United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

BEFORE Upper Tribunal Judge FRANCES

 

HAVING considered all documents lodged and having heard Mr Badar of counsel, instructed by Mansouri & Sons Solicitors, for the applicant and Mr Lenanton of counsel, instructed by GLD, for the respondent at a hearing on 27 January 2025

 

IT IS ORDERED THAT:

 

(1)     The application for judicial review is dismissed for the reasons in the attached judgment.

(2)     The applicants to pay the respondent's reasonable costs to be assessed if not agreed.

(3)     There was no application for permission to appeal to the Court of Appeal.

 

(4)     Permission to appeal is refused because there is no arguable case that I have erred in law.

 

Signed: J Frances

 

Upper Tribunal Judge Frances

 

 

Dated: 31 January 2025

 

 

 

The date on which this order was sent is given below

For completion by the Upper Tribunal Immigration and Asylum Chamber

 

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent's and any interested party's solicitors on (date): 05/02/2025

Solicitors:

Ref No.

Home Office Ref:

 

Notification of appeal rights

 

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

 

A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

 

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).

 

 

Case No: JR- 2024 - LON - 001660

IN THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Field House,

Breams Buildings

London, EC4A 1WR

 

27 ^th January 2025

Before:

 

UPPER TRIBUNAL JUDGE FRANCES

 

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Between:

 

THE KING

on the application of

ALIREZA AIN

NEDA SADAT RAZAVI KHOSROSHAHI

NIKRAD AIN

Applicants

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ENTRY CLEARANCE OFFICER

Respondent

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Mr A Badar

(instructed by Mansouri & Son Solicitors ) for the applicant

 

Mr A Lenanton

(instructed by the Government Legal Department) for the respondent

 

Hearing date: 27 January 2025

 

 

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J U D G M E N T

 

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Judge Frances :

 

1.               The first applicant challenges the respondent's decision of 21 September 2023 refusing entry clearance as a skilled worker migrant and the administrative review decision of 21 March 2024 maintaining that refusal. The second and third applicants are dependants of the first applicant. I shall refer to the first applicant as 'the applicant' in this judgment.

 

2.               Permission to appeal was granted by Upper Tribunal Judge Bulpitt on 11 October 2024 (sealed on 14 October 2024). This decision was set aside by Judge Bulpitt on 8 January 2025 on the grounds the applicant had failed to comply with the pre-action protocol and had failed to effectively serve the sealed judicial review claim on 20 June 2024. The respondent was served with the sealed claim on 7 October 2024 and the acknowledgment of service post-dated the grant of permission. The application for permission to bring judicial review proceedings was adjourned and listed as a "rolled up hearing" on notice to the respondent.

 

Relevant facts

 

3.               The applicant applied for a skilled worker migrant visa on 20 June 2023. He stated in his application form that he had not passed an approved English language test in the last two years. The applicant appears to have taken his English language test after he submitted his visa application. The respondent takes no point on this issue.

 

4.               On 10 August 2023, the respondent emailed the applicant through his solicitor requesting additional information, namely: "evidence that you have met the English requirements as stated on Appendix English Language. This can be either a UKVI accredited English certificate from an approved testing centre, or..." (the other examples given are not relevant to this claim). The email included a hyperlink to the relevant guidance.

 

5.               On 21 August 2023, an employee of the applicant's solicitor emailed the respondent attaching a document described as an "English Language Certificate". The attached document was a copy of a stamped test report form ('TRF') issued by IELTS and dated 22 June 2023. It carried the applicant's name, date of birth, nationality and TRF number: 23IR002946AINA120G. It stated the validity of the TRF could be verified online and provided a web address.

 

6.               On 21 September 2023, the respondent refused the visa application stating:

"In support of your application, you submitted an English language certificate which is not approved by the Home Office. You provided an IELTS certificate which did not

contain the unique UKVI reference number. As such, the outcome of your English

language test could not be confirmed using the online verification system."

 

7.               On 27 October 2023, the applicant applied for administrative review. In a decision dated 21 March 2024, the respondent maintained the refusal of entry clearance stating:

" We have conducted checks using your name, date of birth, and passport details. There is no test result within any of these checks. Upon review, you did not meet English language requirements at the time of the ECO's decision and they are

correct to refuse your application under paragraphs SW 4.1, SW 7.1, SW 7.2 and 7.3

because you do not meet the requirements of Appendix English language.

The AR of your case has confirmed that the application was considered in accordance

with the Immigration Rules. You applied for entry clearance to the UK under the Skilled Worker route and the application was assessed according to requirements set out under Appendix Skilled Worker. As stated in the original refusal decision letter, the evidence provided failed to demonstrate that your application satisfies the full

requirements of these rules. Therefore, we have maintained the original decision to

refuse your application."

 

Grounds

 

8.               In summary, it is the applicant's case that he has provided an IELTS certificate. The English test is valid and contains a reference number which can be verified. It is the respondent's case that the certificate does not contain the unique UKVI reference number and, as a result, the test cannot be verified using the online verification system.

 

9.               The applicant challenges the refusal of entry clearance on the ground it is irrational for two reasons:

(1)     The respondent failed to engage with the evidence and has not considered the application with care and scrutiny.

(2)     The decision making process is wrong and not in accordance with the law because the certificate was capable of being positively verified online.

 

10.           The applicant submits the TRF provided in support of his application meets the relevant requirements of the Immigration Rules. The TRF number provided on the form is a unique reference number which allows the test to be verified using the provider's online verification system. The applicant's TRF contained the various centre stamps, the validation stamp and the TRF number.

 

11.           The respondent submits the applicant did not provide the required evidence that he had passed a secure English language test ('SELT') approved by the Home Office. He was therefore unable to obtain the ten mandatory English Language points required. The TRF provided by the applicant did not contain the unique UKVI reference number and the outcome of his English language test could not be verified for UKVI purposes. The applicant's TRF was not approved by the Home Office (as it did not contain the unique UKVI reference number) and therefore the test was not an approved test. The verification link provided in the applicant's grounds is insufficient for official UKVI use. The respondent submits that a UKVI number is a requirement for verification of IELTS SELT Consortium tests. The applicant was made aware of this requirement prior to his application being considered and was given a further opportunity to meet the requirements. He failed to do so.

 

Preliminary issue

 

12.           The applicant failed to comply with the case management directions to file and serve the trial bundle and skeleton argument 21 days before the hearing. The trial bundle was filed on 14 January 2024 and the skeleton argument on 23 January 2024. I find the delay is significant and substantial. The applicant's solicitor has given an explanation for the delay. Having considered all the circumstances of the case and the overriding objective, I find it is in the interests of justice to extend time. The respondent is also granted an extension of time to file her skeleton argument.

 

Immigration Rules and Guidance

 

13.           It is agreed that the relevant provisions are in Appendix English Language which provide as follows:

" English language test

EL 6.1. An applicant will meet the English language requirement if they have provided a valid digital reference number from an approved provider showing they have passed an approved English language test to the required level in the two years before the date of application.

The list of approved tests and providers, updated from time to time, can be found at https://www.gov.uk/guidance/prove-your-english-language-abilities-with-a-secure-english-language-test-selt#approved-test-providers-and-approved-tests . "

14.           The list of approved tests and providers can be found in Government Guidance. The applicant is outside the UK and therefore he can only take a SELT at one of the following providers: IELTS SELT Consortium; LanguageCert; Pearson; PSI Services (UK) Ltd; Skills for English (UKVI). For the results to be accepted, the test must be on the list of approved English language tests, sat at an approved test location and awarded in the two years before the date of application. The Guidance states:

"After you pass the test, you will be given a SELT unique reference number which you must use when making your application. If you do not include your reference number, your application may be refused.

You will find your SELT unique reference number on your test result as:

- 'UER' for Trinity College London tests

- 'UKVI number' for IELTS SELT Consortium tests

- 'Candidate URN' for LanguageCert tests

- 'SELT URN' for Pearson tests

- 'URN' for PSI Skills for English tests

You do not need to submit any documents as part of the immigration or nationality application. Test results and scores are checked using the SELT online verification system provided by each approved SELT test provider using a SELT unique reference number."

 

Refusal of Permission

 

15.           Mr Badar submitted it was apparent from the TRF that the provider IR120 was an approved provider and the applicant had taken an approved English test with IELTS. The Guidance provided that the English test could be verified using the TRF number and the validity of the test had been positively verified online using the providers own system located at http://ielts.idp.com. The TRF was sufficient to satisfy the requirements of the Immigration Rules and the applicant's English test could be verified using any SELT provider system.

 

16.           Mr Lenanton submitted that paragraph 6.1 of Appendix English Language expressly incorporated the Guidance into the Immigration Rules. The applicant had failed to show he sat an approved test with an approved provider. There was insufficient evidence to show that IELTS was the same as IELTS SELT Consortium or that the applicant had taken the 'IELTS for UKVI' test. The applicant failed to provide a SELT unique reference number. The TRF number was not in the same format as a UKVI number and it could not be verified on the IELTS SELT Consortium online verification system located at https://ukvi.cambridgeenglish.org/. This was not the same online portal as that relied on by the applicant. Mr Lenanton did not dispute the applicant had taken an English language test, but it was not a SELT approved test and it could not be verified online by the respondent.

 

17.           It is a requirement of the Immigration Rules to provide a valid digital reference number which in the case of IELTS SELT Consortium is a UKVI reference number. The TRF number is not a UKVI reference number. It is not a SELT unique reference number which can be verified on the SELT online system. The online portal relied on by the applicant was not the IELTS SELT Consortium online verification system.

 

18.           It is not apparent on the face of the TRF that IELTS is the same as IELTS SELT Consortium or that the applicant sat an approved test, namely 'IELTS for UKVI'. The TRF refers to 'IELTS General Training' not 'IELTS for UKVI'. If the applicant had sat an approved test with an approved provider there is no explanation for why he did not provide the UKVI reference number to the respondent.

 

19.           I find the guidance has been expressly incorporated into the Immigration Rules. The respondent engaged with the applicant's evidence and took into account the TRF which could not be verified using the IELTS SELT Consortium online verification system. The applicant's evidence that the English test could be verified under a different system was insufficient to satisfy the Immigration Rules and Guidance.

 

20.           The burden is on the applicant to show that he met the English language requirement. The respondent gave the applicant an opportunity to submit a valid digital reference number and he failed to do so. In all the circumstances, the respondent's conclusion that the applicant had failed to show he had passed an approved English language test was one which was open to her on the material before her.

 

21.           The grounds and submissions failed to disclose an arguable public law error on the part of the respondent. The refusal of entry clearance was not arguably unlawful or irrational. For these reasons permission is refused. The application for judicial review is dismissed.

 

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