(Immigration and Asylum Chamber) Appeal Number: HU/12022/2018
THE IMMIGRATION ACTS
Heard at the Royal Courts of Justice
Decision & Reasons Promulgated
On 28 th October 2019
On 05 November 2019
UPPER TRIBUNAL JUDGE JACKSON
Md saiful islam
(ANONYMITY DIRECTION not made)
For the Appellant: Mr B Poddar, Solicitor from Hamlet Solicitors LLP
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Cohen promulgated on 17 April 2019, in which the Appellant's appeal against the decision to refuse his human rights application dated 15 May 2018 was dismissed.
2. The Appellant is a national of Bangladesh born on 8 February 1981, who originally entered the United Kingdom with leave to remain as a student in 2009, initially valid to 28 February 2013 and extended to 8 September 2015. The Appellant's leave to remain was curtailed on 1 October 2013 to expire on 30 November 2013, during which time he made a further application for leave to remain which was granted until 16 January 2017. The Appellant most recently made an application for leave to remain on the basis of his private life established in the United Kingdom.
3. The Respondent refused the Appellant's human rights application the basis that he did not meet the suitability grounds for a grant of leave to remain, specifically that he had relied on a fraudulent TOIEC English language test in 2013: and on the basis that the substantive requirements of paragraph 276ADE of the Immigration Rules were not met. This was because the Appellant had not been in the United Kingdom for long enough and there were no very significant obstacles to his reintegration in Bangladesh given he still speaks the language, has family there and has spent the majority of his life there. The Respondent did not find any exceptional circumstances to warrant a grant of leave to remain outside of the Immigration Rules.
4. Judge Cohen dismissed the appeal in a decision promulgated on 17 April 2019. There was a finding in the Appellant's favour in relation to the suitability criteria and the TOIEC allegation made against the Appellant, which was found not to have been established by the Respondent who relied on the wrong English language certificate number, the wrong date of birth and the wrong test centre such that the Judge was not satisfied that this Appellant had used deception as claimed. However, the appeal was dismissed on human rights grounds as in any event the Appellant did not meet the requirements of paragraph 276ADE of the Immigration Rules, it was not accepted that he had lost contact with his family in Bangladesh and he would be able to re-establish his private life there utilising the skills and qualifications he had obtained.
5. The Appellant appeals on four grounds. First, that the First-tier Tribunal materially erred in law in failing to follow the Court of Appeal's decision in Khan & Ors v Secretary of State for the Home Department  EWCA Civ 1684 by allowing the appeal following the positive finding which would have required the Respondent to have granted the Appellant 60 days leave to remain in order to regularise his immigration status. Secondly, that the First-tier Tribunal materially erred in law in failing to give adequate reasons for separating the decision under appeal into a suitability part and a distinct substantive part when the former is inexorably linked to the refusal as a whole. Thirdly, that the First-tier Tribunal materially erred in law by failing to have regard to the considerations set out in section 117B of the Nationality, Immigration and Asylum Act 2002, specifically that the Appellant could speak English, is financially independent and formed his private life at a time when he was in the United Kingdom unlawfully. Finally, that the First-tier Tribunal materially erred in law in attaching no weight to evidence based on a discrepancy, a conclusion which does not follow logically.
6. At the appeal hearing, Mr Poddar on behalf of the Appellant was unable to coherently expand upon the first ground of appeal or explain in what way the Court of Appeal's decision in Khan assisted the Appellant's case, or identified a material error of law in the decision of the First-tier Tribunal. Rather than making any reference to the specific facts or details of the consent agreements reached by the parties in Khan, Mr Poddar made repeated and un-evidenced factual assertions of what essentially amounted, at their highest, to substantive unfairness to the Appellant who is said to have suffered because of a false allegation made against him meaning that he was unable to finish his studies in the United Kingdom.
7. There was however no evidence before the First-tier Tribunal or before me in the Upper Tribunal that this Appellant had been unable to continue or complete any of his studies, to the contrary there was evidence that he completed his previous course in 2015. There is nothing to suggest any further studies were commenced, nor any application for further leave to remain as a student was made prior to or since the expiry of his leave to remain in January 2017. Nor was there any evidence of any difficulties encountered by the Appellant in obtaining a CAS because of TOIEC other issues as also claimed by Mr Poddar.
8. On behalf of the Respondent, Mr Kotas noted that there was a reference by the Appellant in the cover letter to his most recent application for leave to remain to being unable to complete his studies in the United Kingdom because of the previous revocation of his sponsors licence, although that appears to relate to the situation in 2013, following which the Appellant was granted further leave to remain as a student and did in fact complete his course in 2015.
9. In relation to the case of Khan, Mr Kotas noted that this argument was not raised before the First-tier Tribunal and in any event was of no assistance to the Appellant in this appeal as it is not authority for the proposition that an appellant who is successful having had a right of appeal, would be given any further period of leave to remain to regularise his or her immigration status. The appeals in Khan specifically related to the situation where a person had no remedy against a curtailment or section 10 decision and in which it was accepted fairness required a right of appeal should be given to enable a challenge to be made to an allegation of deception in English language test.
10. Neither party made any oral submissions on the second, third or fourth grounds of appeal.
Findings and reasons
11. The grounds of appeal advanced in this case are, on all grounds, wholly without merit and it is notable that the Appellant's solicitor, Mr Poddar was unable to advance any coherent argument in support of any of them at the oral hearing.
12. In relation to the first ground of appeal, the Appellant's reliance on the Court of Appeals decision in Khan is wholly misplaced. That decision concerned individuals who had pursued applications for Judicial Review against decisions by the Respondent to curtail their leave to remain, refuse further leave to remain and/or made section 10 removal decisions against them solely on the basis of an allegation of deception in a TOIEC English language test, against which there was no statutory right of appeal or suitable remedy including a fact-finding determination on the issue of deception. In such cases, agreement was reached between the parties and the Respondent accepted that it was appropriate for this issue of deception should be determined within the context of a statutory human rights appeal. The further consequences were set out in paragraph 43 of the decision, quoting paragraph 8 of the note from the Respondent which was as follows:
"Nonetheless, for the avoidance of doubt, the SSHD confirms that:
(v) For those individuals whose leave was curtailed, and where that leave would still have time to run as at the date of an FTT determination that there was no deception, subject to any further appeal to the UTA, the curtailment decision would be withdrawn and the effect... Would be that leave would continue and the individuals would not be disadvantaged in any future application they chose to make;
(vi) For those whose leave has been curtailed, and whether leave would in any event have expired without any further application being made, the Respondent will provide a further opportunity for the individuals to obtain leave with the safeguards in paragraph (iii) below.
(vii) For those whose leave had expired, and who have made an interim application for further leave to remain which was refused on ETS grounds, the effect of an FTT determination that there was no deception would be that the refusal would be withdrawn. The applicant in question was still have an outstanding application for leave to remain and the Respondent will provide them with a reasonable opportunity to make any further changes to the application which would be considered on the basis of the not having employed any deception in the obtaining of their TOIEC certificate, and they would in no way be disadvantaged in any future application they chose to make.
(viii) (iii) In all cases, the Respondent confirms that in making any future decision he will not hold any previous Leave caused by any erroneous decision in relation to ETS against the relevant applicant, and will have to take into account all the circumstances of each case.
(ix) However, the Respondent does not accept that it would be appropriate for the Court now to find him to the approach that he would take towards still further applications in the future, for example by stating that each applicant has already accrued a certain period of lawful leave. The potential factual permutations of the cases that may need to be considered are many and various. In some cases, for example, it will be apparent that, whilst on the facts as presented at the appeal and appellant's human rights claim is successful, he would not been able to obtain leave at the previous states. Again, this issue will have to be dealt with on a case-by-case basis."
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such it is not necessary to set aside the decision.
The decision to dismiss the appeal is therefore confirmed.
No anonymity direction is made.
Signed Date 31 st October 2019
Upper Tribunal Judge Jackson