OA264652011

The appellant, a national of Iraq, appealed to the First-tier Tribunal against the decision of the respondent on 18 August 2011 refusing him Entry Clearance as a spouse. Judge Higgins dismissed the appeal because in his judgment the appellant failed to meet the requirements of the Rules in two respects: he did not produce an English Test Certificate from a provider approved by the Secretary of State; and he failed to show that on arrival he would be adequately maintained.

There was no appearance on behalf of the appellant before us. His solicitors indicated that it had not been possible to obtain instructions, although they had previously sought an adjournment and transfer of venue. The notice of hearing had been properly served and there was no adequate explanation of the absence of any representative. The appellant himself is outside the United Kingdom. This appeared to be an appropriate case to proceed in his absence and we did so.

The appellant�s principal problem is in relation to the English test. The test result submitted with his application did not meet the requirements of the rules because it was not from an approved test provider. Before the First-tier Tribunal there was a letter, adding nothing to the matter, and an IELTS certificate derived from a test on 29 October 2011. The certificate itself is dated 10 November 2011. It shows an overall score of 4.0 including speaking at 6.0 but listening only at 2.0.

The judge noted that he was concerned with the position at the date of the decision, 18 August 2011. He said that he could not take into account the IELTS certificate, dated months later, and that if he could take it into account he would have had doubts, from the 2.0 score for listening, whether it demonstrated the necessary competence.

It is true, as the grounds point out, that it is (for some purposes) the overall score that counts, but the judge was, or would have been, being asked to derive from this certificate a conclusion about the appellant�s ability to obtain such a certificate at the date of the decision. He was right to be very cautious about doing so; and in any event it is difficult to see how the evidence could fill the requirement to have a certificate at the relevant date.