Upper Tribunal (Immigration and asylum chamber), 2018-07-10, IA/40662/2014
| Jurisdiction | UK Non-devolved |
| Date | 10 July 2018 |
| Published date | 24 July 2018 |
| Hearing Date | 30 May 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/40662/2014 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/40662/2014
THE IMMIGRATION ACTS
|
Heard at Bradford |
Decision & Reasons promulgated |
|
on 30 May 2018 |
On 10 July 2018 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
WAQAS HABIB
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Haq Solicitor with Harris & Green Solicitors
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer
DECISON AND REASONS
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On 27 June 2014 the respondent made a decision refusing an application for leave to remain on the grounds that removal would not place the United Kingdom in breach of its obligations under the Human Rights Act 1988, and to give directions under section 10 of the Immigration and Asylum Act 1999 for the appellant’s removal from the United Kingdom.
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The appellant appealed to the First-tier Tribunal. That appeal was heard by First-tier Tribunal Judge Ince sitting at Bradford on 31 December 2014 who, in a decision promulgated on 24 February 2015, allowed the appellant’s appeal on the basis it was found the respondent had not discharged the burden of proof upon her to establish that a proxy test taker attended on the appellant’s behalf on 25 July 2012 when it is said the appellant took an English language test; later said to be invalid as a result of enquiries undertaken by ETS.
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Permission to appeal was granted to the respondent on 17 April 2015 on the grounds it was said it was arguable the First-tier Tribunal Judge erred in allowing the appeal as he imposed too high a standard in relation to the voice recording analysis when the evidence produced showed the appellants English language test was considered by ETS to be invalid which meant a proxy was involved.
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Deputy Upper Tribunal Judge Kelly, in a decision promulgated on 7 September 2015, dismissed the respondents appeal finding no arguable legal error material to the decision to allow the appeal had been made out.
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Permission to appeal to the Court of Appeal was refused on 21 January 2016. The respondent renewed the application to the Court of Appeal who on 17 March 2018 sealed an order noting that, by consent, the respondents appeal was allowed, the decision of Deputy Upper Tribunal Judge Kelly set aside and replaced by finding that an error of law was made by the First-tier Tribunal in the treatment of the appellants (Secretary of States) evidence and the appeal was to be reheard by the Upper Tribunal. The agreed Statement of Reasons attached to the consent order is in the following terms:
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The relevant history of the proceedings is as follows. The Appellant made a decision to cancel the Respondents leave. The Respondent appealed to the First-tier Tribunal, who allowed the appeal. The Respondent appealed to the Upper Tribunal; where Deputy Upper Tribunal Judge Kelly refused to find an error of law. The Appellant sought leave to appeal to the Court of Appeal (“CA”) against the decision of the Upper Tribunal (“UT”). Permission to appeal was refused in a letter sent by the UT on 21 August 2016. An Appellant’s Notice (“AN”) was filed in time with the Court of Appeal.
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The legal landscape has moved on significantly since permission to appeal was refused. The principal basis for pursuing second appeals, including this case, to the Court of Appeal was the repeated and erroneous treatment by the First-tier Tribunal and Upper Tribunal of the Appellants evidence, comprising to witness statements and a ‘lookup tool’ database spreadsheet, which was relied on to refuse or curtail leave to remain under the Immigration Rules in a number of cases. The issue has now been clarified by the Court of Appeal in both Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615 and Secretary of State for the Home Department v Majumder and Qadir [2016] EWCA Civ 1167. In both cases, it was specifically confirmed that the initial evidential burden was discharged through the production of this evidence.
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The order is justified in this manner because that evidence was present before the First-tier and Upper Tribunal, and the Tribunal failed to weigh that evidence adequately. This had a material effect on the outcome.
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The draft order reflects agreement between the parties that the Upper Tribunal erred, and error of law should be found, and the Upper Tribunal should re-decide the appeal.
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The reference to appellant and respondent set out in the Reasons is the capacity in which the parties appeared before the Court of Appeal. Hereinafter the reference to appellant and respondent shall be as the parties appear in the header to this decision.
Background
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The appellant, a citizen of Pakistan born on 18 December 1989, does not challenge his immigration history set out at [5] of the decision under challenge in the following terms:
5. Your immigration history can be summarised as follows:
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06 June 2011 EC Visa until 02 August 2012
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21 June 2011 you entered the United Kingdom as a Tier 4 (General) Student
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8 May 2012 leave was curtailed with LTR until 7 July 2012
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2 August Application for Tier 4 General Student made
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24th October granted further LTR as a Tier 4 Student until 19 November 2014
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17 March 2013 leave curtailed with LTR until 20 May 2013
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17 May 2013 Application for a Tier 4 General Student made
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11 July 2013 Further LTR as a Tier 4 General Student until 30 October 2015
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3 March 2014 leave curtailed with LTR until 2 May 2014
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10 December 2013 married [AM] British citizen
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1 May 2014 application made for a spouse a settled person FLR(M).
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In assessing the Suitability requirements of the Immigration Rules, the respondent wrote at [9 & 10] of the refusal letter:
9. Educational Testing Services (ETS) is obliged to report test scores that accurately reflect the performance of test takers. For that reason, ETS routinely reviews testing irregularities and questions test results believed to be earned under abnormal or non-standard circumstances. ETS’s Score Cancellation Policy states that ETS reserves the right to cancel scores and/or take other action(s) deemed appropriate where ETS determines your test centre was not following established guidance set forth by the TOEIC Program. During an administrative review process, ETS have confirmed that your test score obtained was through deception. Because the validity of your test results could not be authenticated, your scores from the tests taken on 25 July 2012 have been cancelled. You are specifically considered a person who has sought leave to remain in the United Kingdom by deception following information provided to us by Educational Testing Services (ETS), that an anomaly with your speaking test indicated the presence of a proxy test taker.
10. Therefore, it is considered that you do not meet the Suitability requirements of S-LTR.2.2(a) for consideration of limited leave to remain in the United Kingdom as a partner under E-LTRP and parent under E-LTRPT and on the grounds of private life under Paragraph 276 ADE.
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The decision-maker states at [16] that if the appellant met the suitability requirements the Eligibility requirements will be met as his spouse, Aneesha Mobeen, is a British citizen and evidence has been provided showing that the relationship is subsisting. According the decision-maker considered EX.1 of Appendix FM but concludes at [21]:
21. EX.1.(b) it is considered that they no evidence has been provided of any insurmountable obstacles to your family life continuing back in Pakistan although Aneesha Mobeen is a British citizen photographs of your wedding show your spouse wearing traditional costume confirming that she embraces the social and cultural aspects of Pakistan. Additionally, on the FLR (M) application form dated 29 April 2014, page 19 question 6.31 confirms that she speaks English and Punjabi. Therefore, because evidence suggests your spouse does embrace the culture and speaks Punjabi it is considered that it would not be unjustifiably harsh for your spouse to reside in Pakistan.
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Outside the Immigration Rules the decision maker noted the appellant has family members living in Pakistan with no evidence to suggest that they would not adequately support and assist him and his spouse on return. The decision-maker concludes that there were no exceptional circumstances in the case sufficient to warrant a grant of leave outside the Immigration Rules pursuant to article 8 ECHR.
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The appellant seeks to rely to witness statements the first dated 22 December 2014 and a more recent statement dated 17 May 2018 which stood as the appellants evidence in chief as did that of the appellant’s wife who also filed statements and who attended to give oral evidence. The parties were tended for cross examination and re-examination.
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It was accepted during the course of preliminary discussions with the appellant’s advocate that...
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