Sumi v Entry Clearance Officer

LORD JUSTICE RICHARDS: This appeal relates to the requirement in paragraph 281 of the Immigration Rules, as it stood at 27th September 2012, to provide an English language test certificate from a provider approved by the Secretary of State for the purpose. The ultimate issue is whether an applicant for entry clearance could rely on a certificate from a provider which appeared on the Secretary of State's list of approved providers at the time the test was taken and the certificate was issued but which had been removed from the list long before the application for entry clearance was submitted and decided. A complication arises out of the fact that the list was originally maintained outside the rules but became part of the rules before the decision on the application for entry clearance was taken.

Paragraph 281 falls within Part 8 of the rules. At all material times it read as follows:

Paragraph A281 at the date of the decision read:

Paragraph A281 was inserted into the rules by a statement of changes (HC565) laid before Parliament on 5th September 2012 and on the face of it the paragraph took effect on 6th September 2012. But that is a point to which I will need to return.

Appendix O, to which paragraph A281 refers, had been inserted into the rules by an earlier statement of changes (Cm 8432) laid before Parliament in July 2012 and taking effect on 20th July 2012. The list of approved providers was, as I have mentioned, previously maintained by the Secretary of State outside the rules and was published from time to time on the Home Office website.

I should also mention that the rules themselves have been subject to a further amendment with effect from 6th November 2014 by a statement of changes (HC 693) laid before Parliament in October 2014, to provide that test certificates from providers whose approval has been withdrawn since the date of the test may be accepted as valid in certain limited circumstances. The regime introduced by that amendment postdates and has no application to the circumstances of the present case, and I will say no more about it.

The appellant is a Bangladeshi national born on 6th November 1988, who wishes to come to the United Kingdom to join her spouse, a British citizen. An application for entry clearance made by her in June 2011 was refused by the Entry Clearance Officer in August 2011, on grounds of failure to meet the requirement as to financial support without recourse to public funds. That refusal was upheld on appeal by the First-tier Tribunal in March 2012 and permission to appeal to the Upper Tribunal from that determination was refused.

In support of the June 2011 application the appellant relied on an English language test certificate dated 21st March 2011 from an organisation called English Management Direct (EMD). At the date of issue of the certificate, EMD was on the Secretary of State's list of approved test providers. It was however removed from a revised list published a few weeks later, on 6th April 2011. At the same time as publishing the new list excluding EMD, the Secretary of State set out transitional arrangements which permitted temporary reliance on EMD certificates in applications for leave to enter as a partner until 17th July 2011; but it was stated expressly that from 18th July 2011 all applications had to be submitted with evidence from a provider on the new list published on 6th April 2011.

So it was open to the appellant to rely, as she did, on the EMD certificate in support of her June 2011 application for entry clearance, and it is to be noted that the English language requirement played no part in the refusal of that application.

We are concerned however with a fresh application for entry clearance, submitted by the appellant on 26th June 2012. In support of that fresh application she relied on the same English language test certificate from EMD as she had relied on for her first application. The fresh application was refused by the Entry Clearance Officer on 27th September 2012, this time on the ground that the appellant had not met the English language requirement since the certificate she submitted was not from an approved provider.

She appealed to the First-tier Tribunal against that refusal. She contended that since no issue had been taken as to her compliance with her English language requirement when the first application was dealt with, it was wrong to say that she could not meet the requirement. But the position before the Tribunal was complicated by the fact that by the time of the hearing of the appeal in August 2013 she had obtained further English language test certificates, this time from a provider on the current approved list. Those certificates had been obtained in March 2013, many months after the date of the Entry Clearance Officer's decision. Despite the basic rule that appeals against an entry clearance decision must be determined by reference to the evidence available at the time of the decision, the First-tier Tribunal judge allowed the appeal by reference to the new certificates.

This led to an appeal by the Entry Clearance Officer to the Upper Tribunal against the First-tier Tribunal's determination. On that appeal the Upper Tribunal judge held that the First-tier Tribunal had erred in law in taking the new certificates into account. The Upper Tribunal judge went on to consider whether that error was material, and in particular whether the EMD certificate actually submitted to the Entry Clearance Officer met the English language requirement. He held the certificate did not meet that requirement because EMD was not on the list of approved providers at the date of the Entry Clearance Officer's decision. Accordingly he set aside the determination of the First-tier Tribunal for error of law and he remade that decision, dismissing the appellant's appeal against the refusal of entry clearance.

That determination by the Upper Tribunal is the subject of the present appeal to this court. Permission to appeal was granted by Lewison LJ on an oral renewal.

In his written skeleton argument, Mr Biggs, who appears on behalf of the appellant, submits that the policy behind the requirement to submit a certificate from an approved English language test provider is self-evidently to require applicants to provide reliable evidence that they have a minimum command of English. It reflects the Secretary of State's policy judgment that those seeking to join their spouses in this country should have a minimum standard of English. Mr Biggs states that the appellant obtained the EMD certificate at a time when that organisation was on the list of approved providers and that she relied on it without objection in support of her June 2011 application for entry clearance.

None of that appears to me to be contentious in itself, but it takes the appellant nowhere in her challenge to the refusal of a fresh application in June 2012.

Mr Biggs points out that at the time of that fresh application the relevant requirement of the rules was simply the requirement in paragraph 281 to submit a certificate from an English language test provider approved by the Secretary of State. The requirement for the provider to be on the list in Appendix O was inserted only later, in September 2012 by HC565. The first main submission he makes is that the requirement for the provider to be on the list in Appendix O did not apply to the appellant's application. made as it was before that requirement was introduced into the rules.

He accepts, as he must do, that the normal rule or default position is that an application for entry clearance falls to be decided on the basis of the rules in force at the date of the decision@ see Odelola v Secretary of State Home Department [2009] UKHL 25, [2009] 1 WLR 1230, in particular at paragraph 7 and 38. But he submits that normal rule is displaced in this case.

The principal argument he relied on for that purpose in his written skeleton argument is one he conceded in oral submissions to be unsustainable and which he therefore withdrew. It was based on the wording of the implementation section at the beginning HC565. Unfortunately it was based on the wording of the wrong paragraph in that section. The relevant paragraph reads in unqualified terms:

The change that introduced paragraph A281 into the rules was in paragraph 85 of that statement and was therefore covered by that provision. It follows that paragraph A281 took effect on 6th September 2012, before the decision was made on the appellant's application for entry clearance. There was no qualification that it was not to apply to applications made before a certain date. There was nothing to displace the normal rule whereby the decision on the application fell to be made on the basis of rules at the time of the decision, that is to say the rules that included paragraph A221.

In his oral submissions Mr Biggs fell back on two further arguments relating to purpose and context in support of the submission that paragraph A281 did not apply to the appellant's case. One was that at the time of the application it was impossible for an applicant to know what requirements would have to be met under a provision that did not exist at that time, so that it cannot have beem intended that such a provision when introduced would bite on the application. When applied to the appellant's own case, this argument can be seen to be without substance. At the time of her application the appellant knew or should have known that EMD had been removed from the Secretary of State's list of approved providers more than a year previously and that the Secretary of State was no longer accepting certificates from that provider. The subsequent introduction of Appendix O into the rules and the insertion of paragraph A281 tying the approval referred to in paragraph 281 to the list of providers in Appendix O did not alter the substantive position at all. It simply gave effect within the rules to the position that would otherwise have obtained outside the rules.

Of course, requirements can in principle change between the date of an application and the decision on that application, and an applicant may not be able to foresee those changes. But that problem was recognised and taken into account by the House of Lords in affirming the normal rule laid down in Odelola, and it cannot be relied upon as a reason for displacing the normal rule. One would expect express language, such as specific transitional provisions, if the normal rule is to be displaced. Such transitional provisions are often to be found in this area but there were none affecting the present case.

The second fallback argument deployed by Mr Biggs took us on what can fairly be described as a magical mystery tour of provisions referring to Appendix FM and Appendix FM-SE, including paragraphs A277C and A280. This all arose out of the fact that paragraph A281, in addition to providing that an English language test provider approved by the Secretary of State means a provider specified in Appendix O, contains the entirely separate provision that in Part 8 "specified" means specified in Appendix FM-SE unless otherwise stated. Mr Biggs appeared to be suggesting that because provisions in appendix FM or FM-SE did not apply to an application made at the time when the appellant made her application, that part of paragraph A281 referring to Appendix O cannot have been intended to apply to such an application. I do not pretend to have understood the detail of the argument but I found the exercise wholly unpersuasive.

I have done my best to describe its various elements fairly, but I have no hesitation in rejecting Mr Biggs' first main submission for the reasons I have given. In my judgment, the Entry Clearance Officer was correct to decide the appellant's June 2012 application for entry clearance by reference to the rules in force at 27th September 2012, the date when the decision was taken. At that date paragraph A281 was in force. Reference was therefore properly made to Appendix O and reliance was properly placed on the fact that EMD was not in the list in Appendix O.

Mr Biggs conceded that his next main submission concerning the true construction of paragraph 281 itself did not arise if he lost on the first main submission. That is because he accepted that EMD was at no time included in the list in Appendix O, so that if there was a requirement for the provider to be in the Appendix O list the appellant must fail.

Nevertheless I think it right to examine the point of construction because it has some wider importance and because the conclusion I have reached on it means that the appellant's appeal would fail even if I had taken a different view on the point I have already discussed.

Mr Biggs submits that the date on which the test provider is required to be on the approved list is the date when the test is taken or the certificate is issued, rather than the date of the application for entry clearance or the date of the decision in respect of that application. He submits that this is implicit in the rule. The suitability of a test can only sensibly be judged at the time it is taken because the standards employed in testing may change over time. Further, if the test was reliable when taken, its reliability will not change over time. If the focus were on approval of the provider at the date of the decision it would give rise to the possibility of the applicant being allowed to rely on a test the suitability of which had not been assessed at the time the test had been taken. This would undercut the purpose of the rule because it would mean that potentially unreliable test certificates might be treated as definitive evidence of competence in the English language. Mr Biggs contends that the appellant's construction, by contrast, would avoid such undesirable consequences. It would also avoid the unfairness that arises if an applicant pays for, sits and passes an English language test with an approved provider but is then unable to rely on that certificate because the provider's approval has subsequently been withdrawn.

That is the way Mr Biggs puts the appellant's case on this issue. For my part, I would reject that case. In my judgment the relevant rules are to be construed as requiring an applicant to provide a certificate from a provider who is currently approved by the Secretary of State, that is to say who is currently on the Appendix O list, rather than allowing the provision of a certificate from a provider who was approved at the time of the test but whose approval has subsequently been withdrawn.

That seems to me to be the clear and obvious meaning of the provision. It is also supported by strong policy considerations which are emphasised in the written skeleton argument of Mr Gullick on behalf of the respondent – policy considerations far weightier, in my view, than those Mr Biggs seeks to deploy in support of his strained construction of the provision. One needs only to consider the reasons why a test provider’s approval might be withdrawn. The Secretary of State might discover that a particular provider was not applying appropriate standards or that the results were prone to fraud or error. She might decide to apply more rigorous criteria across the board, which a provider hitherto on the list was unable to meet. Those considerations show how important it is that there exists a current approval rather than a merely historic approval of the test provider.

There must, moreover, be a mechanism in place at the time of the decision whereby certificates submitted by an applicant can be verified. That can be done with providers who are on the approved list at the time because it is inherent in the continuing approval that they continue to meet the relevant criteria and they will have an ongoing relationship with the Home Office to allow for a verification process. Verification may not be possible, by contrast, in the case of a provider who is no longer on the list, whether removal from the list was at the instigation of the Secretary of State or at the request of the provider. If, for example, removal resulted from a concern about the provider's reliability, the Home Office may not have sufficient confidence in a verification process with that provider. But in any case the provider may no longer be willing to co-operate or may not have retained the relevant records or may even have ceased to exist.

In an unreported decision promulgated on 23rd January 2014, in the case of Mahmood v Entry Clearance Officer, the Upper Tribunal held, contrary to the Upper Tribunal's determination in the present case, that the relevant requirement in paragraph 281 of the rules is for an applicant to submit a certificate showing the applicant met the specified standard as assessed by a body approved for that purpose at the time of the assessment, so that an applicant could meet the requirement by the submission of such a certificate even where the test provider had had its approval withdrawn by the time of the application for entry clearance. That is of course in line with the submissions made by Mr Biggs in the present appeal. As follows from what I have said, however, the approach adopted by the Tribunal in that case was in my view erroneous, whereas the approach taken by the Upper Tribunal judge in the present case was correct.

For all the reasons I have given I would dismiss this appeal.

MRS JUSTICE GLOSTER: I agree that this appeal should be dismissed.

MR JUSTICE BAKER: I also agree.