Upper Tribunal (Immigration and asylum chamber), 2021-08-19, HU/02153/2019 & HU/02149/2019
| Jurisdiction | UK Non-devolved |
| Date | 19 August 2021 |
| Published date | 03 September 2021 |
| Hearing Date | 22 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/02153/2019 & HU/02149/2019 |
Appeal Numbers: HU/02153/2019 (V)
HU/02149/2019 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/02153/2019 (V)
HU/02149/2019 (V)
THE IMMIGRATION ACTS
|
Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
|
Remotely by Microsoft Teams |
On 19 August 2021 |
|
On 22 July 2021 |
|
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
Tajin Binte Nurul
Md Sabir Hossin
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr E Fripp, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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The appellants, who are citizens of Bangladesh, are a married couple. The first appellant was born on 15 July 1982 and the second appellant, her husband, was born on 25 July 1988.
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The first appellant entered the United Kingdom on 12 February 2010 with a student visa valid until 31 December 2011. That leave was extended, initially to 29 April 2012 and then subsequently to 25 July 2015.
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On 7 October 2014, the first appellant applied for leave to remain as a Tier 4 Dependent Spouse of the second appellant. The application was refused on 26 August 2015 and a subsequent appeal was dismissed by the First-tier Tribunal on 16 May 2017 (Judge Talbot). The first appellant became appeal rights exhausted on 11 August 2017.
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The second appellant entered the United Kingdom on 5 October 2010 on a student visa valid until 30 June 2014. On 25 April 2012, his leave was curtailed to expire on 24 June 2012. On 6 August 2012, he applied for leave to remain as a Tier 4 Student which was granted on 3 October 2012 until 24 April 2014.
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On 27 February 2013, the second appellant applied for leave to remain as a Tier 4 Student which was granted on 19 April 2013 until 23 June 2015. He made a further application for leave to remain as a Tier 4 Student on 7 October 2014 but this was refused on 26 August 2015. His subsequent appeal was dismissed by the First-tier Tribunal on 16 May 2017 (Judge Talbot) and he became appeal rights exhausted on 11 August 2017.
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On 23 August 2017, the first and second appellants made applications for leave to remain based upon their private and family life under Art 8 of the ECHR.
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On 29 January 2019, the Secretary of State refused each of those applications. The Secretary of State concluded that the appellants could not succeed under the Immigration Rules (HC 395 as amended) based upon their family or private life under para 276ADE(1)(vi) and under Art 8 outside the Rules.
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In reaching her decision, the Secretary of State concluded that the second appellant had submitted a fraudulently obtained TOEIC English language certificate with his application for leave in 2012 as he had used a proxy test-taker for one part of the examination process, namely the speaking test. That was also the conclusion of Judge Talbot in the second appellant’s appeal in 2017.
The Appeal to the First-tier Tribunal
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The appellants appealed to the First-tier Tribunal. In a decision sent on 25 January 2021, Judge Shore dismissed each of the appellants’ appeals on all grounds.
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First, having considered the evidence, and having taken Judge Talbot’s previous appeal findings as a ‘starting point’, Judge Shore found that the second appellant had, indeed, submitted a fraudulently obtained TOEIC with his 2012 application for leave. The second appellant’s appeal, therefore, failed under the Rules because he could not satisfy the ‘suitability’ test under para S-LTR.4.2 of Appendix FM (read with para 276ADE(1)(i)).
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Second, Judge Shore found that neither appellant could succeed under para 276ADE(1)(vi) on the basis that it was not established that there were “very significant obstacles” to their integration on return to Bangladesh.
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Third, the judge found that neither appellant’s removal breached Art 8 as it had not been established that there would be “unjustifiably harsh consequences” such as to outweigh the public interest either in relation to the first appellant or the second appellant.
The Appeal to the Upper Tribunal
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The appellants sought permission to appeal to the Upper Tribunal. They did so on three grounds.
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First, in relation to the finding that the second appellant had submitted a fraudulently obtained TOEIC certificate, it was contended that the judge had wrongly excluded consideration of two documents relevant to the ETS and TOEIC language certificate issue: (1) the National Audit Office Report by the Comptroller and Auditor General on the TOEIC scandal, “Investigation into the response to cheating in English language tests” (24 May 2019) (the “NAO report”); and (2) the report of the All-Party Parliamentary Group on TOEIC (18 July 2019) (the “APPG report”). (Ground 1)
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Second, it was contended that the judge had erred in law in his approach to para 276ADE(1)(vi) and Art 8 outside the Rules by failing properly to have regard to the impact of the COVID-19 pandemic on the appellants’ circumstances in Bangladesh on return. (Ground 2)
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Third, again in relation to para 276ADE(1)(vi) and Art 8 outside the Rules, it was contended that the judge had failed properly to consider all the evidence when he found that the appellants would not be estranged from their families on return to Bangladesh. (Ground 3)
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On 12 February 2021, the First-tier Tribunal (Judge Andrew) granted the appellants permission to appeal. In doing so, Judge Andrew found that ground 3 was arguable but that grounds 1 and 2 were not. She, nevertheless, did not limit the grant of permission.
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The appellants renewed their applications for permission to the Upper Tribunal on grounds 1 and 2. However, on 7 May 2021 UTJ Jackson issued directions indicating that the effect of Judge Andrew’s permission decision was that permission to appeal had not been limited to ground 1 and was, following Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC), to be taken to be a grant of permission on all three grounds.
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However, in addition, in relation to ground 1, UTJ Jackson indicated that the appellants would need to address, in claiming that the NAO and APPG reports should have been considered by the judge, the parties views on the reasoning of the UT in DK and RK (Parliamentary privilege; evidence) [2021] UKUT 00061 (IAC) were invited.
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The appeal was listed for a remote hearing at the Cardiff Civil Justice Centre on 22 July 2021. I was based in court and Mr Fripp, who represented the appellants, and Mr Bates, who represented the Secretary of State, joined the hearing (as did the appellants) remotely by Microsoft Teams.
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Prior to the hearing, Mr Fripp filed a skeleton argument dealing specifically with ground 1 in accordance with the direction of UTJ Jackson. Mr Fripp relied upon that skeleton argument and the three grounds of appeal which he developed in his oral submissions. I also heard submissions from Mr Bates on behalf of the Secretary of State.
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I will take each of the grounds in turn.
Ground 1
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In his decision, Judge Shore, having heard evidence from the appellants, found that the second appellant had submitted a fraudulently obtained TOEIC English language certificate with his application for leave in 2012 and that, therefore, he could not meet the suitability requirement under the Rules. In reaching that finding, the judge took Judge Talbot’s earlier finding as a ‘starting point’ applying Devaseelan [2002] UKIAT 702 which he set out at para 40 of his decision. The judge made the following findings at para 50 of his decision:
“50. Applying the tests in Devaseelan, I make the following findings:
50.1 The first decision is always the starting point and in the second appellant’s case, he was found not to be credible on his claims of being innocent of cheating in his TOEIC test;
50.2 The only ‘facts’ since the events were put forward to be considered that related to his TOEIC test was the alleged change in the way the Tribunal should view this type of appeal;
50.3 The only fact before them put forward for consideration was the fact that he had chosen the test venue because it was close to his home;
50.4 I should treat with circumspection relevant facts that have not been brought to the First Appeal’s attention. The issue of his reasoning for choosing the test centre was not put to the First Appeal but would have been known to the second appellant at the time of the First Appeal;
50.5 The issues in evidence on the First and current appeals relating to the Appellants’ account are materially the same, so I should treat the issues as settled by the First Appeal rather than allowing the matter to be relitigated;
50.6 In the light of my findings about the law relating to TOEIC tests, I find that this is not one of the occasions where the circumstances surrounding the First Appeal were such that it would be right for me to look at the matter as if the first determination had never been made, and;
50.7 The findings of F-tTJ Talbot should be treated as settled and the determination that the second appellant had not met the standard of proof to switch the...
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