which he had indeed seen many examples.
7. The Immigration Judge went on to reject other documents because he thought they had been prepared on ‘the word-processor’ and others because they were self-serving or derived from members of the appellant’s family. These were again points not previously taken against the appellant, and of which he ought to have been given notice if they were to motivate a decision against him. In reaching his conclusions the Immigration Judge referred, as the appellant has pointed out in his grounds for reconsideration, to a part of the application form that does not appear to exist.
8. For the foregoing reasons we find that the Immigration Judge materially erred in law in making his determination. We must therefore substitute a determination of the appeal.
9. As we have said, the respondent took two specific points against the appellant. He has had ample opportunity to deal with those points in the documents accompanying his appeal. We take them in turn.
10. The rules require that the appellant be able to undertake his course. In this case the course proposed is an Advanced Diploma in Business Management, taught from the beginning in English, awarded by the Association of Business Executives, a UK body that we have no reason to suppose does not endeavour to ensure that its advanced qualifications are awarded only to those who in a UK context are worthy of them. The crucial question is whether the appellant’s abilities in English are sufficient. The respondent decided not to accept the IELC certificate as evidence of the appellant’s ability to follow the course. He pointed out that there was no independent evidence of the appellant’s abilities in English from any body that would be recognised in the UK as one whose opinions had weight. That is correct as far as it goes, but given that in applications under para 57 there is no specific requirement for an opinion from such a body we must do what we can with that material the appellant has supplied.
11. He says in his grounds of appeal that he has studied English and has studied in English (in Pakistan) for many years. On the other hand, he now relies on a certificate from a body which itself is apparently unable to supply certificates in standard English. The printed parts of the form read (the bracketing of what might be otherwise regarded as the title of the certificate is a feature of the original):
“(Diploma in English Language) ... Awarding to Mr/Miss/Mrs. ... On successful completion of the advanced level of English Language at...
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