OA123092014

Although this is an appeal by the Secretary of State I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of China born on 17 th November 1990. His appeal against the refusal of leave to enter under paragraph 321A of the Immigration Rules was allowed by First-tier Tribunal Judge R G Walters in a decision dated 10 th July 2016.

Permission to appeal was initially refused by Designated First-tier Tribunal Judge McCarthy for the reasons given in his decision dated 2 nd February 2016. The application made to the Upper Tribunal was on the ground that Judge McCarthy refused permission on a misunderstanding of the Court of Appeal's judgment in SM and Qadir which reinforced the conclusions of the Upper Tribunal. The judge failed to appreciate that the Secretary of State had satisfied the evidential burden and it was then for the Tribunal to consider the credibility of the Appellant.

Permission to appeal was granted by Upper Tribunal Judge Kekić on 8 th March 2017 on the grounds that it was arguable that the First-tier Tribunal judge failed to give adequate reasons for why he found that the Respondent had failed to discharge the evidential burden of proving that the Appellant had used deception. The very brief findings of fact appeared to rely on the Appellant's knowledge of English but arguably that in itself did not establish that the Appellant did not use a proxy test taker and the judge failed entirely to engage with the fact that the test was found to be invalid.

Ms Isherwood relied on the grounds and submitted that the judge had failed to properly consider the evidence presented by the Secretary of State including the Appellant's interviews at port. The judge did not assess this evidence in his findings and conclusions. The fact that the Appellant spoke perfect English did not mean he had not used deception in obtaining his English language certificate in 2012. Each case had to be assessed on its facts and the judge had failed to demonstrate that he had assessed the Respondent's position.

The judge failed to identify the actual evidence upon which he relied. The judge had erred in law because the Respondent's generic evidence met the evidential burden ( SM and Qadir ). It was therefore for the Appellant to provide an explanation. The decision failed to follow that approach. There was no proper assessment of the Secretary of State's evidence and no proper assessment of the approach set out in SM and Qadir .