(Immigration and Asylum Chamber) Appeal Number: HU/01857/2018
THE IMMIGRATION ACTS
Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On February 5, 2019
On 25 February 2019
DEPUTY UPPER TRIBUNAL JUDGE ALIS
THE Secretary of State FOR THE Home Department
Mr GIBIN GEORGE
For the Appellant: Mr A McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr Sobowale, Counsel instructed by Christon Francis
DECISION AND REASONS
1. Although this is an appeal brought by the Secretary of State for the Home Department I shall hereafter refer to the parties as they were referred to in the First-tier Tribunal. Accordingly, the Secretary of State for the Home Department will hereafter be referred to as the respondent, albeit he is of course the appellant in the proceedings currently before me.
2. On February 28, 2015 the appellant was granted leave to enter as a spouse and that leave was valid until November 23, 2017. He lodged an application on October 25, 2017 to extend that leave but this was refused by the respondent on December 14, 2017.
3. The appellant lodged grounds of appeal on January 3, 2018 and his appeal came before Judge of the First-tier Tribunal Cox on April 12, 2018 and in a decision promulgated on April 26, 2018 the Judge allowed the appeal.
4. The respondent appealed that decision on May 1, 2018 and permission was initially refused. The grounds of appeal were renewed to the Upper Tribunal and on November 29, 2018 Deputy Upper Tribunal Judge Jordan found there was an arguable error in law identifying a number of issues as raised in the grounds. In particular, the Deputy Upper Tribunal Judge noted that the Judge had effectively imposed an obligation on the respondent to provide a document that was not in their possession and it was arguable that the findings in paragraphs 44 and 45 were flawed.
5. Mr McVeety adopted the grounds of appeal and submitted that the Judge had failed to apply the guidance set out in SM and Qadir v SSHD (ETS - evidence - burden of proof)  UKUT 229. He submitted that evidence that had been adduced to satisfy the burden placed on the respondent in SM and Qadir. He went on to argue that the Judge had failed to note that the appellant must demonstrate an innocent explanation which the respondent must rebut on the balance of probabilities. He argued that the Judge did not address who had to prove what. Significantly, he argued that the Judge required the respondent to provide a certificate (see paragraph 43) where in fact this was not something that was in the possession of the respondent or would be with the authorities who conducted the test in the first place. The Judge made a reference at the end of paragraph 43 that the failure to provide the certificate was a "serious omission". Mr McVeety further submitted that the finding at the end of paragraph 40 that the respondent had not provided any evidence to suggest anyone from the college had been arrested, charged or convicted was incorrect as there was no requirement to do so. The significance of these failures was that when the Judge ultimately had to carry out his Article 8 assessment the Judge was approaching the Article 8 assessment on the basis that there were no other factors outweighing a grant to the appellant. He accepted that if the decision was set aside the outcome was not necessarily a rejection for the appellant but submitted that it should be a fair playing field.
6. Mr Sobowale responded to those grounds and referred to the fact that the ETS SELT source data document did not contain the appellant's passport number and this was something the Judge was obliged to take into account when considering the overall reliability of the respondent's evidence. There had been an issue raised in evidence as to when the appellant had taken the test, with the appellant stating he had taken it on June 12, 2012 (because he needed the certificate to make the application) and the respondent relying on the documentation which suggested the test was taken on June 27, 2012. He suggested that the issue of the test certificate was relevant to the extent that it may have cleared up the issue but it was not material. The Judge looked at the evidence and concluded, as he was entitled to, that the evidence did not satisfy the burden placed upon the respondent. He disagreed with Mr McVeety's submission that the Judge had not applied the principles of SM and Qadir.
7. In conclusion, he submitted that the proportionality assessment that was subsequently carried out from paragraph 51 of the decision was fair and open to the Judge.
8. No anonymity direction is made.
9. This was an application to extend leave on the basis of the appellant's marriage. The appellant had originally been given leave to enter the UK as a spouse and this was his application to extend that leave. Since arriving in the United Kingdom, the respondent has alleged that the English language test, previously taken and relied on, was fraudulently taken and that led to the decision to refuse his appeal. As was pointed out by the appellant's representative ultimately the issue was whether it would be disproportionate to require the appellant to leave the United Kingdom, bearing in mind he has two British children.
10. The issue relating to that assessment must include an assessment in relation to the ETS issue because otherwise the Article 8 assessment will be flawed. There is a difference to assessing an Article 8 assessment where there is nothing adverse to outweigh the appellant's relationship with his wife and two children to a situation where there is something adverse in his history. I find that the Judge was required to deal with the ETS matter and make findings which would then form part of that assessment.
11. I have therefore considered the grounds of appeal that have been advanced and make the following findings.
12. The Judge at paragraph 36 of his decision acknowledged the principles that had to be applied. Looking at paragraph 47 I am satisfied that the Judge assessed whether the respondent satisfied the initial burden. The real issue in my view was whether the Judge correctly followed the procedure in SM and Qadir.
13. There are a number of observations made by the Judge which factually are either incorrect or irrelevant.
14. The first issue arose in paragraph 40 of the decision. The report produced relating to the college spoke as to what percentage of test results were invalid over a particular period. The Judge commented that there was a staggering number of proxy test takers identified in 159 of 166 speaking and writing sessions. The Judge however went on to say or imply that the respondent should have provided some evidence to suggest that someone had been arrested, charged or convicted. That is not a requirement of the assessment to be carried out under SM and Qadir.
15. The second issue related to the absence of the passport number. I accept this is a valid point advanced in this case but that ultimately would form part of the assessment which the Judge would have to undertake when deciding whether the respondent had discharged the evidential burden. The requirement at paragraph 43 in relation to the test certificate is something that must have been on the Judge's mind because not only does he comment that the respondent has not provided a copy of the test certificate (this is incorrect as there is no obligation to provide such a test certificate by the respondent), but he then went on to say that the absence of that certificate was a serious omission. The argument advanced today that the Judge placed no real weight on that test certificate is not sustainable.
16. Thirdly, the Judge also made an observation that he found it surprising that the appellant had been granted entry clearance if a fraudulent test had been utilised. There was no basis for this.
17. Ultimately, the Judge had to decide whether the respondent had discharged the evidential burden of proving that the certificate had been procured by dishonesty. I am satisfied that in making that assessment the Judge has allowed the matters referred to above to affect the assessment. In such circumstances, his conclusion that the respondent had not discharged that burden is flawed.
18. As the finding on the ETS issue is flawed I find that the article 8 assessment is also flawed. I therefore find there has been an error in law.
19. I have considered whether to retain jurisdiction in this matter or to remit the matter back to the First-tier Tribunal. Bearing in mind there are flawed findings, I find that this matter will need to be remitted back to the First-tier Tribunal and I do so under Section 12(1) of the Tribunals, Courts and Enforcement Act 2007.
NOTICE OF DECISION
20. I allow the appeal and set aside the decision and remit the matter back to the First-tier Tribunal under Section 12(1) of the Tribunals, Courts and Enforcement Act 2007.
Signed Date 21 February 2019
Deputy Upper Tribunal Judge Alis