IA007992016

The appellant's appeal against a decision to refuse his human rights claim was dismissed by First-tier Tribunal Judge Obhi ("the judge") in a decision promulgated on 29 th March 2017. The judge found that the appellant did not meet the requirements of the Immigration Rules ("the rules") for leave to remain. The Secretary of State had made a finding that the appellant obtained a TOEIC result by means of deception. The judge found that the Secretary of State's case was made out in this regard and that the appellant's explanation by way of response was unsatisfactory.

Assessing the Article 8 case outside the rules, the judge took into account the appellant's family circumstances, including the presence here of two children. Having regard to section 117B of the 2002 Act, the judge concluded that there were no significant obstacles to the appellant returning to Pakistan to apply for entry clearance in order to rejoin his wife and children here, or to the continuation of family life in Pakistan. As the appellant could not succeed under Article 8, the appeal was dismissed.

Permission to appeal was sought on the basis that the judge erred in law in giving weight to the Secretary of State's evidence showing deception. Some of the documentary evidence relied upon was in the name of an individual who was clearly not the appellant and there appeared to be some confusion in the Secretary of State's case, which may have led the judge astray, regarding the location of the test centre attended by the appellant. There appeared to be two candidates, South Quay College and London Eastern College.

Permission was refused initially but then granted by an Upper Tribunal Judge, who found that it was arguable that the judge erred in her findings regarding deception. Again, some of the documentary evidence relied upon by the Secretary of State referred to a different individual and although a statement was before the judge which referred to the appellant himself, it was unclear whether this was provided to the appellant or his representatives, arguably giving rise to a procedural error amounting to an error of law.

The Secretary of State also relied on a supplementary statement from Ms Hilary Rackstraw but this included errors about the appellant's status. At paragraphs 5 and 6 of her statement, mention was made of an application for indefinite leave to remain and refusal of that application but the appellant had never applied for leave of this sort. Although the heading and conclusion of Ms Rackstraw's witness statement referred to the appellant, the contents referred to someone else.