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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU153562019 [2021] UKAITUR HU153562019 (5 October 2021)
URL: http://www.bailii.org/uk/cases/UKAITUR/2021/HU153562019.html
Cite as: [2021] UKAITUR HU153562019

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/15356/2019

 

 

THE IMMIGRATION ACTS

 

 

Heard at Manchester CJC

Decision Reason Promulgated

On 24 August 2021

On 05 October 2021

 

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

 

 

Between

 

DOROTEIA MANUEL F BERNARDO NETO

( Anonymity direction not made)

Appellant

and

 

AN ENTRY CLEARANCE OFFICER

Respondent

 

 

Representation :

For the Appellant: Ms M Hussain of Maya & Co Solicitors.

For the Respondent: Mr A McVeety, a Senior Home Office Presenting Officer.

 

 

DECISION AND REASONS

 

1.                 On 8 April 2019 the appellant, a female citizen of Angola born on 29 August 1980, applied for entry clearance as the spouse of a person present and settled in the United Kingdom. That application was refused by an Entry Clearance Officer (ECO) on 18 July 2019.

 

Background

 

2.                   The reason for the refusal is that although it was accepted the application did not fall for refusal on grounds of suitability pursuant to Section S-EC Appendix FM, and it was accepted the appellant met the eligibility relationship requirements and financial requirements, it was not accepted the appellant met the eligibility English language requirement of E-ECP.4.1 to 4.2. for the following stated reasons:

 

You are not exempt from the English language requirement under paragraph E - ECP.4.2. In addition, you are not a national of a majority English speaking country listed in paragraph GEN 1.6 and have not passed an English language test (A1 Level of Common European Framework) with a provider approved by UKVI and/or do not hold an academic qualification recognised by NARIC UK to be the equivalent to the standard of a Bachelor's or Master's degree in the UK, which was taught in English.

 

You have stated that there are circumstances that would prevent you from meeting the English language requirement.

 

As evidence of this you have provided a Medical Report signed by Avenida Deolinda Rodrigues from Clinica Santo Antonian in Luanda, which states that you are hospitalised on 20/2/2019 with mental health problems. However, this document does not detail why you would be unable to sit or take an English language test as required. This letter is also dated two weeks prior to your date of application. It's not unreasonable to expect that a test could have been taken earlier. Furthermore, you have stated on both your Visa Application Form and Appendix 2 form that you and your husband communicate with each other in both English and Portuguese.

 

I am satisfied, with the above information, that there are no exceptional circumstances permitting you from not sitting an English language test.

 

I therefore refuse your application under paragraph EC-P.1.1(d) the Appendix FM of the Immigration Rules (E-ECP.4.1 and 4.2).

 

3.                   The decision-maker went on to consider whether there were exceptional circumstances in the case rendering refusal a breach of Article 8 ECHR, as it would result in unjustifiably harsh consequences for the appellant or the family but found no such consequences had been made out on the basis of the information before the decision-maker.

4.                   In the Visa application form relating to the English language requirement the appellant was asked two questions in relation to which she provided the following answers:

 

87. Are you exempt from the English language requirement? Yes

88. How are you exempt from the English language requirement? Medically exempt from sitting an English language test.

 

5.                   The appellant appealed the refusal which came before a judge of the First-tier Tribunal who expressed concerns regarding the medical evidence provided.

6.                   It was not disputed before the First-tier Tribunal that the appellant could not take the English language test in Angola as there is no approved test centre there and that the nearest test centre was probably in Windhook in Namibia.

7.                   It was accepted before the First-tier Tribunal that the UK-based sponsor has health issues of his own and whilst expressing sympathy for the appellant and sponsor it was found that neither the appellant nor sponsor had made any attempt to explore whether the appellant could attend the centre in another country and was just proceeding on the basis that her health issues prevented her from taking the test.

8.                   The First-tier Tribunal also noted that there was inadequate evidence to explain why the UK-based sponsor could not accompany the appellant to the test centre in Namibia; for although he has a disability he had travelled to Angola in the past it had not been suggested before the First-tier Tribunal that the appellant could not access an English language course to assist in preparing for the test in Angola.

9.                   The decision of the First-tier Tribunal was set aside by the Upper Tribunal for the reasons set out at [12] of the decision of Upper Tribunal Judge Jackson dated 23 April 2021, which is in the following terms:

 

12. The factual circumstances before the First-tier Tribunal, which include limited evidence of mental health problems for the Appellant, her care of a young child, the Sponsor, who is disabled, being in the United Kingdom caring for a British citizen child in education here; together with a very long journey required to another country to take an English language test, at least raised prima facie issues, not only of practicality but also of reasonableness prior to arrival in the United Kingdom. The failure to expressly consider this or the Respondent's guidance (albeit not relied on expressly in the First-tier Tribunal) was a material error of law. The Appellant's ability to meet the requirements of the Immigration Rules is a material factor in the assessment of proportionality, as is, arguably, the reasonableness of undertaking the English language test on the facts of this case, such that the error is material to the outcome of a human rights appeal. For these reasons, the decision must be set aside and remade.

 

Discussion

 

10.               The requirement for an individual to prove their ability to speak English to the requisite standard is not new. The respondent's guidance on this issue ' English language requirement: family members under Part 8, Appendix FM and Appendix Armed Forces Version 7.0, 6 April 2021' sets out a useful summary of the chronology of developments in this area in the following terms:

 

An English language requirement was introduced on 29 November 2010 for those applying for entry clearance or leave to remain under Part 8 of the Immigration Rules as a fiancé(e), proposed civil partner, spouse, civil partner, unmarried partner or same sex partner of a British citizen or a person settled in the UK.

 

From 6 April 2011, the English language requirement was introduced for those applying for entry clearance or leave to remain as the post-flight spouse, civil partner, unmarried partner or same sex partner of a person in the UK with refugee or humanitarian protection status.

 

From 9 July 2012, Appendix FM to the Immigration Rules extended the English language requirement to those applying for entry clearance or leave to remain as a parent of a child in the UK.

 

The English language requirement has applied since 29 November 2010 to those applying under Part 8 as the partner of a member of HM Forces who is a British citizen or has settled status. From 1 December 2013, the requirement was extended to the partners of foreign or Commonwealth members of HM Forces who apply under Appendix Armed Forces and to the partners of British or settled members of HM Forces who apply under that Appendix.

 

From 28 July 2014, section 19 of the Immigration Act 2014 reinforces the public interest under Article 8 of the European Convention on Human Rights (right to respect for private and family life) in migrants being able to speak English, to reduce burdens on the taxpayer and promote integration.

 

The lawfulness of the pre-entry English language requirement in the Rules was upheld by the Supreme Court in its 18 November 2015 judgment in Ali & Bibi v SSHD [2015] UKSC 68.

 

On 3 November 2016, Immigration Rules changes for a new English language requirement at level A2 of the Common European Framework of Reference for Languages (CEFR), announced in principle on 18 January 2016, were laid for those applying for further leave in the UK as a partner or parent, after completing 30 months in the UK on a 5-year route to settlement under Appendix FM. This new requirement applies to those whose previous period of leave expires on or after 1 May 2017.

 

11.               The requirement to prove the ability to meet the required level is not, however, absolute. It is also recognised in the guidance that there may be circumstances which may prevent an individual complying with this requirement. In that regard the guidance states:

 

Exceptional circumstances exemption

 

The applicant is exempt from the English language requirement if the decision maker considers that there are exceptional circumstances that prevent the applicant from meeting the requirement.

 

This exemption is only applicable where there are exceptional circumstances specifically relating to the ability of the applicant to meet the English language requirement.

 

An applicant granted an exemption on the basis of exceptional circumstances at the entry clearance stage will be required to meet the English language requirement at A1 level when they apply for further leave to remain after 30 months, unless they remain exempt on this or another basis.

 

On 24 July 2014 the automatic exemption for an applicant who is a long-term resident of a country with no approved A1 test provision was withdrawn.

 

Consideration of exceptional circumstances

 

Each application for an exemption on the basis of exceptional circumstances will be considered on its merits on a case-by-case basis.

 

The applicant must demonstrate, in their application for entry as a partner or parent, that as a result of exceptional circumstances they are unable to learn English before coming to the UK or it is not practicable or reasonable for them to travel to another country to take an approved English language test. Partners of members of HM Forces must also demonstrate this.

 

Evidence of the nature and impact of the exceptional circumstances must be clearly provided, for instance examples of previous efforts to access learning materials or to travel overseas to take an approved test and the obstacles to doing so. This must include evidence provided by an independent source (for example, an appropriately qualified medical practitioner) or capable of being verified by the decision maker.

 

Examples of situations in which, subject to the necessary supporting evidence, the decision maker might conclude that there were exceptional circumstances, might include where the applicant:

 

• is a long-term resident of a country in international or internal armed conflict, or where there is or has been a humanitarian disaster, including in light of the infrastructure affected

• has been hospitalised for several months immediately prior to the date of application • is the full-time carer of a disabled child also applying to come to the UK Page 23 of 31 Published for Home Office staff on 06 April 2021

• is a long-term resident of a country with no approved A1 test provision and it is not practicable or reasonable for the applicant to travel to another country to take such a test

• is a long-term resident of a country in which the applicant faces very severe practical or logistical difficulties, which cannot reasonably be overcome, in accessing the learning resources required to acquire English language speaking and listening skills at CEFR level A1

 

Lack of or limited literacy or education will not in itself be accepted as exceptional circumstances.

 

It will be extremely rare for exceptional circumstances to apply where the applicant is in the UK. However, in an exceptional case, the applicant must set out the relevant circumstances in their application as a partner, parent or partner of a member of HM Forces, and submit relevant supporting evidence.

 

Countries with no approved A1 test provision

 

From 24 July 2014, applicants who are resident in a country with no approved A1 English

language test are expected to travel to another country to take such a test, subject to the transitional arrangements in the next paragraph. Only where they can demonstrate in their entry clearance application that it is not practicable or reasonable for them to do so will they be exempt from the requirement prior to entry to the UK. This exemption will not be applicable where an approved A1 test is available in the applicant's country of long-term residence.

From 24 July to 14 August 2014, partner and parent visa applicants who are a longterm resident of one of the following countries, which had no approved A1 test provision prior to 24 July, could continue to rely on their residence in that country as the basis for exemption from the requirement for A1-level English language speaking and listening skills prior to entry to the UK in a partner or parent application submitted by 14 August 2014:

• Brunei

• Burkina Faso

• Cape Verde

• Central African Republic

• Chad

• Comoros

• Congo

• Darussalam

• Democratic Republic of Congo

• Equatorial Guinea

• Eritrea

• Guinea-Bissau

• Haiti

• Ivory Coast

• Kiribati

• Rwanda

• Samoa

• Sao Tome Principe

• Seychelles

• Sierra Leone

• Somalia

• Swaziland

• Togo

• Turkmenistan

• Wallis and Futuna Islands

 

From 24 July 2014 (or from 14 August 2014 in respect of the countries listed above), an applicant seeking exemption because there is no approved A1 test provision in their country of long-term residence should provide in their visa application a detailed explanation of why it is not practicable or reasonable for them to take a test in another country. Where relevant, they should provide details of what steps they have taken to take an approved A1 English test and submit any supporting evidence with their visa application.

 

Applicants should check the availability of approved A1 English language testing in their country of long-term residence before submitting an application which seeks to rely on this exemption. Annex A sets out countries where there was no approved A1 test provision as at 29 March 2017. This list is subject to change and the Home Office is working with the approved test providers to establish A1 testing in countries where there is no current provision. From 6 April 2015 pop-up testing has been introduced for the first time in places where there is lower demand and where testing may not have previously existed.

 

Some applicants as a partner or parent already travel overseas to take an approved A1 test because this is more convenient than travelling to an approved test centre in their own country. Many applicants as a partner or parent are already required to travel to another country to submit their biometrics at a Visa Application Centre in order to apply for a settlement visa.

 

Reasons why it is not practicable or reasonable for an applicant to take an approved A1 test in another country will normally require more than inconvenience or reluctance to travel overseas. Subject to supporting evidence, such reasons might exist where for example:

• exit visa requirements or restrictions make it very difficult for the applicant to travel overseas

• the applicant faces insuperable problems in meeting immigration requirements to visit a country with an approved test centre

• the applicant faces unreasonable additional travel or accommodation costs to visit a country with an approved test centre. Some applicants as a partner or parent already incur travel and accommodation costs to attend an approved test centre in their own country or to give their biometrics at a Visa Application Centre. In addition, applicants for a settlement visa as a partner or parent are required to meet a financial requirement and it is reasonable to expect that they (or their sponsor in a partner application) will generally be able to afford reasonable costs incurred in making their application

• other exceptional circumstances prevent the applicant taking an approved A1 test in another country Each application for an exemption from the requirement for A1 English prior to entry to the UK because it is not practicable or reasonable for the applicant to take an approved A1 test in another country will be considered on its merits on a case-by case basis.

 

12.               Although it was accepted by the First-tier Tribunal there was no approved A1 test centre in Angola that country does not appear on the list above or at Appendix A to the guidance, but as this matter was not raised before the Upper Tribunal and as the First-tier Tribunal refers to what appears to be a concession that the required test facility was not available in Angola, the merits of the appeal shall be determined on the basis that the nearest test centre is that in Namibia.

13.               The only ground on which the appellant claimed to be entitled to an exemption in her application form was that of her inability to take the test. The medical report relied upon as proof of this entitlement is criticised by the First-tier Tribunal Judge. That report is in the following terms:

 

"This is a patient who was admitted to our Clinic on 20 February 2019, being hospitalised with mental health problems. The patient was feeling unwell for a few days and self medicated without consulting a doctor. The symptoms made the patient unable to understand the questions that were being asked by the doctors and sometimes giving answers that did not have anything to do with the questions asked.

 

Mentally, the patient presented a clinical picture of acute mental dullness when perceiving the information, she has learning disability."

 

14.               For the purpose of the hearing before the Upper Tribunal the appellant seeks to rely upon a further report dated 10 May 2021, the translation of which reads:

 

Republic of Angola

Ministry of Health

Provincial Government of Angola

Cajueiros General Hospital

 

I, Marta Ngola, having held a degree for the past 25 years from Antonio Agostino Neto University in the speciality of Psychology and having worked at the Bom Jesus clinic for over 15 years with the General Council of Angola No 18045.

 

Having observed the patient DOROTEIA MANUEL FRANCISCO BERNANDO NETO, I have concluded that she is suffering from psychological stress and due to that condition is incapable of taking the English test, either at the current time or in the future, due to mental incapacity.

 

The aforementioned stress has worsened due to the fact that her husband is away and due to recent childbirth.

15.               It was not suggested that the claim the appellant is suffering psychological stress lacks credibility. Psychological stress is the mental and/or emotional strain from activities and events in life. The birth of a child and caring for a young baby without the further support and being apart from another child and her husband, who is in the United Kingdom, together with the stresses of the visa refusal are all factors that may contribute to this.

16.               The term "mental incapacity" has a specific meaning within psychiatry, but there is no formal diagnosis of a recognised condition or the reasons why such could be shown to be met. The report does not specify any psychiatric illness, and indeed the author is noted to be a psychologist. It appears that what is being said is that due to the stress faced by the appellant she is claiming that she cannot at this stage undertake the required test.

17.               Even if that is how the appellant feels the guidance requires more. Whilst the guidance is not a rule or statute it sets out the Secretary of State's position in relation to circumstances in which the requirements for entry clearance approved by Parliament can be bypassed. The statement that the situation is one that will prevail now and in the future is also too generalised and not supported by adequate reasoning or evidence.

18.               There is sympathy for the appellant in relation to the situation in which she finds herself, but that is not enough as recognised in the guidance.

19.               It must be remembered that A1 CEFR is at the bottom of the CEFR language levels hierarchy. At this level, the focus is upon exchanging basic information such as the ability of a person to introduce themselves and demonstrate capacity for small talk around such issues as where they come from, and general matters communicated at a slower pace and using very simple words. In this respect it must be noted that the evidence suggests the appellant and sponsor communicate in both English and Portuguese. This may indicate their standard of conversation is at the requisite A1 level with no evidence of issues of stress or "mental capacity" impacting upon the appellant's ability to speak English with her husband. It is hard to see how the appellant's claim is supported by the psychologist That she cannot take the test is not made out. She may not wish to do so but that is a different matter.

20.               There was also discussion at the hearing about the ability of the appellant to be able to travel to Namibia to sit the test. I agree with the submission of Mr McVeety that insufficient evidence was provided to show the appellant could not travel to Namibia. That country's borders are open and insufficient evidence was provided to establish that the appellant would not be admitted to Namibia under the Covid -19 regime in place, or for any other reason.

21.               The claim of inability to travel as Angola is a country and state of war was not made out. Whilst the Foreign and Commonwealth Office website referred to at the hearing advises against all but essential travel for British citizens travelling to Angola to:

 

     the province of Cabinda (but not including Cabinda city)

     within 1km of the border with the Democratic Republic of Congo in Lunda Norte province, except at official border crossings and their access roads.

     the remainder of Angola based on the current assessment of COVID-19 risks

 

it is not made out the conditions within the country itself are such as to make prospects of travel unreasonable for those who live in the country such as the appellant. The appellant's home address given in the Visa application form is in Luanda, from where flights to Namibia depart, making travel outside the capital unnecessary.

22.               It was not made out that the country conditions in Namibia make it unsafe as a result of armed conflict, or otherwise for, the appellant to travel there.

23.               The appellant has provided no evidence to show that she has attempted to secure a visa or to complete the formal requirements required to enable entry to Namibia, which undermines her claim not to be able to travel there or gain access.

24.               There are two main means of travel from Angola to Namibia being by aeroplane and by bus. It is noted from the Visa application form that the reason given by the appellant for why she could not complete the English language test was that she was medically exempt rather than that it was impractical or unreasonable to expect her to travel to another test centre. That claim arose at a later date after the refusal.

25.               All the evidence of the family finances, including evidence of the purchase of a return flight ticket to Angola by the UK based sponsor, and ability to satisfy the financial requirements of Appendix FM is insufficient to rebut the presumption that there are adequate financial resources available. As Mr McVeety noted in his submissions it was not claimed there are insufficient resources for the appellant and the child to fly to the United Kingdom, which is probably far more expensive than the cost of flying from Angola to Namibia, although details of such costings were not part of the evidence as no such enquiries appear to have been made.

26.               It is not made out the appellant could not study for the English language test in Angola and then travel to Namibia to take the test, which would not require an extended stay.

27.               I do not find the appellant has made out an entitlement to an exemption from the requirement to demonstrate the minimum level of English language required to satisfy the Immigration Rules. Accordingly, I find the decision of the Entry Clearance Officer that the appellant had failed to explain why she should be exempt from meeting the English language requirement, resulting in the refusal referred to above has not been shown to be wrong or contrary to the law or guidance, or an unreasonable or irrational exercise of the ECO's discretion. I find the appellant has not made out she can satisfy the Appendix FM of the Rules for this reason.

28.               This is a human rights appeal and therefore even though the appellant cannot meet the Immigration Rules a full article 8 assessment is required.

29.               It was not disputed that the appellant has family life with her husband, with her older child in the UK, or with the youngest child who lives with the appellant in Angola, or they with each other.

30.               It was not made out that the needs of the child in the UK are not being met by her father.

31.               The generalised statement made by Ms Hussain that the best place for children is to be with their parents is accepted, but that is not the determinative issue. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Home Office to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. The difficulty for the appellant is one that has run through the case from start to finish, namely the lack of evidence to prove what is being alleged.

32.               There was nothing from an Independent Social Worker or any other source to support the contention that the best interests of the UK based child required the appellant to be admitted to the UK and that any refusal to do so would be disproportionate to the impact upon the child.

33.               It is accepted that families are best kept together and there is at this stage an application pending for the younger child to be recognised as a British citizen. That is, however, not the position at the date of the hearing, and although Ms Hussain submitted that the child being granted citizenship was inevitable that is not necessarily the case; especially as it appears that the Passport Office require an interview. If the younger child is recognised as a British citizen that may be a material change in circumstances that warrants an application in the future.

34.               When considering the proportionality of any interference in a protected right, in this case the family life relied upon by the appellant, it is necessary to consider the provisions of section 117 of the Nationality, Immigration Asylum Act. In Rhuppiah [2016] EWCA Civ 803 it was held that if the Claimant had not been able to speak English, that would have been a negative factor under section 117B(2). That was accepted by the Supreme Court in Rhuppiah [2018] UKSC 58.

35.               In this appeal there is insufficient evidence to establish that the appellant could not take reasonable steps to ensure she was able to comply with the requirements of the Rules. This is a material factor.

36.               I do not find the medical evidence establishes exceptional circumstances sufficient to outweigh the public interest in this case, either individually or cumulatively. As noted above, there is no firm clinical diagnosis or an explanation of how such a diagnosis was reached by reference to accepted diagnostic criteria. There was no evidence that the appellant's circumstances are such that the child in Angola is not being well cared for.

37.               British citizenship of the child in the United Kingdom is not a trump card. There is adequate evidence to show a disproportionate effect of the ECO's decision. The English language requirement has been recognised as being an important element of ability to integrate into the United Kingdom.

38.               It has not been shown the best interests of any child are the determinative issue.

39.               Having undertaken the necessary balancing exercise, whilst recognising the appellant wishes to be able to join her husband and daughter in the United Kingdom and they her, the appellant has failed to establish to the required standard applicable in an appeal of this nature that the balance is tipped in her favour. I make a specific findings that the respondent has discharged the burden upon her to the required standard to show that the determinative factor which requires greater weight being given to it than the points relied upon by the appellant is the public interest and that the decision is therefore proportionate.

40.               The solution for the appellant may lie in the future, either by her demonstrating an ability to satisfy the English language requirement by taking and passing the required test or as a result of a qualifying material change in the family circumstances.

 

Decision

 

41.               I dismiss the appeal.

 

Anonymity.

 

42.               The First-tier Tribunal made no order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

 

I make no order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

Signed.......................................................

Upper Tribunal Judge Hanson

Dated 25 August 2021

 

 


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