Upper Tribunal (Immigration and asylum chamber), 2020-11-18, HU/12925/2019
| Jurisdiction | UK Non-devolved |
| Date | 18 November 2020 |
| Published date | 07 December 2020 |
| Hearing Date | 05 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/12925/2019 |
Appeal Number: HU/12925/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12925/2019 (V)
THE IMMIGRATION ACTS
|
Heard at Cardiff Civil Justice Centre Remotely by Skype for Business |
Decision & Reasons Promulgated |
|
On 5 November 2020 |
On 18 November 2020 |
|
|
|
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
Adil Mehboob
Respondent
Representation:
For the Appellant: Ms S Rushforth, Senior Home Office Presenting Officer
For the Respondent: Mr R Solomon, instructed by Lumbini Solicitors
DECISION AND REASONS
-
Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal: Adil Mehboob (appellant) and the Secretary of State for the Home Department (respondent).
Introduction
-
The appellant is a citizen of Pakistan who was born on 2 March 1986. The appellant entered the United Kingdom on 4 March 2012 with entry clearance as a Tier 4 (General) Migrant. On 12 June 2013, the appellant applied for further leave as a Tier 4 (General) Migrant. He relied on a TOIEC English language test which he had taken on 19 March 2013. His leave was extended until 27 June 2015. On 9 October 2013, the appellant married in the UK. On 15 April 2014, the appellant applied for leave as a dependent of a Tier 4 Student which was granted until 4 March 2015. On 3 March 2015, the appellant applied for leave to remain as a dependent spouse but this was refused on 2 July 2015.
-
On 24 November 2016, the appellant’s spouse was granted ILR. On 7 December 2016, the appellant applied for leave to remain on the basis of his private and family life. However, on 22 August 2017 he applied for leave to remain as the spouse of a settled person. As this was before his application made on 7 December 2016 under Art 8 was determined, that application was voided on the basis that it had been varied to an application as a spouse. On 22 August 2017, the appellant was refused leave as a spouse.
-
The appellant appealed that decision to the First-tier Tribunal. In a decision sent on 12 July 2018, Judge Veloso dismissed the appellant’s appeal under Art 8 of the ECHR. In the course of that decision, the judge found – as the respondent had contended – that the appellant had dishonestly obtained an English Language certificate (TOEIC) by using a proxy to take part of that test on the appellant’s behalf which he had relied on in his 12 June 2013 application for leave. Permission to appeal was subsequently refused.
-
On 27 December 2018, the appellant made a further application for leave based upon Art 8 and his family life with his British citizen spouse.
-
On 10 July 2019, the Secretary of State refused that application under the ‘partner’ rule relying, again, on the contention that the appellant had obtained a TOEIC English Language certificate by deception and had used that certificate in order to obtain leave as a Tier 4 Student in his successful application made on 12 June 2013. In addition, the Secretary of State concluded that the appellant could not succeed under Art 8 outside the Rules.
The Appeal to the First-tier Tribunal
-
The appellant appealed to the First-tier Tribunal. A hearing took place before Judge Abdar on 13 November 2019. At that hearing, the appellant was represented by Counsel but the respondent was not represented.
-
At the hearing, the appellant’s Counsel told the judge of the adverse decision of Judge Veloso. However, neither the appellant nor the respondent (who was of course not represented) put a copy of that decision before the judge. Having cited the relevant decision of SM and Kadir (ETS – Evidence – Burden of Proof) [2016] UKUT 229, the judge noted that the burden of proof was on the respondent. At paras 31-36, the judge gave his reasons for concluding that the respondent had failed to establish that the appellant had previously used a fraudulently obtained English language certificate:
“31. With the onus being on the Respondent, the Respondent has not served any evidence on the Tribunal on the allegations against the Appellant and, on that basis, I find that the Respondent has not discharged the Respondent’s burden of raising a prima facie issue of deceit.
32. I am informed by Mr Aslam [Counsel for the appellant] that there was an appeal against the decision of 22 August 2017, which was dismissed by the Tribunal on 13 December 2018 [it was actually 12 July 2018], corroborated by the Tribunal’s records. However, neither party has served the copy of the decision on the Tribunal and I am unable to treat the Tribunal’s decision as a starting point, as per Devaseelan [2002] UKIAT 702.
33. It is clear from the appellant’s credible evidence in his statement that the appellant feels very aggrieved by the Respondent’s conduct, particularly as the Respondent has not served any evidence to substantiate the allegations. On the evidence before me, I assume that no evidence on the alleged ETS fraud was served on the appellant or filed with the Tribunal previously either. Even if I am wrong, the fact remains that the evidential burden is on the Respondent and the Respondent has failed to discharge that burden by failing to substantiate the allegations.
34. I also take into consideration the appellant’s IELTS certificate, dated 28 November 2011, in which the appellant scored 5.5 in his speaking test and the fact that the appellant entering the UK and undertaking a course of study in English prior to the TOEIC the appellant undertook to find (sic) that the appellant would have had the necessary English skills to pass the TOEIC on 19 March 2013. I give lesser weight to the appellant’s ESOL Level B1.1 certificate of 2 December 2016 as it significantly postdates the TOEIC, nevertheless I find it to be a credible indication of the appellant’s extant English skills.
35. In making my findings, I keep in mind that it has also become trite law, see Adedoyin [2010] EWCA Civ 773 amongst others, that when falsehood is relied upon by the Respondent, the onus is on the Respondent to show intentional dishonesty and I find that the Respondent has failed to discharge that burden.
36. For these reasons, on the evidence before me, I find the Respondent has failed to discharge the evidential burden of proof in raising a prima facie case against the appellant and I find the appellant does not fall foul of S-LTR.1.6. of the Rules.”
-
Then at paras 37-41, the judge went on to find that the appellant satisfied the substantive requirements of the Rules as a “partner” and that, as he complied with the requirements of the Rules, he had established a breach of Art 8 following TZ (Pakistan) and Another v SSHD [2018] EWCA Civ 1109.
The Appeal to the Upper Tribunal
-
On 21 April 2020 the First-tier Tribunal (Judge Fisher) granted the Secretary of State permission to appeal against the judge’s decision to allow the appellant’s appeal under Art 8.
-
In the light of the COVID-19 crisis, on 1 July 2020 the Upper Tribunal (UTJ Bruce) issued directions expressing the provisional view that the issues of whether the First-tier Tribunal’s decision involved the making of an error of law and, if so, whether the decision should be set aside, should be determined without a hearing. The parties’ submissions were invited both on the substantive issues in the appeal and also on whether the appeal could be determined without a hearing.
-
In response to those directions, the Secretary of State filed submissions on 8 July 2020. The appellant filed submissions dated 21 July 2020. Finally, in response to those submissions, the Secretary of State filed further submissions dated 28 July 2020.
-
Following those submissions, the Upper Tribunal (UTJ Finch) directed on 19 August 2020 that the appeal should be listed for an error of law hearing to be conducted remotely.
-
That appeal was listed before me on 5 November 2020. I was based at the Cardiff Civil Justice Centre and Ms Rushforth, who represented the Secretary of State, and Mr Solomon, who represented the appellant, joined the hearing by Skype for Business.
-
At that hearing, in addition to the previous written submissions, I heard oral submissions from both representatives. In addition, I invited the representatives to make further written submissions in respect of the Court of Appeal’s decision in AA (Somalia) v SSHD [2007] EWCA Civ 1040, a decision which I drew to the attention of the representatives during their submissions at the hearing. In the result, I received written submissions from both representatives in respect of AA(Somalia). I am grateful to both representatives for their helpful submissions.
The Grounds of Appeal
-
The Secretary of State relies on number of grounds of appeal.
-
First, having been made aware of the Tribunal’s earlier adverse decision in relation to the appellant, it was incumbent upon the judge to establish what findings had been made and whether, following Devaseelan, the additional evidence presented at the hearing permitted him, or entitled him, to...
To continue reading
Request your trial