Scottish Court of Session Decisions

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  McKendrick;   Office of the Advocate General

3 July 2014

Introduction

[1]        This petition called before me for a first hearing on 11 June 2014 so that the petitioner could advance substantive argument as to whether the questions raised in the petition were such that this court was entitled to review the decision of the Upper Tribunal to refuse permission to appeal in the light of the test set out in Eba v Advocate General 2012 SC (UKSC) 1 (Eba)

Background

[2]        The first petitioner (the mother) is a national of India and is the mother of the second petitioner (the son) who was born in India on 2 February 1994.  They seek a judicial review of a decision of the Upper Tribunal of the Immigration and Asylum Chamber dated 12 December 2012 refusing permission to appeal a determination of the First-tier Tribunal promulgated on 31 October 2012. 

[3]        The petitioners had applied for leave to enter the United Kingdom from India as the spouse/child of JS who is resident and settled in the United Kingdom.  That application was refused on 16 February 2012 on the basis that the entry clearance officer (ECO) was not satisfied that the mother was married to JS, that they intended to live permanently as spouses or that the marriage was a subsisting one.  Nor was the ECO satisfied that the mother had sufficient knowledge of the English language or that she and her husband would be able to maintain themselves and any dependents without recourse to public funds.  So far as the son was concerned, the ECO was not satisfied that he would accompany his mother as a person given limited leave to enter the UK or that he was a child of a person settled and present there.  The petitioners appealed to the FTT against that decision. 

[4]        The First-tier- Tribunal judge heard evidence from the husband and submissions from his representative and from the Home Office Presenting Officer.  She correctly identified that, in terms of section 85(5) and 85A(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), she required to restrict herself to those facts and circumstances appertaining at the time of the decisions appealed against.  Accordingly, she could not take account of any change of circumstances which had occurred between the decisions dated 16 February 2012 and 26 October 2012, which was the date of the hearing.

[5]        At paragraphs 14 to 18 of the immigration judge’s determination, she sets out the details of the subsistence of the marriage between the mother and her husband.  She found that they entered into a valid marriage on 26 March 1986.  The husband then came to the United Kingdom alone on 29 March 1990.  He left two children with the mother who were born during the period that they lived together between March 1986 and March 1990.  He then kept in touch with the mother and their children by phone and by letter.  The mother came on a visit to the United Kingdom to see her husband in 1993.  She remained in the United Kingdom from 30 April to 18 October 1993.  It was during this period that the son was conceived.  He was then born in India on 2 February 1994.

[6]        The husband was granted indefinite leave to remain in the United Kingdom on 16 December 2009.  Between October 1993 and December 2009 he maintained contact by telephone and correspondence.  He sent the mother money.  He made two visits to see his family in India between 9 September 2011 and 7 October 2011 and again from 26 January 2012 to 17 February 2012.  The immigration judge accepted that they had been in regular contact between 1993 and 2009.  However, the husband had been in a relationship with a female British citizen between 2006 and 2010.  It was recognised by the immigration judge that the husband could have made an application for the petitioners to join him after his immigration status was settled in 2009.  However, she concluded that that did not detract from the fact that the marriage was a subsisting one and that they had every intention of living permanently together.

[7]        In those circumstances, the immigration judge found, contrary to the decision of the ECO appealed against, that the mother and her husband did have a genuine and subsisting relationship.  That disposed of one of two issues that remained outstanding for her to consider as far as the mother was concerned. 

[8]        The other matter related to the English language requirement.  In order to be eligible for leave to enter, the mother had to satisfy the requirements of immigration rule 281 as the spouse of a person present and settled in the United Kingdom.  This meant that the mother required to show that she was married to a person present and settled in the United Kingdom and in terms of immigration rule 281:

“(ii) the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference)”.

There is apparent confusion in the immigration judge’s determination about the precise provisions of immigration rule 281 which applied to the mother.  At page 3, paragraph 12 a different part of rule 281 is referred to as “rule 281 (i)(b) and (ii)” to the effect that:

“the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application”.

[9]        That requirement seems to be inapplicable to the mother in her circumstances since it also requires both the applicant and her spouse to have been living outside the UK  (see paragraph (vi (2) (b) (i)).   But in dealing with this matter, the immigration judge appears to address herself to the requirement of providing an English language test certificate which appears to me to have been the correct provision which the mother required to fulfil.  It was clear that, at the time of her application to the ECO, she had no such English language test certificate.  Indeed, it was stated in the grounds of appeal to the First-tier Tribunal that “the sponsor (which was a typographical error for the first petitioner) is illiterate and does not have any education.  She has neither been in an English environment and is unable to learn”. 

[10]      That, therefore, was the position in February 2012 when she made her application.  However, as is recorded by the immigration judge at paragraphs 20 and 21, the mother produced to the Home Office presenting officer on the day of the hearing before the immigration judge, two City and Guilds Certificates at level A1 for both speaking and listening.  It was accepted that those certificates would have met the requirements of rule 281 applicable to her.  However, because she had not provided those certificates at the time of the original application to the ECO in February 2012, the fact that she had subsequently obtained such certificates some time shortly before the hearing before the immigration judge could not be taken into account by the immigration judge as a result of the operation of sections 85 and 85A of the 2002 Act.  For that reason, the immigration judge determined that her appeal under the immigration rules failed and she dismissed her appeal.  As a necessary consequence she also refused that of the second petitioner, the son.  She then considered the position under Article 8 and concluded that their rights had not been breached. 

[11]      In the petition, the petitioners seek reduction of the Upper Tribunal decision refusing permission to appeal and a declarator of incompatibility under section 4(2) of the Human Rights Act in respect of section 85(5) and 85A(2) of the 2002 Act.  It is contended that two important points of principle or practice arise in this case.  The first (“the first question”) is whether, in an entry clearance case which is appealed to the First-tier Tribunal, the immigration judge should be precluded from taking into account a change of circumstances since the decision of the ECO in accordance with the above sections of the 2002 Act and if so whether a declaration of incompatibility should be made in respect of those sections.

[12]      The second (the second question) related to immigration rule 281.  As stated, the immigration judge refused the appeal because the mother could not meet the requirement in rule 281 to provide, at the time of her application for entry clearance, an English language test certificate from an approved provider.  That certificate had only been provided shortly before the hearing before the immigration judge in October 2012. 

[13]      At the time of the application for entry clearance in February 2012, immigration rule 281 simply provided that the applicant should produce a certificate from an English language test provider approved by the Secretary of State.  There was no list of such approved providers incorporated into the immigration rules.  As the result of the decision of the Supreme Court in R (on the application of Alvi) v SSHD 2012 UKSC 33 (Alvi), in which judgment was given on 18 July 2012, the Secretary of State became obliged to prepare a list of such providers, append that to the Immigration Rules (as appendix O) as amendments to the Immigration Rules and to lay them before Parliament for its approval.  That was done on 20 July 2012.  Since no such list was included in the rules at the time of the ECO’s decision, Mr Caskie argued that rule 281 was of no force and effect in so far as it imposed a requirement to provide a certificate.  The immigration judge should have ignored that requirement as illegal and granted the application.  This was said to raise an important point of principle or practice.

[14]      On 14 March 2014 this petition called before Lord Glennie at a procedural first hearing.  Lord Glennie discharged that hearing, allowed adjustment to the pleadings of both parties and granted a first hearing for 11 June 2014.  In the minute of proceedings it was recorded

“A first hearing was allowed as it was seen as a more appropriate forum for the argument sought to be made by the petitioners.  The respondent agreed to this course of action but made no concessions in relation to any Eba points”. 

Submissions of the petitioners on the first question.       

[15]      It was argued by Mr Caskie that the terms of section 85(5) and 85A(2) of the 2002 Act were incompatible with the European Convention of Human Rights and I should make a declaration of incompatibility under section 4(2) of the Human Rights Act 1998.  That was because in the circumstances of this case, the immigration judge, when dealing with the appeal of refusal of entry clearance, was precluded by those sections from having regard to the fact that the mother had obtained an English language certificate after the date of the decision of the ECO.  Were it not for the operation of those sections of the 2002 Act, the immigration judge would have been able to have regard to that and to have granted the appeal since she had found that the mother and her husband had a genuine and subsisting relationship.  The certificates that the mother had recently obtained would have meant that she met the requirements of immigration rule 281.  It was not disputed that the certificates that she had obtained would have met the necessary requirements in the rule. 

[16]      The basis of the submission was what Lord Hope of Craighead had said in the case of AS (Somalia) and another v SSHD 2009 UKHL 32 (AS) and, in particular, paragraph 21 thereof.  The Supreme Court found that the language of section 85 was incapable of being read down.  The language was “unequivocal and unyielding” and even if, as Lord Hope was willing to assume, there might be cases where a decision to refuse to consider the up-to-date position could lead to an interference with Article 8 rights in a way that was not proportionate, an adjudicator required to abide by the terms of the statute and it would be unlawful for him not to do so.  At paragraph 20 his Lordship stated that, as a generality, the rule may be said to be directed to a legitimate purpose and did not seem to his Lordship to be disproportionate.  That purpose was set out by Lord Phillips of Worth Matravers at paragraph 9.  The distinction made between decisions on entry clearance and decisions on leave to enter was legitimate because, where a change of circumstances was alleged by somebody who was outside the jurisdiction, the ECO will be best placed to evaluate the effect of that change.  In those circumstances it would not be illogical to require a fresh application for entry clearance to be made.  Lord Hope at paragraph 21 then expresses what was accepted to be an obiter view and says this:

“I cannot leave this case however without expressing concern at the effect that the delay and expense that the rule may give rise to, when compared with the ease of bringing into account up to date information, may have on individual cases….But there may be other cases, where very young children or vulnerable adults are involved, for example, in which respect for family life cries out for urgent attention.  The delay resulting from the need to start the procedure again, and to find the money to do so, may be so plainly out of keeping with the needs of the case that the application of the rule in their case may be found to be disproportionate.  Situations of that kind can only be dealt with on a case by case basis.  The effect of the legislation is that domestic law is incapable, even in those cases, of providing a remedy.  But the Secretary of State should bear in mind that they may be vulnerable to an adverse decision in Strasbourg, and I would not rule out the possibility of a declaration of incompatibility in an individual case if the circumstances were so clearly focused as to enable the precise nature of the incompatibility with the applicant’s article 8 right to be identified.”

Lord Hoffman, and Lord Brown of Eaton-under-Heywood both expressly agreed with the opinion of Lord Hope of Craighead. 

[17]      Mr Caskie argued that the family circumstances of the petitioners here demanded that such a declaration should be made in order to comply with their Article 8 rights.  The circumstances of the petitioners as mother and son were inextricably bound up together.  The mother had been placed in an intolerable dilemma by the decision of the Secretary of State:  either to leave her son in India in order to live with her husband in the United Kingdom or remain with her son in India and not live with her husband.  The son was faced with the situation that his mother might leave him alone in India in order to live with his father.  Now that he was 18, any fresh application for entry into the United Kingdom would be bound to fail in view of the current requirements contained in section E-ECDR of appendix FM of the Immigration Rules.  Mr Caskie submitted that for all practical purposes, the son would not be granted leave to enter the United Kingdom.  This was the sort of case which Lord Hope had in mind in AS which justified a declaration of incompatibility.  The First-tier Tribunal judge had found that the mother and her husband had a genuine and subsisting relationship.  The second petitioner was their son.  Their Article 8 rights required that they should be allowed to live together in the United Kingdom.  The interference in the right to respect for family life imposed by the current decision was more than trivial.  I should conduct a form of Article 8 assessment here and find that it was wholly disproportionate to uphold the decision to refuse entry clearance having regard to the public interest which could be said to exist in this case.  It could not be said that the maintenance of the rule laid down by the contested sections of the 2002 Act were for the economic benefit of the United Kingdom.  The family unit here was accepted to have ample funds to maintain itself.  The maintenance of a well-ordered immigration system was not sufficient in these particular circumstances to justify the interference in family life.  Mr Caskie went so far as to submit that I should view the son as a 17 year old because he would be regarded as such for the purposes of any continued appeal against the decision of the First-tier Tribunal because of the term of immigration rule 27.  He was a young man who should have the benefit of the society and guidance of his mother.

Submissions for the Respondent on the first question.

[18]      Mr McKendrick drew my attention to the evidence of the family life of the petitioners as found by the First-tier Tribunal judge.  These are set out above.  The family life as found was very limited.  The mother and her husband had lived together for a very short period of time.  There had been a number of short visits by them to India or the UK.  It was accepted that they had three children but that was a result of those short visits.  It was wholly unclear why the petitioners did not make an application to come to the United Kingdom upon the husband being granted indefinite leave to remain in February of 2009.  No explanation had been given for the delay between then and now for making such an application if the demands of family life were so compelling.

[19]      In any event, even if I was to make a declaration of incompatibility as requested by the petitioners in this case, that would not have any retrospective effect and, were the matter to be referred back to the Upper Tribunal, the law would remain as it is now (Wilson v First County Trust Limited (No.2) 2004 1 AC 816 at paragraph 127).  The Supreme Court in AS had found that the provisions of sections 85 and 85A had a rational basis and were compatible with Convention rights. 

[20]      In any event, in any proportionality exercise it would be necessary for me to have regard to the significant increase in work to the Home Office and to the tribunal structure caused by such a change in the law as advocated by the petitioner.  It would undermine the operation of an effective and strong immigration system and place an unnecessary additional burden upon resources.

[21]      Further, it was wholly unclear that I had the necessary information in order to make an informed proportionality assessment under Article 8.  The circumstances of the second petitioner, the son, who was now 19 years of age, were unknown.  It was not known whether he had a job or whether he was in any way dependent upon his mother and, if so, why that was the case.  He might be able to enter the United Kingdom by means other than as an adult dependent relative as Mr Caskie had suggested.  For example, he might be able to come to the United Kingdom as a student, as his elder sister has done.  Lord Hope and Baroness Hale in AS make reference to the effect of delay and expense occasioned in the case with which they were dealing.  No such considerations were prayed-in-aid here.  I was invited to refuse to exercise a discretion to make a declaration of incompatibility.

[22]      In any event, the Upper Tribunal’s decision was correct to refuse permission to appeal and no important point of principal or practice or compelling reason was advanced in this case justified the remedy of judicial review.           

Discussion and Decision on the first question.

[23]      The particular circumstances founded on by Mr Caskie, as requiring the court to make such a declaration were that the son, who was to be viewed by me in these proceedings as a child of 17, would be subjected to a breach of his Article 8 rights if entry clearance was refused.  The mother’s Article 8 rights would also be substantially interfered with in view of the situation that she was placed in as a result of the decision.  I have to bear in mind that the Supreme Court found that the terms of section 85 and 85A were “unequivocal and unyielding” and could not be read down.  The sections were found to be directed to a legitimate purpose and were not seen by Lord Hope to be disproportionate (see paragraph 20).  He did go on, however, to express concern at the effect that “the delay and expense that rule may give rise to” when compared with the ease of bringing into account up to date information in individual cases.  It is clear that his concern was for the delay and expense which this provision might give rise to.  Such concerns were not, as Mr McKendrick pointed out, prayed-in-aid here.  I would have to be satisfied that the requirement to ignore the up to date position of the mother in respect of her English language qualifications would inevitably lead to an interference with the Article 8 rights of the petitioners in a way that it is disproportionate. 

[24]      The sort of circumstances which Lord Hope envisaged would lead to a disproportionate interference with family life were illustrated where very young children or vulnerable adults were involved in which respect for their private family life “cried out for urgent attention”.  It is worth noting that it is not every interference with family life that will be disproportionate.  Regard has to be had to the individual circumstances of the petitioners in any particular case and the consequences that a declaration of incompatibility on the efficient running of the immigration system would have.  Mr McKendrick submitted that the circumstances in this case relating to the family situation of the petitioners were far removed from those envisaged by Lord Hope.  This was not a case of a very young child, who by reason of age was heavily dependent upon his mother.  He was not said to be vulnerable in any respect.  I was asked to have regard to the actual age of the second petitioner, that is 19.  Mr Caskie did not argue that he was in any way unusually or exceptionally dependent upon his mother or in any way physically or mentally vulnerable.  I do not consider that there was anything in the family life of the petitioners that “cried out for urgent attention” which would justify a declaration of incompatibility.  The circumstances of the petitioners fall far short of the sort of circumstances envisaged by Lord Hope.  Nor do I find that their circumstances are so clearly focused as to enable the precise nature of the incompatibility with their Article 8 rights to be identified.  The language used by Lord Hope in paragraph 21 clearly indicates that it is the current circumstances prevailing at the time that the court is asked to consider the questions which are pertinent.  I do not know what the circumstances of the second petitioner now are or whether he would be able to come to the United Kingdom on grounds other than those identified by Mr Caskie as an adult dependent relative.  The petitioner identifies no respect in which he is unusually dependent upon his mother and/or his father.  He may be eligible to come to the United Kingdom as a student as, apparently, his elder sister has done.  There is no information about the ability of the mother and her husband to visit their son in India, if the mother were to choose to go to the United Kingdom.  Even if the decision to refuse entry clearance in respect of the son remained in force but the mother was able to obtain such leave to enter the United Kingdom, that would not necessarily mean the end of family life.  There is no reason to suppose that family life of some sort could not continue.  Either the parents could visit the son in India or he could visit his parents in the United Kingdom.  I am not able to speculate, as Mr Caskie urged me to do, on the attitude that might be taken by the authorities to such an application in the light of the second petitioner’s immigration history. 

[25]      The fact is that I was not given any information on which I could conclude that there is anything in the family circumstances of the petitioners which “cries out for urgent attention” beyond the fact that this young man of 19 years of age would be separated from his mother and father (who he had only met when aged 17 according to paragraph 25 of the immigration judge’s determination) if the mother were to leave India.  As Mr McKendrick pointed out, there had been no attempt to obtain leave to enter the United Kingdom after the husband obtained indefinite leave to enter in February 2009.  No explanation for the delay in attempting to come to this country until 2012 was offered to me.  Whether the mother is prepared to leave India without her son is a matter for her but it remains the fact that no circumstances were advanced which would explain why she could not do so, beyond an unwillingness to leave her 19 year old son behind in India.  That does not, in my view, raise an issue of the magnitude envisaged by Lord Hope. 

[26]      On the other side of the balance, the respondents maintain that the amendment to the 2002 Act demanded by Mr Caskie would throw a significant extra burden upon the immigration system.  Immigration judges would require to conduct appeals in relation to entry clearance cases on the basis of any relevant change of circumstances between the date of the decision of the ECO and the tribunal hearing.  The Secretary of State would have to be informed of and investigate the truth of any alleged change of circumstances.  All this would significantly increase the workload of the Home Office officials and the tribunal system, would undermine the effective and strong immigration system and place a significant extra burden on limited available resources.  I consider those matters to be of considerable substance.

[27]      Further, there is a powerful rationale behind the distinction that section 85 and 85A draws between decisions of ECOs and decisions on leave to enter as set out by Lord Phillips of Worth Matravers at paragraph 9 of AS.  Those are material practical considerations.

[28]      Having regard to these factors I have come to the view that, while inevitably a decision adverse to the petitioners would result in a degree of interference with their family life, I cannot conclude that the interference would be so disproportionate as to amount to a breach of Article 8 rights justifying this court in issuing a declaration of incompatibility in respect of the disputed sections of the 2002 Act.

Submissions for the Petitioners on the second question.   

[29]      Mr Caskie advanced argument to the effect that, because at the time of the ECO’s decision no list of providers had been appended to the rules approved by Parliament, entry clearance should have been allowed in respect of the first petitioner.  In that case such clearance would also have been allowed for the son since he was 17 at the date of the application. 

[30]      Mr Caskie referred me to paragraphs 39 to 42 of the judgment of Lord Hope of Craighead in Alvi.  The purpose of having a list of approved providers which Parliament had had the opportunity to approve was that it prevented the Secretary of State changing the rules, such as who was or was not an approved English language certificate provider, at her “whim”.  The list had to be “fixed” so that applicants were aware of the requirements of the rules which had been subjected to Parliamentary scrutiny.  The list of approved providers was properly to be viewed as part of the rules and not simply the policy of the Secretary of State or an instruction by her.  Nor was it to be viewed as some form of document which merely gave guidance to case workers as was referred to in paragraph 41 of Lord Hope’s opinion.  This was a substantive matter which required to be incorporated in the rules and subjected to Parliamentary scrutiny.

[31]      I was also referred to Regina (New London College Limited) v SSHD 2013 1 WLR 2358.  While in that case the Supreme Court found that the criteria which educational establishments had to satisfy in order to qualify for a sponsor licence were not required to be incorporated within the rules, that was because that particular matter, which was in effect guidance, did not directly impact on whether or not an applicant’s application to enter or remain in the United Kingdom was granted.  The present case was in the same category as that of in Alvi for the reasons set out in paragraph 57 thereof.  There, Lord Hope stated:

“I agree with Lord Dyson (see paragraph 94, below) that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2) of the Immigration Act 1971).  A provision which is of that character is a rule within the ordinary meaning of that word.  So a fair reading of section 3(2) requires that it be laid before Parliament.”

[32]      This matter amounted to a compelling reason justifying this court reviewing the decision of the Upper Tribunal judge who refused permission to appeal.  The first paragraph of the reasons of the Upper Tribunal state that the mother could not meet the requirement of the immigration rules relating to English language and that it was only until 6 months after the date of the decision that she was able to produce relevant certificates.  Section 85(5) of the 2002 Act shut out such post decision evidence in relation to article 8.  However, it was submitted that this was an error of the law which had truly drastic consequences upon both petitioners since it would inevitably mean the permanent break up of this family.

The Respondent’s submissions on the second question.

[33]      Mr McKendrick referred me to paragraphs 19 to 23 of the First-tier Tribunal judge’s determination where it is clear that the mother, at the time of the application for entry clearance, was illiterate and did not have any education.  She had never been in an English environment and was unable to learn (see paragraph 20).  It is also pointed out in paragraph 22 that at the date of the decision the mother did not have “the appropriate English language certificates and nor had it been brought to the attention of the decision maker in any shape or form that such certificates would be provided”.  She had not even started learning English either at the date of her application or by the date of decision.  For that reason her appeal was dismissed by the First-tier Tribunal.

[34]      In the light of that factual background, it was argued that the refusal by the ECO and the First-tier Tribunal was based upon the fact that the mother had no certificate of speaking and listening in English from any provider.  At the time of her application she claimed to be exempt from the English language requirement because she was applying as a spouse of a refugee (see paragraph 19 of the First-tier Tribunal’s decision).  At the stage of submitting grounds of appeal against the decision of the ECO she stated “the sponsor (a typographical error for a reference to the mother) is illiterate and does not have any education.  She has neither been in an English environment and is unable to learn”.  Accordingly, she was in the position of being unable to satisfy any English language requirement in the rules.  It was not the lack of a certificate that led to the refusal of entry clearance in this case.  Accordingly, there was nothing which offended against the principle in Alvi contained in rule 281 which was the basis of that refusal. 

[35]      No error of law therefore arose from the decision of the ECO or the First-tier Tribunal and it could not be said that the point raised any important point of principle or practice or any compelling reason such as to pass the test in Eba.  It was also argued in the answers that, since this matter had not been raised before the First-tier Tribunal or in the grounds of appeal to the Upper Tribunal, it could not now be raised in the context of this petition.  Since the matter was not raised, it could not be said that the Upper Tribunal erred in any way in not addressing the matter.  In the petition it is averred at paragraph 25 “the issue although complex should have been an obvious point of law to this expert tribunal”.

Discussion and Decision on the second question.

[36]      I am not able to conclude that this is an obvious point of law in the sense used by the Court of Appeal in Regina v SSHD ex parte Robinson 1998 QB 929 at 946 and as commented upon in R v Immigration Appeal Tribunal ex parte Shen 2000 EWHC Admin 452.  This is not a point which was readily discernable or obvious or which, in my view, has strong prospects of success.  The Upper Tribunal was not therefore under any obligation to consider it.  Further, I am persuaded by Mr McKendrick’s argument that that part of rule 281 requiring approved providers did not lead to the mother’s application being refused in this case.  The absence of a certificate, of whatever calibre, did not determine the grant or refusal of this application.  What determined it was the accepted and unchallenged fact that the mother was illiterate and had not even started learning English at the date of her application for entry clearance or by the date of the decision of the ECO.  This situation is similar to that in Regina (New London College Limited) v SSHD and not that in Alvi.

[37]      Accordingly, she was never in a position to obtain any form of certificate of competence in speaking or listening English.  It therefore cannot be said that the Upper Tribunal judge erred in the first paragraph of the reasons for refusal of permission to appeal in finding that “manifestly the first appellant could not meet the requirement of the immigration rules relating to the English language”.  The fact that she may have obtained a relevant certificate by the time of the appeal to the First-tier Tribunal was, indeed, “shut out” by the operation of section 85(5) of the 2002 Act in any article 8 assessment of the situation of the petitioner.

[38]      I therefore conclude that this question does not raise a matter of important principle or practice and does not meet the test set out in Eba. 

[39]      In the circumstances I shall sustain the first, third, fourth and fifth pleas-in-law for the respondent, repel the pleas-in-law for the petitioners and dismiss the petition.