Visa refused because English Cert. not from recognised body

I don't want to divulge personal info here as we have a tribunal looming - however I think I can give you the general info on our case, and I'd like to know what people think of it - I know it's down to the judge to decide at the tribunal, but I'd like some people's opinions.

My partner and our children were refused an extension of their settlement visas because my partner submitted an English certificate from a provider that the Home Office no longer recognised. This was the same English certificate that we sent with the original settlement visa 3 years ago, and it was approved by the Home Office at the time of the original application. My partner scored higher than the A1 requirement and so in good faith we sent the same certificate (that the Home Office approved with the original settlement visa) for the settlement visa extension. I admit that's a mistake, but it's an honest one, and we did everything in good faith.

They wrote back to us and said we had not sent an English Language test Certificate, even though we clearly had (we went through the entire checklist to ensure we sent everything). We were confused. We HAD sent an English certificate. Since my partner passed the Knowledge of Life test (my partner originally wanted to go for ILR, but a late rule changed forced us to go for settlement visa extension), we sent the KOL certificate (even though KOL isn't a requirement for a visa extension) - thinking perhaps they wanted more evidence of my partner's English ability.

They wrote back to us a few weeks after we sent the KOL certificate saying the extension was refused because we supplied an English certificate from a provider that wasn't recognised. By the way, the English test she took was a genuine test, and was actually approved by the Home Office with the original application.

Of course, we appealed, and my partner took a brand new ESOL English test just 2 weeks after we got the refusal letter to show as evidence at the tribunal. My partner scored a B1 - 2 grades higher than the required A1 - and yes, from an approved Home Office provider. Our legal advisors have said this can be used as evidence at the tribunal. My partner actually has the English language certificates (KOL, B1) to pass ILR, let alone a settlement visa extension.

We've lived in the UK as a family for 2.5 years - we have an established life here, and have been together for nearly a decade. My partner runs a business in the UK that involves talking to English native business owners all day. I have a business of more than ten years in the UK. Moving to my partner's home country will mean we will all have no work and we will start from scratch, all because of the English language certificate problem. The HO dismissed all Article 8 Human Rights considerations which I found absolutely astonishing.

My key question: surely the tribunal is a place of discretion and judgement - therefore, shouldn't the judge see that my partner's English ability is beyond any kind of dispute (B1, KOL) and therefore SHOULD ("in the balance of probabilities") give us a favourable decision?

Yes, it could be argued that we should have checked that the English certificate we submitted originally was CURRENTLY approved by the Home Office - our mistake - but an honest one. Is there a case that we should be "punished" by deportation? The Home Office should have used some discretion and let us know that they didn't recognise the certificate when they first wrote to us (rather than point-blank say we hadn't sent one which was not true!), and afford us 2 or 3 weeks to take the English test (which we did anyway, and my partner scored B1). Passing KOL - in my opinion - is far far tougher than passing A1 at ESOL - so surely the HO should have seen that and therefore used discretion to give us a few more weeks to take an ESOL test.

Can we really be deported (as punishment, rather than a reflection that we don't meet the requirements) on some technicality like this, even when it can be proved beyond all doubt at the tribunal that my partner's English far exceeds the requirement?

There are no other issues - financially independent (meeting minimum earning requirements), law-abiding, never used public funds, pay all of our taxes.

I am not very sure to comment on this. But recently one of my friend went for ILR and he was not submitted his original degree for english language requirement .He just mentioned in the application, Like he already proven english language requirement for his previous extension.

Regards,
Suresh

Suresh, thanks for your reply.

This is the crazy thing - my partner has already proven to the HO in regards to English ability with the original settlement visa. Now trying to extend it AFTER settling in the UK for 2.5 years, they say the same certificate is not recognised. Even supplying KOL isn't enough for them. It's like they have decided they want to refuse us extension - how can they find any possible weakness in our application, then use that as an excuse. Zero discretion applied, and my partner has proven English ability to B1 level now and passed KOL. I just hope the judge can apply common sense. To be honest though, we shouldn't even have to be in the situation to appeal such a shoddy decision by the HO. Incidentally, the HO refusal letter itself was riddled with grammar and spelling mistakes...

The tribunal can take into account the test passed after the UKVI decision: s. 85(4) Nationality, Immigration and Asylum Act 2002 (click).

Thank you Amber for the link. That does reassure me very much - let's wait and see what happens at the tribunal which is only a few weeks away. I'll keep everyone posted.

Just to add to this - there appears to be a very similar case* to ours here:-

https://tribunalsdecisions.service.gov. ... 00985-2013

It appears that both the first-tier AND upper tribunal judges made decisions that the original appellant should be granted their visa - have I read that decision correctly? (that's essentially my question here). The case was taken to the upper tribunal because it appears the entry clearance officer disagreed with the first-tier decision.

*our refusal essentially boils down to an English test Certificate we submitted as being from a provider that was once on the UKBA list of approved providers, but was subsequently de-listed at the time of the application. Two judges seem to rule against the HO's refusal on the grounds that they can't retroactively invalidate certificates that were valid at the time the tests were taken. An example being if a provider ceased to stop trading, it would be ridiculous if the entire back catalogue of valid certificates they handed out suddenly became invalid because they commercially ceased to exist.

I've just had news that the HO have withdrawn their decision so the tribunal won't go ahead now. Initially good news, but I've read quite a bit that you can be stuck in limbo for months waiting for news back from the HO whe a decision is withdrawn. Will keep you all posted.

Further update - still waiting news from the Home Office. How to make any kind of plans in such limbo?

perplexed42 wrote:Further update - still waiting news from the Home Office. How to make any kind of plans in such limbo?

The best of luck hope it gets finalized for you soon, I'm in a similar situation where I am about to apply for an extension using the original (expired) English certificate, can you confirm which examining body yours was with?

AcrossBorders, my partner's examing body was MRELTS who are no longer on the UKBA's list of approved bodies, but obviously were at the time of the original visa application (just not approved when extending that visa).

A legal precedent was already set that this is a ridiculous and even WRONG way to deal with examining bodies that get removed from the list :-

https://tribunalsdecisions.service.gov. ... 00985-2013

There is no logical reason, however, why the de-listing of the assessing body should act retrospectively so as to deprive an applicant of recognition of their achievement in meeting the relevant standard at a time when that body was still considered competent to assess it.

(upper tribunal judge)