IA000122019 & IA000132019

The Appellants appeal against a decision of First-tier Tribunal Judge E M M Smith promulgated on 11 July 2019 ("the Decision") dismissing the Appellants' appeals against the Respondent's decision dated 28 January 2019 refusing the First Appellant leave to remain as a Tier 4 (student) with the Second Appellant as her dependent and refusing their human rights claim in consequence.

The Respondent refused the Appellants' application on the basis that the First Appellant had used a proxy test-taker when taking her English language test. This is therefore one of the many so-called "ETS" cases. The Judge having heard oral evidence from both Appellants concluded that the Respondent had made out her case in that regard and that the First Appellant had used deception. Having reached that finding, he went on to consider Article 8 ECHR and concluded that the Respondent's decision was not disproportionate.

The Appellants raise four grounds of appeal. The first two grounds concern the Judge's consideration of the evidence surrounding the ETS issue. The third ground asserts that the Judge adopted the wrong burden of proof on that issue. The fourth ground challenges the Judge's conclusion in relation to Article 8 ECHR independently of the ETS issue and based on consideration of the Respondent's delay in deciding the Appellants' applications for over four years.

Permission to appeal was granted by First-tier Tribunal Judge Neville on 9 September 2019 as follows (so far as relevant):

The appeals come before me to decide whether the Decision contains a material error of law and if I conclude that it does, either to re-make the decision or remit the appeal to the First-tier Tribunal for redetermination.