Upper Tribunal (Immigration and asylum chamber), 2020-10-28, HU/03308/2019
| Jurisdiction | UK Non-devolved |
| Date | 28 October 2020 |
| Published date | 11 November 2020 |
| Hearing Date | 12 August 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/03308/2019 |
Appeal Number: HU/03308/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03308/2019
THE IMMIGRATION ACTS
|
Heard at Manchester by Skype |
Decision & Reasons Promulgated |
|
On 12 August 2020 |
On 28 October 2020 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MRS KRUPALIBEN SANIKUMAR PATEL
(Anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr C Bates Senior Home Office Presenting Officer.
For the Respondent: Mr Z Malik instructed by Law Lane Solicitors.
ERROR OF LAW FINDING AND REASONS
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The Secretary of State appeals with permission a decision of First-tier Tribunal Judge Cockrell (‘the Judge’) promulgated on 23 August 2019 in which Mrs Patel’s appeal was allowed on human rights grounds pursuant to Article 8 ECHR.
Background
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Mrs Patel is a national of India born on 1 March 1985. The Judge records her immigration history noting that following service of IS151A form on 1 April 2015 a removal notice was served due to the fact the Secretary of State concluded that Mrs Patel had gained leave to remain in the United Kingdom by deception. Mrs Patel subsequently applied for leave to remain as the dependent spouse of her partner in his Tier 2 (Skilled Worker) application which was refused. In August 2016 Mrs Patel applied for leave to remain outside the Immigration Rules as the spouse of a settled person which was varied on 28 February 2017 to reliance upon her right to respect of family and private life (10-year route). The application was refused by the Secretary of State in a letter dated 11 February 2019. The appeal against that decision came before Judge Cockrill.
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The decision-maker concluded Mrs Patel was not eligible to remain in the United Kingdom as a partner, parent or child under Appendix FM as her partner was not British, settled, or in the United Kingdom as a refugee or with humanitarian protection leave and because Mrs Patel lives as part of the family unit with her family member. Under the private life route the decision-maker concluded Mrs Patel fell for refusal on the grounds of suitability under section S – LTR 4.2 on the basis she had made false representations for the purpose of obtaining a previous variation of leave. A reference to an application of 31 May 2012 in which Mrs Patel submitted a TOEIC certificate from Educational Testing Service (ETS). The decision-maker states that Mrs Patel’s scores taken from the test on 17 April 2012 at the Synergy Business College of London have been cancelled by ETS leading the decision-maker to be satisfied that Mrs Patel fraudulently obtained her certificate and used deception in the application of 31 May 2012.
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The decision-maker considered paragraph 276ADE(1)(iii) but noted Mrs Patel had only lived in the United Kingdom for 8 years and 1 month at the date of the application and it was not made out she could satisfy the required minimum period of 20 years continuous residence. It is also not accepted Mrs Patel will face very significant obstacles to integration into India.
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Thereafter the decision-maker considered whether exceptional circumstances had been made out sufficient to warrant a grant of leave pursuant to article 8 but found no such exceptional circumstances existed in her case for the reasons set out in the Refusal letter. The decision-maker took into account the appellant’s child pursuant to section 55 Borders, Citizenship and Immigration Act 2009 noting the child was born in the UK on 8 January 2013 but was not a qualifying child. It was therefore found any interference with a protected right will not be contrary to the best interests of the child and was proportionate to any interference.
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The matter came before Judge Cockrell sitting at Taylor House on 6 August 2019 who sets out findings of fact between [27 – 34] of the decision under challenge in the following terms:
27. This appellant faces the allegation that she had used deceptive means in order to gain a TOEIC. I have set out already the point that the burden of proof does lie upon the respondent and the 3 stage process that needs to be undertaken when analysing a case of this nature.
28. What is critically important in this appeal is that Mr Malik has made plain that this issue of whether or not the appellant submitted a fraudulently obtained TOEIC by using a proxy to sit the test has already been determined by this Tribunal. Reference in that regard is made to the decision of the First Judge in relation to the appellant’s husband and the specific findings of fact made by that First Judge. What is also very important indeed to understand in the context of this appeal is that the findings were quite emphatic that the respondent had not discharged the burden and deception had not been shown.
29. The only point really made on behalf that the respondent by Mr Nath is that I should pay regard to the report of Professor French. Mr Malik responds to that by emphasising that that report predated the decision of the First Judge by a considerable degree and that no proper explanation has been provided as to why it was not forthcoming before that First Judge.
30. Already in this document I have set out in some detail the relevant authorities to which my attention was very helpfully drawn by Mr Malik. The conclusion that I reach is that those findings of fact made by the First Judge in relation to this appellant are a suitable and proper starting point for me on conventional Devaseelan principles. What is also important to stress is that nothing has really been added before me which would enable a different conclusion to be reached properly.
31. I am guided by the case law to which my attention was drawn, notably the decision in Mubu, and further then the Court of Appeal decision in BK (Afghanistan). In the light of those authorities it seems to me that the conclusion that has to be drawn in the circumstances is that the factual findings of that First Judge are to be maintained, as of course that means inevitably that the appellant succeeds in her appeal.
32. For the avoidance of any doubt, I was not provided with any explanation at all by Mr Nath as to why that report from Professor French had not been made available to the First Judge.
33. In this case there was no application made for an anonymity direction and no such direction was made by me in the circumstances.
34. In conclusion, therefore, I adopt the findings of fact made in relation to this appellant by that First Judge and in the circumstances her appeal is allowed. It is allowed on human rights grounds (Article 8).
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The Secretary of State sought permission to appeal asserting, inter alia, the Judge made a material error of law in allowing the appeal by default without fully considering any evidence from the appellant and in not allowing the Secretary of State to prove her case. The grounds assert the Judge failed to take into account witness statements provided in support of the allegation Mrs Patel had exercised deception by the use of a proxy to undertake the English language test. The grounds assert on the basis of the material provided the Secretary of State had discharged the requisite evidential burden which fell to the appellant to offer an innocent explanation which has not occurred in this case. It is asserted the Judge erred in failing to appreciate that the evidential burden had been met. The application for permission also asserts there was no good reason to allow the appeal under article 8.
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Permission to appeal was granted by another judge of the First-tier Tribunal on 17 December 2019 on the basis it is said to be arguable that the Judge has not considered in adequate detail the evidence submitted by the Secretary of State which was absent from the spouse’s earlier appeal, and the Judge simply relied upon the earlier judgement which was based on the lack of documentation then produced.
The written submissions
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The Secretary of States initial submissions:
WRITTEN SUBMISSIONS ON ERROR OF LAW INTRODUCTION:
1. The SSHD asks the Tribunal to admit this document as the SSHD’s written submissions in response to the UT’s directions.
2. The SSHD refers to Mrs. Patel as the Appellant (“A”) for ease of reference with the FtT decision.
THE SSHD’S SUBMISSIONS ON THEGROUNDS OF APPEAL:
3. The SSHD has laid out two Grounds of Appeal in the document dated 2nd September 2019 relating to the FtT’s application of Devaseelan and the later findings in respect of Article 8 ECHR.
4. In respect of Ground 1, the SSHD asks the UT to treat this document as laying out the particular ambit of that legal challenge.
5. The SSHD respectfully asserts that the FtJ did not lawfully apply the Court’s decision in The...
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