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This is an appeal by the Secretary of State against the decision of Judge Eldridge, sitting at Hatton Cross, to allow the appeal of NNR against the refusal his application for leave to remain in the United Kingdom on family life grounds. For ease of reference, I shall nevertheless refer to the parties in accordance with their status in the First-tier Tribunal.
The main reason that the Secretary of State refused the application was because the Appellant had not met the suitability requirements of Appendix FM of the Immigration Rules. This was because the Secretary of State alleged that in July 2013 the Appellant had relied upon a fraudulently-obtained English language test certificate in seeking limited leave to remain in the United Kingdom as a student. It is clear from Judge Eldridge's Record of Proceedings that the Appellant contested that allegation and claimed to have legitimately sat an English language test.
It is right to say that the Secretary of State also gave other reasons why she was refusing the Appellant's application. It was nevertheless clear from her reasons for refusal letter that the allegation of deception was the primary reason for refusal. Moreover, any decision to uphold this aspect of the Secretary of State's reasoning would have been determinative of the appeal, regardless of any other reasons that there may have been for dismissing it. Its importance cannot therefore be overstated.
However, in an otherwise extremely detailed and careful analysis of the Appellant's Article 8 rights, the judge failed to make any finding on this potentially critical issue. At paragraph 34, he effectively side-stepped the issue:
"Even if the Appellant had provided a false English language certificate in 2013 (before he met his partner and her children), that is not a factor strong enough to prevail over the strong expectation that it is the interests of these two young children that they remain in the United Kingdom with both parents and it is he, the Appellant, who could been seen as and is acting as their father."
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