(Immigration and Asylum Chamber) Appeal Number: HU/20534/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing
On 1 August 2019
On 3 July 2019
UPPER TRIBUNAL JUDGE CRAIG
(ANONYMITY DIRECTION NOT MADE)
For the Appellant: Ms E Harris, Counsel instructed by ATM Law Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant is a national of India who appealed against the decision of the respondent to refuse her leave to remain in the UK. Her application had been made outside the Rules and had been refused on 2 October 2018. The basis of the refusal was that she had exercised deception when previously taking an English language test in 2013. It was asserted by the respondent that her TOEIC certificate from ETS had been obtained fraudulently through the use of a proxy. The appellant's appeal against this decision was dismissed by First-tier Tribunal J P Groom in a Decision and Reasons promulgated after a hearing at Nottingham Justice Centre on 27 March 2019. The appellant now appeals to the Upper Tribunal with leave having been granted by First-tier Tribunal Judge Gibb on 4 June 2019.
2. The appellant and her husband have two children. Those children have been registered as English nationals. The appellant's husband's application for leave to remain outside the Rules which had been made on or about the same time as that of this appellant was allowed because he had British children. It is only this appellant's application which was refused and the sole basis of refusal was that the application failed on grounds of suitability because of what was said to have been a fraud in obtaining her TOEIC certificate from ETS. Curiously, and it ought to be surprisingly, in the decision letter the respondent stated as follows:
"You have told us that your child is a British national and lives in the UK with you and your spouse.
You have told us that you have a British child, we do not expect the British child to leave the UK as the child can live in the UK with your partner, the child's father. However as you have taken part in fraudulent activity with Educational Testing Service (ETS) your conduct is not conducive to the public good."
3. What is surprising about this bald statement of the respondent's reason for refusing the application is that having accepted that the respondent has a British child (in fact she has two) the respondent has not given any consideration at all to what is contained within Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 which provides as follows:
" 117B. Article 8: Public interest considerations applicable in all cases ...
(6) In the case of a person who is not liable to deportation, the public interest does not require a person's removal where -
(a) a person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
4. Within Section 117D, a "qualifying child" is defined as meaning:
"A person who is under the age of 18 and who -
(a) is a British citizen ...".
5. Accordingly the public interest does not in this case, according to Statute, require the appellant's removal because she does (as is seemingly accepted in the refusal letter) have a genuine and subsisting parental relationship with a qualifying child.
6. No other reason was given within the refusal letter for the refusal of the application.
7. There is no reference within Judge Groom's Decision to Section 117B(6) either. Furthermore, it appears (and this is accepted on behalf of the respondent today by Ms Cunha) that there was a further error and/or procedural irregularity in these proceedings because at the hearing, during cross-examination, the Home Office representative then submitted that there was a further reason why permission should be refused. At this hearing the only evidence which had been produced on behalf of the respondent justifying the assertion that the appellant had exercised fraud in obtaining her English language certificate was generic evidence such as has been produced in a multitude of cases. It was accepted that the appellant had put forward an explanation (that she had not used fraud and had taken the test herself) which was sufficient at least to rebut the presumption without more. Accordingly, on settled authority the position was that it was necessary for the respondent to establish on the balance of probabilities that fraud had indeed been used notwithstanding the explanation given by the appellant.
8. At the hearing before the First-tier Tribunal, the respondent's representative raised another issue, which was it was said that the appellant had obtained the registration of her children as English nationals by using deception. At the hearing today Ms Cunha stated as follows:
"[What I am about to say] is based upon what the respondent's Presenting Officer [at the First-tier hearing] has stated in her minutes. Based on what was said, the evidence that the parties went to the Indian High Commission and requested from them a letter stating that their children were stateless came out during cross-examination. So it was inferred that the appellant [and her husband] by doing so, had acted dishonestly because as Indian nationals their children would have been entitled to obtain Indian citizenship. What the HOPO submitted was that in fact, because the parents were from Indian nationality, the children were also automatically Indian nationals and that this act was done in order to deceive the respondent in thinking that the children were stateless and into forcing the respondent into granting as a result of the children's statelessness, British citizenship.
The HOPO's representations, from reading the notes, and from an inference drawn from paragraphs 15 to 17 of First-tier Tribunal Judge Groom's decision, were designed to infer that by acting in this way, in other words dishonestly, the appellant [and her partner] had a propensity to act dishonestly more generally, which was sufficient to prove that one of the appellants would have employed dishonesty in obtaining a fraudulent TOEIC test in order to obtain leave previously.
The judge in regarding this submission as valid (see paragraph 17 of the decision) erred because she did not consider that Indian nationals do not automatically transfer their nationality to their offspring. This is supported by paragraphs 36 and 37 of MK (a child by her litigation friend CAE)  EWHC 1365 (a decision of the Vice-President of this Tribunal, CMG Ockelton, sitting as a Deputy High Court Judge).
It therefore appears that the conclusion that the judge drew was in error because in fact if what the appellant was saying at the hearing is true, then they had not registered their two daughters with the Indian High Commission in the UK [on a false basis] because they were stateless.
Given that the judge does not refer to SM Qadir  EWCA Civ 1167, at paragraph 17 in this context (although she had referred to it earlier) she erred because written evidence provided by the respondent merely discharged the evidential burden but did not establish the respondent's case. Given that the only conclusion that would have established the respondent's case was the assertion of the propensity to be dishonest, it therefore seems that paragraph 17 of the decision was flawed and therefore not well considered in that there is no sustainable finding that the appellant was in fact dishonest. For these reasons we accept that this decision is flawed and will have to be remade."
9. It was the respondent's submission that it would be appropriate for the appeal to be reheard either in the Upper Tribunal or by a fresh hearing in the First-tier Tribunal in order that the appellant could have an opportunity of providing evidence in court in relation to dishonesty in general and enabling the respondent to have the opportunity to test this evidence.
10. On behalf of the appellant, Ms Harris submitted that the respondent had already had this opportunity. She asked the Tribunal to note that the only basis upon which the judge had found that the appellant had exercised dishonesty on obtaining the ETS certificate was her propensity to be dishonest as shown by her being dishonest in obtaining the registration of her children as English citizens and as this finding could no longer be sustained that there was no longer any basis upon which a finding of dishonesty and therefore unsuitability could be maintained. She in particular asked the court to note that there had been no cross-appeal by the respondent and furthermore the respondent had not even put in a Rule 24 statement setting out his position (if it was his position) that there were other reasons which could have been given for justifying a finding of dishonesty.
11. Very fairly, Ms Cunha accepted that in the absence of a cross-appeal or even a Rule 24 statement on behalf of the respondent it would be difficult to argue that a finding of dishonesty against this appellant could be sustained.
12. In my judgment, there is no answer to Ms Harris's submission that there is now no basis upon which a finding of dishonesty can be maintained. As she says, the only reason given by the judge to support such a finding was an erroneous conclusion that the appellant and her husband had exercised dishonesty when claiming that their children were stateless. On this point, it is worth setting out what was said by Judge Ockelton, in MK at paragraph 36, as follows:
"36. The conclusions from what is set out above are as follows. For the purposes of the statutory provisions in issue, a person is stateless if he has no nationality. Ability to acquire a nationality was irrelevant for these purposes. A child born on or after 3 December 2004, outside India, of parents at least one of whom is an Indian national, and who has not been to India, is not an Indian national unless registration of the birth has taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended. If the child has no other nationality, the child is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and, if the other requirements of that paragraph are met, is entitled to be registered as a British citizen. If, therefore, C's birth [in that particular case] had on the date of the decision under challenge not been registered, she is entitled to British citizenship."
13. This Tribunal has had regard to the relevant parts of the British Nationality Act 1981 which is paragraph 3 of Schedule 2 of that Act which provides as follows:
"3-(1) A person born in the United Kingdom ... shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely -
(a) that he is and always has been stateless; and
(b) that on the date of the application he ... was under the age of 22; and
(c) that he was in the United Kingdom ... at the beginning of the period of five years ending with that date and that (subject to paragraph (6)) the number of days on which he was absent from both the United Kingdom and the British Overseas Territories in that period does not exceed 450.
(2) A person entitled to registration under this paragraph -
(a) shall be registered under it as a British citizen if, in the period of five years mentioned in sub-paragraph (1), the number of days wholly or in partly spent by him in the United Kingdom exceeds the number of days wholly or partly spent by him in the British Oversees Territories
(6) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of paragraphs 3 or 4 treat the person as the subject of the application as fulfilling the requirement certified in some paragraph (1)(c) of that paragraph although the number of days on which he was absent from both the United Kingdom and the British Overseas Territories in the period there mentioned exceeds the number there mentioned)."
14. It is accepted, as already noted above, on behalf of the respondent by Ms Cunha that in the circumstances of this case because no application had been made in accordance with Indian law for the registration of the children as Indian nationals, those children were in fact stateless and were accordingly entitled to British nationality as claimed.
15. It follows that the judge's finding that the appellant, and her partner, must have exercised deception when seeking the registration of their children as British nationals cannot stand.
16. There are two things that follow from this finding. The first is that, as Ms Harris submits, there is no other basis upon which the finding of dishonesty in the taking of the English language test can be maintained. In response to the generic evidence the appellant had put forward her explanation. Absent the finding of dishonesty in obtaining registrations as English nationals of her children, which justifies the finding of the propensity to dishonesty, there is no other basis for a finding that the respondent has satisfied the requirement overall of countering the appellant's response to the generic evidence. It follows that that finding of dishonesty cannot be sustained.
17. The second consequence is that it follows that it could only be said to be in the public interest to remove this appellant (having regard to Section 117B(6)) if it could be said to be reasonable to expect the two British children to leave the UK. Whatever might ultimately be found to be the correct interpretation of the guidance given recently by the Supreme Court in KO, it is not suggested that it would be reasonable in the circumstances of this particular case to expect two British children one of whose parents have a legal right to remain in the United Kingdom to leave this country. Indeed, in the refusal letter itself, this is not suggested.
18. Considering all the factors in this case, and that the appellant's husband was granted permission to remain on the basis that he had British children in this country, it cannot in the judgment of this Tribunal on the facts of this case be reasonable to expect the children to leave the UK and nor would it be proportionate to expect this appellant to leave either.
19. It follows this appeal must be allowed and I so find.
Notice of Decision
I set aside the decision of First-tier Tribunal Judge Groom and substitute the following decision:
The appellant's appeal is allowed, under Article 8, outside the Rules.
No anonymity direction is made.
Upper Tribunal Judge Craig Date: 25 July 2019
TO THE RESPONDENT
As I have allowed the appeal and because a fee has been paid or is payable, I have decided to make a fee award of any fee which has been paid or may be payable.
Upper Tribunal Judge Craig Date: 25 July 2019