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Judge Pirotta considered it arguable that Judge Coutts should not have concluded that the Secretary of State should have exercised discretion and applied her Evidential Flexibility Policy, because the English language test certificate was not in the wrong format: on the contrary it did not exist at the material time. (The issue of maintenance had been conceded by the Secretary of State at the hearing: see [10] of Judge Coutts�s determination.)
Indeed, paragraph 245AA(c) of the Immigration Rules states �The UKBA (now to be read as the Home Office) will not request documents where a specified document has not been submitted (for example an English language certificate is missing)��
The fact that the Respondent had passed an English language test in 2011 was not relevant as the Respondent had to produce a certificate valid for the current application. There would be no reason for the Secretary of State to have checked a previous application for that purpose. Even if that had been done, there would in any event have been no reason for Appellant to have made any further enquiries in the face of paragraph 245AA(c).
Thus while it is possible to see why the judge felt some sympathy for the Respondent, the only course open to the judge was to have dismissed the appeal under the Immigration Rules.
Accordingly the Upper Tribunal must allow the Secretary of State�s appeal, sets aside the determination and remakes the decision so as to dismiss the appeal
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