Post
by Vasudev1987 » Thu Apr 18, 2019 11:02 pm
Please help me
2015 entry clearance obtain spouse visa from india
Next extension in 2018 refuse I was give toiec in 2012
First tier allowed me appeal on Human Right bases please read my statement and help me what I have to do now can I chalage this design because may be home office put me on 10 year route please help me
Please help me my brother sister I allreday spent lot of money
Background
Ms xxxxx, instructed by Solicitors Ms xxxxxx, Home Office Presenting Officer
DECISION AND REASONS
Before
JUDGE OF THE FIRST-TIER TRIBUNAL xxxxx Between
MR
(ANONYMITY DIRECTION NOT MADE)
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
Respondent
1. Mr xxx 31, arrived in the UK from India in October 2010. He came on a student visa to start a diploma in business administration. Two years later, in October 2012, he made a further application to extend his visa but this time it was refused; it appears that by then Mr xxx had changed College and was not studying somewhere approved by the Home Office.
© CROWN COPYRIGHT 2019
HU/xxxxx/2018
2. After that Mr xxx simply remained in the UK unlawfully. In May 2013 he met his wife, Mrs Jxxxxxxx. She is a British citizen. They married in June 2015 and shortly afterwards he returned to India voluntarily and applied for entry clearance to rejoin her. This was granted and he returned in September 2015. Their son, xxxx was born in June 2016.
3. When his visa expired he made the present application for leave to remain but this was refused because it had come to light that the TOEIC certificate (Test of English for International Communication English language), submitted with the application in 2012 was obtained by fraud. Hence, he did not meet what are known as the suitability requirements of the Immigration Rules. In other words, because of this deception, his presence in the UK was not considered to be conducive to the public good.
4. As the refusal letter explained, this information was provided to the Home Office by the relevant testing body, Educational Testing Services (ETS), who had a record of his speaking test. The test in question took place at a venue called the Premier Language Training Centre on 22 August 2012. Using their voice verification software, and checked by trained listeners, ETS concluded that the test had been taken by someone who had undertaken multiple tests, i.e. a proxy, and so Mr xxx scores were declared invalid. There was also an issue relating to a litigation debt which has now been resolved and so is no longer relevant.
5. Ordinarily, there would be no obstacle to the grant of further leave. The main question in cases involving a British citizen child is whether it would be reasonable to expect her to leave the UK. The relevant Rule is in Appendix FM at paragraph EX.1.(a):
EX.1. This paragraph applies if
(a) (i)
the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; ...
6. The Rules are not law however; they are designed to strike the right balance between the public and private interests involved in such cases, and contain the suitability requirements relied on by the Home Office here. But there are now specific statutory
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provisions which apply in such cases, and Tribunals are directed to have regard to then in considering this balancing exercise. By section 117B (6) of the Nationality Immigration and Asylum Act 2002:
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where –
(a) the 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 UK.
7. A qualifying child includes, as here, a British citizen. The Supreme Court recently set out the correct approach to this provision in the case of KO (Nigeria) and others v Secretary of State for the Home Department [2018] UKSC 53. They quoted with approval the following passage from an earlier case1:
22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, ‘Why would the child be expected to leave the United Kingdom?’ In a case such as this there can only be one answer: ‘because the parents have no right to remain in the UK’. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made ...”
8. In the context of one parent only having leave to remain, they quoted another case as follows:2
58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?”
9. I set that out at the beginning to show that the suitability requirements of the rules play no part in this assessment. Indeed, the Supreme Court in KO (Nigeria) emphasised that the conduct of the parents was not a relevant consideration. This was reinforced recently by the Upper Tribunal in JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 00072 (IAC). That case involved a boy and girl with a British father and a Turkish mother, so if the mother had to leave the UK her children had the option of remaining in the UK. The Tribunal felt that the mother had been dishonest
1 SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245
2 EV (Philippines) and others v Secretary of State for the Home Department [2014] EWCA Civ 874
Appeal Number: HU/xxxxxx/2018
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in various respects, including fraudulently obtaining a visa so that she could enter the UK to be with her family here. Indeed they were very critical of her:
80. Our assessment of the appellant is that she is both dishonest and unscrupulous, each to a high degree. She has flagrantly defied the law of the United Kingdom by overstaying her leave for a large number of years, without bothering to seek to regularise her status; by making entry clearance applications that she knew full well were predicated on an entirely false basis; and in gaining access to the United Kingdom by employing dishonesty.
10. They went on to consider the implications:
84. Applying the “real world” analysis of paragraphs 8 and 19 of KO (Nigeria), the assessment of whether it would be reasonable in terms of section 117B(6) to expect the children of the appellant and her partner to leave the United Kingdom falls to be determined on the basis that there are powerful reasons why the appellant should be removed by the respondent under section 10 of the Immigration and Asylum Act 1999.
11. Nevertheless, they found in her favour. Whether looked at from the point of view of a short-term temporary departure with their mother in order to apply for entry clearance, or a longer-term separation, the children were settled at school and it would not be reasonable to expect them to leave. Hence:
96. We therefore conclude that, on the facts of this case, it would not be reasonable to expect the appellant’s children to leave the United Kingdom, in the event of her removal. This means the appellant’s appeal succeeds. It does so because Parliament has stated, in terms, that the public interest does not require her removal, in these circumstances. It does so despite the fact that, absent section 117B(6), the appellant’s removal would be proportionate in terms of Article 8 of the ECHR.
12. I have set out this much of the relevant law at the outset to show that the focus of this appeal has to be on the reasonableness, from Naman’s point of view, of his leaving the country with his father, not on his father’s conduct.
The Hearing
Documentary Evidence
13. The documents available to me included a bundle from the Home Office containing the refusal letter, application form and accompanying documents, mainly:
(a) passports;
(b) witness statements;
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(c) birth certificates;
(d) the ETS “look-up tool” print out for the TOIEC test;
(e) the generic TOEIC evidence described below;
(f) CAS details relating to the previous application;
(g) a report on the Premier Language Training Centre;
14. The generic evidence is the usual material provided in support of such ETS claims. It comprises witness statements from xxxxxxx and xxxxx – two senior Home Office members of staff – on the methodology used in such cases and a witness statement from a senior Home Office caseworker, xxxxxx. This advised that he had been tasked with providing a report on the test centre in question, and it showed that the pattern of results obtained there was consistent with centres where widespread cheating had occurred. A statistical distribution of the results showed that most candidates scored very highly for reading, writing and listening, which is what one would expect if proxies were being used, whereas at reliable test centres there was a more even distribution with results clustered in the mid-range. The ‘look-up’ tool for Mr xxxx showed that all of his three tests that day was found to be invalid and that this striking pattern applied to all three of the tests.
15. From Mr xxx I had a bundle containing a good deal of documentation. The main items were:
(a) further witness statements;
(b) his educational records;
(c) his IELTS certificate from 2008.
Oral Evidence
16. Mr xxxxx gave his evidence in English and maintained that he had not cheated. He explained that he came to study business administration but the college could only offer him IT, which he tried for a year then shifted to another college to study business. That was why his application was refused. He went to the Premier Language Training Centre in Barking, Essex, having looked it up online. He has not been in touch with them or with ETS about the results.
17. More generally, his parents and two sisters were still in India, and his wife was originally from the Punjab area too.
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Appeal Number: HU/xxxxxxx/2018
18. His wife gave a witness statement confirming his account and there was no cross- examination.
19. The parties then made their submissions.
Submissions
20. Ms xxxxxxxxx relied on refusal letter. She emphasised that he had chosen to go all the way to Barking to take the test and had done nothing to challenge the outcome. In the circumstances, she submitted that it would be proportionate for him to return to India and make a further application.
21. Ms xxxxxxx submitted that the generic evidence was not sufficient to pass the burden to the appellant. He had passed the IELTS exam to come to the UK and had studied in English. Since that application he had been in the UK for almost all of the last six years, co-operating with the Home Office, and this had only been raised at the last minute. In any event, it would not be reasonable to expect his son to leave.
22. I reserved the decision.
Conclusions
23. I have considered the evidence in the round, whether I have referred to it expressly or not, but I will start with the central issue of the English test. This sort of situation was first considered by the Court of Appeal in Shehzad and Chowdhury [2016] EWCA Civ 615, when Lord Justice Beaston described the approach to proving dishonesty in such cases:
4. It is common ground that for a decision to be made under paragraph 322(1A) [i.e. a refusal on suitability grounds] there must be material justifying a conclusion that the individual under consideration has lied or submitted a false document. It is also common ground that the Secretary of State bears the initial burden of furnishing proof of deception, and that this burden is an "evidential burden". That means that, if the Secretary of State provides prima facie evidence of deception, the burden "shifts" onto the individual to provide a plausible innocent explanation, and that if the individual does so the burden "shifts back" to the Secretary of State.
24. This approach was endorsed recently in Abbas [2017] EWHC 78 (Admin) which is set out in the refusal letter. The actual evidence provided in such cases was then considered more recently by the Court of Appeal in the case of Qadir [2016] EWCA Civ 1167, which noted the criticism made by the Upper Tribunal [UT] of the generic evidence:
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16. ... The statements and oral testimony of Ms xxxxxx and Mr xxxxx and written evidence by Mr xxxxxx, also a Home Office employee, are summarised at [12] to [21] and [24] and [26]. None of these witnesses had expertise in the science of voice recognition. Mr xxxxxx describes several demonstrations by ETS and states that he was a member of the Home Office delegation which met ETS representatives in the United States in June 2014. None of that delegation from this country were voice recognition experts or scientists and the process at the meetings did not include the provision or consideration of any voice recording (see [21] and [22]). Mr Green (see [12]) did not have the expertise to elaborate on the spreadsheet computer printouts about which he gave written evidence and which were stated to record the outcome of ETS's testing of the voice samples which were stated to relate to Messrs Majumder and Qadir.
17. The evidence adduced on behalf of Messrs Majumder and Qadir included an expert report on oral evidence by Dr Harrison, an expert in the science of voice recognition. He was critical of the evidence relied on by the Secretary of State (see UT [27] to [37]). The UT concluded at [70] that the evidence adduced on behalf of the Secretary of State was heavily weakened by the examination to which it was subjected by Dr Harrison's evidence, which the UT accepted in its entirety and which it stated enhanced and fortified the cases of Messrs Majumder and Qadir. ...
24. The summary of Dr Harrison's evidence in the UT's determination (at [34]) states:
"While the ETS automated voice sample analysis is in the abstract reasonable, the available evidence fails to demonstrate a satisfactory level of reliability."
In short, he considered that the Secretary of State's evidence did not provide sufficient information to allow any assessment of the reliability of the voice recognition processes. Moreover, the UT did not regard Dr xxxxx evidence as a knock-out blow to the Secretary of State's evidence. It also considered (see [19] and [23]) the lack of expertise in the science of voice recognition of either of the Secretary of State's experts and (see [25]) that Mr xxxx had nothing with which to counter Dr xxxxxxxx analysis and opinion.
25. The Court therefore accepted the view of the Upper Tribunal that the Secretary of State's generic evidence sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty, and so called for a sufficient explanation from the appellant.
26. In this case it is supported further by the evidence of Mr xxxxx about the pattern of results at this testing centre. To produce such a different pattern of results, a pattern consistent with cheating elsewhere, cheating must have been endemic at this centre. Not only that, but Mr xxxxx has gone out of his way to take the test there, travelling a considerable distance rather than enrolling at a testing centre in Birmingham. And
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when he has been accused of cheating, although represented by solicitors, he has taken no steps to challenge that conclusion with the college or ETS.
27. The main point relied on is that he had no need to cheat, that his standard of English was good enough to pass the test without the use of a proxy. I accept that, and it is a point in his favour, recognised in Qadir. The test in question was carried out in 2012, over six years ago and so his command of English then may have been less proficient but I accept that he had passed the ILETS test before arrival in the UK and must at least have been relatively capable in spoken English, which certainly calls into question the use of a proxy.
28. A similar situation was considered by the Upper Tribunal in MA (ETS - TOEIC testing) [2016] UKUT 00450 (IAC), which concluded that there might be many reasons why a person who was able to speak English to the required level would nonetheless have a proxy undertake the test:
“These include, exhaustively, a lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system. These reasons could conceivably overlap in individual cases and there is scope for other explanations for deceitful conduct in this sphere.”
29. In MA the appellant actually attended the hearing centre and had his photograph taken there, but that did not affect the view of the Tribunal that he had cheated. Nor does it in my view outweigh the serious concerns raised by the ETS results, the pattern of cheating at this centre and his decision to travel all that way. In reality, he has offered little or no explanation or evidence to dispute the results. I therefore find that the documentary evidence submitted satisfies the evidential burden and the appellant has not met his obligations at the second stage of the exercise. Despite the serious nature of such an allegation therefore, which I have very much in mind, I have to conclude on balance that it is made out.
Reasonableness
30. Given those facts, the next question is whether it is reasonable in those circumstances to expect xxxxxxx to leave the UK. There is no doubt that his father’s conduct in seeking to obtain leave to remain by deception was criminal conduct. The Immigration Act 1971 provides:
24A Deception.
(1) A person who is not a British citizen is guilty of an offence if, by means which include deception by him—
(a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or 8
Appeal Number: HU/xxxxxx/2018
(b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him.
...
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.
31. The fact that he has not been prosecuted is immaterial. It is a serious matter, and the Home Office have instead chosen to refuse his application for leave to remain, which might well be considered a reasonable use of their resources.
32. As already discussed however, the position is very similar to that of JG (Turkey). Indeed it is effectively identical, since there the appellant had also used fraudulent means to obtain a visa. In addressing the test of reasonableness, regard has to be had to the best interests of xxxxxx, applying the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to make it a primary consideration. In a situation of this sort, that involves a choice between the real-world alternatives of remaining in the UK with their mother or leaving with his father and returning to Turkey, whether for the longer or shorter term.
33. I had very little information about xxxxx beyond his young age; he will be three in June. Mrs xxxx witness statement said that his father was closely involved in his upbringing. No questions were put as to the intentions of the family, but her statement also refers to the heart-breaking consequences of his removal, with the family being torn apart, from which I take it that she would not return with her husband to Punjab.
34. If neither parent had leave to remain in the UK, then the decision would be an obvious one – it would be reasonable for xxxxxx to return with them to India. But it is not ordinarily to be expected that a British citizen parent and child will leave the UK. They might chose to do so, but that appears unlikely here.
35. I bear in mind that Mr xxx has previously returned to India and successfully made an application for entry clearance in 2015. If he were to attempt to do so again, I find that xxxxxx would not in practice go with him. The Upper Tribunal in JG (Turkey) emphasised that the question was not in fact whether he would in practice go, I have to hypothesis that he would go and then consider whether that decision was reasonable.
Appeal Number: HU/xxxxxx/2018
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36. It does not seem to me the act of a reasonable parent to take him to India, separating him from his mother. xxxxxx has not started school yet in the UK, but that will be an important consideration for any parent. It would not in fact be a short-term separation. Given my findings on the use of cheating, entry clearance is most unlikely to be granted, posing the dilemma of long-term separation or the family all going to live in India.
37. In setting out the real-world context of such decisions, the Supreme Court in KO (Nigeria) drew a distinction between cases not on the basis of the likely choices of the parents but on the basis of their legal rights. This made plain by paragraph 58, quoted at paragraph 8 above; the ultimate question here is whether it is reasonable to expect xxxxx to follow his father to India, not whether it is reasonable to expect his mother to go too.
38. That was the approach taken in JG (Turkey) too, and I note that in that case the family had at one stage lived together in Turkey for 17 months, so there was no obvious practical bar to them doing so again.
39. That approach reflects the fact that xxxxxx and his mother are British citizens, entitled to remain and enjoy the benefits of that citizenship. It would perhaps defeat the purpose to section 117B(6) in such cases to approach it on the basis of whether the British parent might chose to leave of her own accord. Be that as it may, the Upper Tribunal in JG (Turkey) concluded both that in enacting this measure Parliament had chosen to be more generous than required by Article 8 and I must therefore apply the same approach.
40. Accordingly, the appeal is allowed.
Notice of Decision
The appeal on human rights grounds is allowed. No anonymity direction is made.
Signed
Judge xxxxx
Judge of the First-tier Tribunal
TO THE RESPONDENT FEE AWARD
Date 15 April 2019
Appeal Number: HU/xxxx/2018
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Although I have allowed the appeal I make no fee award because appeal has been allowed principally because of evidence produced only at the appeal stage.
Appeal Number: HU/xxxxxx/2018
Signed
Judge xxxxx
