Upper Tribunal (Immigration and asylum chamber), 2023-10-23, UI-2023-003322
| Appeal Number | UI-2023-003322 |
| Hearing Date | 03 October 2023 |
| Date | 23 October 2023 |
| Published date | 07 November 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-003322 (HU/53383/2022)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-003322 |
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First-tier Tribunal No: HU/53383/2022
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
23rd October 2023
Before
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MOHAMMED MATAB UDDIN
(ANONYMITY ORDER NOT MADE)
Respondent
Representation:
For the Appellant: Mr. N. Wain, Senior Home Office Presenting Officer
For the Respondent: Mr. S. Karim, Counsel instructed by Liberty Legal Solicitors LLP
Heard at Field House on 3 October 2023
DECISION AND REASONS
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This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Atreya (the “Judge”), dated 15 March 2023, in which she allowed Mr. Uddin’s appeal against the Secretary of State’s decision to refuse leave to remain on human rights grounds. Mr. Uddin is a national of Bangladesh who applied for leave to remain on the basis of his private life.
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For the purposes of this decision I refer to the Secretary of State as the Respondent and to Mr. Uddin as the Appellant, reflecting their positions as they were before the First-tier Tribunal.
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Permission to appeal was granted by First-tier Tribunal Judge Oxlade in a decision dated 2 August 2023 as follows:
“The grounds disclose arguable material errors of law for the following reasons: the Judge
(i) failed to engage with evidence filed by the Respondent which addressed the reasons for the Appellant’s leave as a student being curtailed, which was not due to the ETS proxy problems, but the student’s own failure to attend;
(ii) conflated asserted historic injustice as reasons to find that there would be very significant obstacles, without assessing the likely circumstances of return to Bangladesh, which is the appropriate focus in R 276ADE(1)(vi) of the Rules;
(iii) failed to consider Article 8 ECHR in the alternative by reference to s117B, and to consider the immigration history, the weight to be given to the public interest in the maintenance of effective immigration control, and that little weight should be given to a private life established when in the UK without leave.
3. There are arguable errors of law and so permission to appeal is granted.”
The hearing
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The Appellant attended the hearing. I heard oral submissions from Mr. Wain and Mr. Karim, following which I stated that found the decision involved the making of a material error of law. I set the decision aside. I then heard oral evidence from the Appellant, and further submissions from both representatives before reserving my decision on the remaking of the appeal.
Error of law
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I note at the outset that it does not appear that the Judge proofread her decision, and that while this does not always make a material difference, in this case I find that it lends weight to the submissions that the Judge did not give proper consideration to the appeal before her. For example, there are unfinished sentences at [7] and [13] which read as follows:
“The respondent’s case is that the appellant”
“Counsel for the appellant made detailed submissions and adopted h”
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At [12] she appears to have quoted some of the Appellant’s evidence but the sentence does not make sense:
“The appellant has been here since 2009 and has been held back in his education and I wont have a good life there. I want to establish my life in the UK.”
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Paragraphs [13] to [17] similarly do not have complete sentences:
“The appellant is credible and the ETS saga and whilst no deception allegations. The appellant took an ETS test and was subsequently victimised because he couldn’t obtain any further sponsorship because of the ETS saga. Newsnight (p 158)
On page 174 ministerial statement of Sajid Javid may have been caught up who did not cheat but was caught up. Nature of ETS scandal that employers did not want to touch him
ETS saga has had a wide ranging effect from 181 many sponsors lost their licence – left the appellant in a bit of quandry
Page 23 /para 8 he could not extend his leave when queensbury college lost his licence he couldn’t get a sixty day extension”
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Mr. Karim in his submissions stated that paragraphs [14] to [16] set out the basis of the Appellant’s case. However, the Judge did not set out the Respondent’s case at all.
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The grounds assert that the Judge failed to engage with the Respondent’s decision and the evidence put forward by the Respondent. The grounds state:
“The FTTJ has failed to engage with the reasons for refusal, review, CID screen shots and evidence that leave was not granted due to the appellant being tarnished with the ETS brush but due to non-compliance, failure to attend classes, the college had its licence revoked, the appellant’s failure to contact the Home Office and ensure he had lawful leave.”
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I have set out above that the Judge left the sentence unfinished when setting out the Respondent’s case. I find that this is indicative of the fact that she did not properly consider the basis of the Respondent’s case as set out in both the decision and the Review. In her findings the Judge has focused solely on the alleged historical injustice suffered by the Appellant because he was caught up in the ETS episode. She is aware that there was no allegation of deception against the Appellant, but she finds at [20] that the Appellant “has been derailed in his educational plan because he has been caught up as a victim in the ETS saga”. She makes no reference to the issues outlined by the Respondent in her decision.
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At [22] to [24] the Judge sets out her reasons for this:
“I accept his account that because he used an ETS certificate sponsors were not willing to sponsor him and tarred him with the same brush as others. I accept there has been no deception on his part and the evidence from the BBC is that innocent people have suffered prejudice as a result of their ETS test and the ministerial statement at [ag4e (sic) 145 states that “some people who did not cheat may have got caught up”
I accept the appellant falls into this category because he did not have any ETS allegation made against him by the respondent but by the very nature of the ETS saga sponsors did not offer him sponsorship when they found out he had used an ETS certificate in the context of many colleges and sponsors losing their licences at the time. Put in another way the appellant was not touched with a barge pole because of his ETS certificate and the ETS saga at the time.
I accept that the respondent’s own policy accepted that individuals such as the appellant was caught up in the system as confirmed in a ministerial statement and beyond that the respondent agreed to give an opportunity to these people. This has not been disputed by the respondent at any stage of the appeal.”
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In her decision the Respondent stated that the Appellant’s leave “was curtailed on 28 March 2014 because you failed to report to Docklands College in that semester and your sponsor subsequently withdrew sponsorship from you, not because you had submitted a ETS TOEIC certificate”. The Respondent went on to state:
“You then subsequently gained CAS from Queensbury College for new Sponsorship which was valid from 19th June 2014 to 23rd February 2016. Once this leave expired you consciously decided to overstay in the UK.
The Home Office does not accept this overstaying had any connection to ETS TOEIC certificate as you subsequently gained sponsorship with a college up to 2016, post-curtailment. Your previous T4 General student leave that was curtailed had no link to ETS TOEIC, it was due to non-compliance of the Visa you were issued.”
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The Judge has made no reference to this in her decision. She has made no findings as to the reasons for the curtailment of the Appellant’s visa, but has assumed that all of his alleged problems in obtaining further leave were caused by the fact that he had an ETS certificate. The Respondent had submitted evidence from her CID system which showed that the reason for the curtailment of the Appellant’s visa was because he had not attended his course. The Judge failed to consider this evidence when finding that he was a victim of the ETS saga by virtue of having an ETS certificate.
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The Appellant subsequently obtained another student visa, as set out above. In his witness statement he states that he “could not extend my leave to remain thereafter as the Respondent revoked the sponsorship licence of Queensbury College in June 2014 [same month I was granted leave to remain].”
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Again the Judge has made no findings on this issue. While it was the Respondent who removed the licence from the college, had the Appellant attended his first course and his visa not been curtailed, he would not have been in this position. However the Judge does not consider this but assumes that all of the problems the Appellant claims to have encountered were due to having an ETS certificate.
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I find that the Judge has failed to engage with the Respondent’s decision and the evidence provided. I find that this is a material error of law.
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