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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-005143 |
|
First-tier Tribunal No: HU/01199/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 28 th of March 2025
Before
UPPER TRIBUNAL JUDGE LESLEY SMITH
DEPUTY UPPER TRIBUNAL JUDGE DEAKIN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and
MR FARHAD HOSSAIN RONY
(NO ANONYMITY ORDER MADE)
Respondent
Representation :
For the Respondent: Mr P Lewis (counsel) directly instructed by the Respondent
For the Respondent: Mr T Lindsay (Senior Home Office Presenting Officer)
Heard at Field House on 14 March 2025
DECISION AND REASONS
1. The Secretary of State appeals FTJ Cohen's decision of 27 September 2024 on the basis that the Judge failed to consider and take into account the case of Varkey & Joseph (ETS - Hidden Rooms) [2024] UKUT (IAC) when this case (i) had been reported some time prior to FTJ Cohen's signing of the decision and (ii) it was material to the issues FTJ Cohen had to decide.
MATERIAL BACKGROUND
2. Mr Rony is a citizen of Bangladesh. We will refer to him as " the Respondent" for the remainder of this judgment.
3. The Respondent entered the United Kingdom with leave to remain as a student on 3 March 2004 and remained in the United Kingdom, on the basis of further grants of leave to remain as a student, until 29 September 2012.
4. On 28 September 2012 the Respondent applied for further leave to remain as a Tier 4 General Student. This application was refused by decision of 5 February 2013. The Respondent's appeal against this refusal was dismissed 30 July 2013 and the Respondent became appeal rights exhausted on 30 October 2013.
5. On 12 December 2013 the Respondent again applied for leave to remain as a student. His application was refused. The Respondent then engaged in unsuccessful claims for judicial review for a number of years. His claim came before the Court of Appeal. On 8 January 2019, the Secretary of State conceded this appeal and agreed to reconsider the Respondent's claim.
6. The Secretary of State again refused the Respondent's application on 26 February 2019. The Respondent appealed against that decision on 8 March 2019, arguing in part that he had not, in fact, used deception in his ETS test taken at Queensway College on 18 August 2012. The Respondent's appeal was heard by FTJ Devittie, who dismissed the appeal on 5 July 2019. The Respondent became appeal rights exhausted on 14 February 2020.
7. On 13 March 2020 the Respondent made a further application on the basis of Article 8 ECHR private life. The refusal of this application is the subject of the present appeal. The Secretary of State was satisfied that the Respondent had used deception in the making of his 28 September 2012 application and that S-LTR 4.2 of Appendix FM to the Immigration Rules applied. The Secretary of State accordingly refused the Respondent's application by decision of 5 July 2022.
8. The Respondent appealed this decision to the First-tier Tribunal.
9. The Respondent's appeal was heard by FTJ Cohen on 4 March 2024. The Secretary of State was not represented. Having reminded himself of the case of Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00702, FTJ Cohen took as his starting point FTJ Devittie's finding that the Respondent had used deception in his 28 September 2012 application (para. 18). However, FTJ Cohen decided to depart from FTJ Devittie's findings on this point for the following reasons:
(i) The cases of DK and RK (ETS: SSHD evidence, proof) [2022] UKUT 112 and Akter [2022] EWCA Civ 74 post-dated FTJ Devittie's decision (para. 20);
(ii) The fact that the Respondent's IELTS and TOEIC score were "largely equivalent" with reference to the Common European Framework of Reference was not available to FTJ Devittie (para. 20);
(iii) FTJ Devittie had failed to consider the Respondent's academic achievements/ability to work in English to a high level (para. 21);
(iv) FTJ Cohen placed "significant weight" on the report of Mr Stanbury "and the criticisms that he levels against conclusions concerning widespread deception in test taking and the use of hidden rooms" (para. 22);
(v) FTJ Cohen also doubted the research relied on which had concluded that 97% of tests taken in the United Kingdom were invalid or questionable (para. 23).
10. FTJ Cohen found that the Respondent had "no motivation to use deception", that Queensway College had provided "detailed and credible evidence concerning the circumstances in which" the Respondent took his test, and that the Respondent had not used deception (para. 24). Against that background, FTJ Cohen went on to find that the Respondent satisfied the requirements for Article 8 ECHR leave under the Immigration Rules and so allowed his appeal on human rights grounds.
11. The case of Varkey & Joseph was heard by a Presidential Panel on 18-21 December 2023. The decision was promulgated on 11 March 2024. It was agreed by the parties that this decision was reported at some point prior to 19 May 2024. It was not available at the time of the hearing.
12. FTJ Cohen's decision was not signed and promulgated until 27 September 2024. The case of Varkey & Joseph was not drawn to his attention by either party subsequent to the hearing. FTJ Cohen makes no reference to that decision in his judgment and we proceed on the basis that he was not aware of it prior to promulgation of his decision.
13. The Secretary of State applied for permission to appeal FTJ Cohen's decision on 3 October 2024. FTJ Boyes granted permission to appeal on 22 October 2024.
THE SECRETARY OF STATE'S SUBMISSIONS
14. The Secretary of State brings this appeal on the sole ground that FTJ Cohen erred in failing to have regard to the case of Varkey & Joseph when making his decision.
15. Mr Lindsay for the Secretary of State submitted that Varkey & Joseph contained "important reported guidance" of relevance to matters in issue and which FTJ Cohen should have taken into account. Mr Lindsay submitted that FTJ Cohen was bound by statements of law made by the Upper Tribunal. He relied on Akter to support a submission that a decision of the Upper Tribunal need not be starred or designated as Country Guidance "to have force" with respect to its factual findings. He submitted that, in any event, like cases should be treated alike as a matter of fairness and, in failing to have regard to Varkey & Joseph, FTJ Cohen had violated this principle.
THE RESPONDENT'S SUBMISSIONS
16. In his detailed skeleton argument and oral submissions, the Mr Lewis for the Respondent resisted the Secretary of State's appeal.
17. Mr Lewis accepted that, in light of NA (Libya) [2017] EWCA Civ 143, where a Country Guidance case is reported after the hearing of an appeal but before promulgation of that appeal, a Judge will err if they fail to take that Country Guidance case into account. However, Mr Lewis submitted, as Varkey & Joseph was not a Country Guidance case, this principle did not apply.
18. Mr Lewis submitted that, while reported Upper Tribunal Decisions are binding on the First-tier on matters of law, they are not "factual precedents" and are "capable of constituting a Devaseelan starting point and nothing more" (see Mr Lewis' Skeleton at para. 9). Mr Lewis argued, in reliance on TR (CCOL cases) Pakistan [2011] UKUT 33 (IAC) at para. 17 that, in circumstances where FTJ Cohen was not bound by a decision of the Upper Tribunal, it was no error of law for the Judge to fail to have regard to that decision of which he was unaware. In support of this submission Mr Lewis also drew our attention to; AA (Somalia) [2007] EWCA Civ 1040; and Akter.
19. Mr Lewis made clear in oral argument that, even he was wrong in this analysis and FTJ Cohen's failure to have regard to Varkey & Joseph did constitute an error of law, such an error was not material as the Judge would have reached the same conclusion in any event.
ANALYSIS
20. The appeal comes before us to decide whether there is an error of law. If we determine that the Decision does contain an error of law, we then need to decide whether to set aside the Decision in consequence. If we set the Decision aside, we must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
21. Varkey & Joseph was determined by a Presidential Panel. It is a reported case. It is not, however, a starred appeal or designated Country Guidance. Nevertheless, judges of the First-tier Tribunal are expected to follow the law as set out in reported cases, unless persuaded that the decision failed to take into account an applicable legislative provision or a binding decision of a superior court (see Presidential Guidance Note 2 of 2011). As to factual findings made in Varkey & Joseph, while these are not binding on judges of the First-tier Tribunal, it does not follow that such findings can simply be ignored - we refer to the headnote in TR:
"Just because findings of fact made by the Tribunal in a reported case are not binding does not mean that immigration judges are free to take account or not to take account of such findings at will: (a) the determination may contain an account of the record of evidence; (b) the Tribunal may have made findings of fact and if these relate to the same factual matrix then they should be followed unless there is a good reason to revisit them: see A (Somalia) [2007] EWCA Civ 1040."
22. It follows, in our view, that had FTJ Cohen had been aware of Varkey & Joseph prior to his signing his judgment in the present appeal, then his failure to have regard to relevant statements of the law and/or factual findings as a Devalseelan starting point as set out in that decision would have constituted an error of law. We do not understand this to be in dispute.
23. FTJ Cohen was, however not aware of the decision in Varkey & Joseph prior to his signing and promulgating his judgment. The question for us on this appeal, therefore, is whether FTJ Cohen erred in failing to have regard to Varkey & Joseph in circumstances where (i) the reporting of that decision post-dated the Respondent's appeal but pre-dated signing and/or promulgation of the decision and (ii) the decision in Varkey & Joseph was neither known by nor drawn to the attention of the Judge.
24. Mr Lewis argued that, in those circumstances, the Judge's failure to have regard to Varkey & Joseph did not constitute an error of law.
25. In support of this submission, Mr Lewis properly referred us to NA (Libya) v Secretary of State for the Home Department [2017] EWCA Civ 143, a case in which Flaux LJ, with whom McFarlane and McCombe LLJ agreed, held that it was an error of law for a First-tier Judge to fail to apply relevant Country Guidance promulgated after the hearing but before promulgation of the First-tier's decision. Mr Lewis submitted that NA (Libya) could be distinguished on the basis that it was concerned with Country Guidance cases only.
26. We do not agree that NA (Libya) can properly be distinguished on this basis. While it is correct that NA (Libya) was concerned with a Judge's failure to have regard to a Country Guidance case, the Court of Appeal was silent as to whether the principle expressed in NA (Libya) could be extended to other types of case. Indeed, we take the view that logic of NA (Libya) supports its extension by analogy to reported decisions addressing the "same factual matrix". The Court of Appeal in NA (Libya) explained that (i) while Country Guidance cases "do not amount to binding precedent, [they] are authoritative in any subsequent appeal so far as that appeal relates to the Country Guidance issue in question and depends upon the same or similar evidence" (para. 24) (ii) a failure to follow or show why applicable Country Guidance should not apply on the facts is likely to constitute an error of law (paras. 24-25) and (iii) in the "interests of fairness and consistency, like cases should be treated in a like manner and, accordingly, applicable Country Guidance cases should be followed" (para. 34). In our view this same reasoning can properly be extended to relevant reported decisions.
27. Mr Lewis placed particular reliance on para. 17 TR (CCOL cases) Pakistan which, in his submission, established that a First-tier Judge's failure to have regard to non-starred/non-Country Guidance case could not amount to an error of law. Again, we do not agree.
28. At para. 17 of TR (CCOL cases) Pakistan the Upper Tribunal held as follows:
That way of formulating matters may help clarify why we think the IJ could not be said to have erred in law in failing to have regard to NA and Others. When he signed the determination on 12 August NA and Others had still not been reported. NA and Others was not a country guidance case or one that was declaratory as a matter of law (we note this is a point that was made by the Rt Hon. Sir Richard Buxton when granting permission to appeal in the case of CW (Sri Lanka) Ref: C5/2010/1225) on 22 December 2010). Nor was it a starred case. Hence it was not a decision that the IJ was legally bound to follow and apply (even if unaware that it had in fact been reported shortly before his decision had been notified). Even had it been a starred case, it would only have been legally binding as to the law, not as to facts.
29. We make the following observations about this passage:
a. The Upper Tribunal's observations at para. 17 are expressly obiter (see para. 16 of the judgment) and, in our view carry less weight on that basis.
b. We accept that para. 17 does suggest that a First-tier Judge will not err in law should they fail to take account of a non-starred/non-Country Guidance case as the First-tier Judge would not be "legally bound to follow and apply" such a case. The Upper Tribunal does not, however, fully set out its reasoning on this point. In our view, that a First-tier Judge is required to "follow findings of fact made by the Tribunal in a reported case dealing with the same factual matrix unless there is good reason to revisit the earlier decision" (para. 22) is also relevant here. This is not expressly addressed by the Panel at para. 17 and this undermines the weight we can place on this passage.
c. Further, and crucially, the Panel's conclusions at para. 17 proceed on the premise that, when the First-tier Judge "signed the determination on 12 August NA and Others had still not been reported". In other words, the judge in TR (CCOL cases) Pakistan could not have been expected to know of or have regard to NA and Others. That is not the case in the present appeal. Varkey & Joseph was reported some 4 months prior to signing promulgation of FTJ Cohen's judgment. We consider that the Panel's observations at para. 17 can and should be distinguished on this basis.
Where does that leave us? In our judgement, to the extent that FTJ Cohen's decision was inconsistent with propositions of law or more importantly findings of fact as set out in Varkey & Joseph then he will have erred in law, regardless of whether he was aware of Varkey & Joseph . As to matters of fact: we accept that a First-tier Judge is required to determine an appeal on the basis of the admissible facts before them. However, the recitation of evidence and findings of fact in Varkey & Joseph do not fall to be treated in this way. Varkey & Joseph was a reported decision of a Presidential Panel. It was a well-known test-case addressing issues of central importance to the Respondent's appeal. It was reported some 4 months before FTJ Cohen signed his judgment and that judgment was promulgated. In our judgement FTJ Cohen could and should have been aware of Varkey & Joseph and he was required to take as his starting point the relevant factual findings in that case. Importantly in our view, the Panel in Varkey & Joseph heard oral evidence from Mr Stanbury on whose report the Respondent relied in this appeal. What is said by the Panel in Varkey & Joseph about that evidence is therefore akin to the treatment of expert evidence in a country guidance case and therefore relevant to the Judge's fact finding.
30. It follows, in our judgment, that FTJ Cohen's failure to have regard to Varkey & Joseph constituted an error of law.
31. It is, however, necessary for us to go on to consider whether any such error was material.
32. We do not accept Mr Lindsay's submissions that FTJ Cohen materially erred in failing to have regard to propositions of law/mixed fact and law as set out in Varkey & Joseph. It is not clear to us on which propositions of law Mr Lindsay relies nor that FTJ Cohen's decision is, in fact, inconsistent with the law as set out in Varkey & Joseph.
33. However, as above, in relation to the factual matrix, we find that FTJ Cohen's failure to have regard to Varkey & Joseph plainly was material. At para. 22 of his judgment, FTJ Cohen states that he placed "significant weight" on the report of Mr Stanbury and that this provided the basis for his departure from the conclusions of DK & RK. These conclusions are not consistent with the Panel's consideration of the Stanbury Report at paras. 92-108 of Varkey & Joseph. We note too FTJ Cohen's treating the Respondent's having taken his test at "Queensway College" (the test centre closest to where he lived) as weighing in his favour and contrast this with the findings at para. 107 of Varkey & Joseph that there was evidence that Queensway College was operating as a "fraud factory". While these findings in Varkey & Joseph were not binding on FTJ Cohen, we do consider that, had he taken them into account, he may have reached a different conclusion as to whether the Respondent had acted dishonestly. In our judgement, that is sufficient to demonstrate materiality.
DISPOSAL
34. For the reasons set out above we consider that, in failing to take Varkey & Joseph into account when coming to his decision, FTJ Cohen materially erred in law. His decision falls to be set aside. Given the extent of fact finding required, we consider that this matter should be remitted to the First-tier Tribunal for reconsideration. Neither Mr Lewis nor Mr Linsday objected to this proposed approach.
Notice of Decision
The decision of the First-tier Tribunal is set aside for error of law.
We direct that the appeal be remitted to the First-tier Tribunal for redetermination by a different judge.
ANDREW DEAKIN
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
26 March 2025