Sumi v Entry Clearance Officer

Unless expressly displaced by transitional provisions, an entry-clearance application is decided under the Immigration Rules in force when the decision is made. A requirement introduced after application but before decision may therefore apply. Under paragraph 281, read with paragraph A281 and Appendix O, an English-language certificate must come from a provider currently approved at the decision date. Approval when the test was taken or the certificate issued is insufficient if approval has since been withdrawn. Current approval also supports reliable standards and certificate verification. The appeal was dismissed.

The appellant made a fresh application for entry clearance in June 2012 to join her spouse in the United Kingdom. She relied on an English-language certificate issued by English Management Direct when that provider was approved, although it had been removed from the Secretary of State’s list before the fresh application and decision.

The First-tier Tribunal allowed the appeal by considering certificates obtained after the Entry Clearance Officer’s decision. The Upper Tribunal set aside that determination, held that the later certificates could not be considered, and dismissed the appeal because the original certificate was not from an approved provider at the decision date. The central issues before the Court of Appeal were whether paragraph A281 applied to the earlier application and when the provider’s approval had to exist.

Appeal dismissed. Lord Justice Richards gave the judgment, with which Lady Justice Gloster and Mr Justice Baker agreed.

1. The default rule, affirmed by the House of Lords in Odelola v Secretary of State Home Department [2009] UKHL 25, [2009] 1 WLR 1230, is that an entry-clearance application is decided under the Immigration Rules in force when the decision is made. Requirements may change between application and decision. That possibility does not displace the default rule. Express transitional provisions would be needed to do so.
2. HC565 provided that changes in paragraphs 1–222 took effect on 6 September 2012. Paragraph 85, which introduced paragraph A281, fell within that provision. Paragraph A281 was therefore in force when the application was decided on 27 September 2012, and contained no qualification protecting applications made earlier.
3. Paragraph 281, read with paragraph A281, required a certificate from a provider currently approved and listed in Appendix O. It did not permit reliance on a provider approved when the test was taken but no longer approved at the decision date. The construction was supported by the need for current standards and effective verification. Approval might be withdrawn because of inadequate standards, fraud, error or changed criteria, and verification might be impossible where a provider would not co-operate, had not retained records or had ceased to exist.
4. The Upper Tribunal was correct to reject certificates obtained after the Entry Clearance Officer’s decision and to hold the English Management Direct certificate insufficient. The contrary approach in Mahmood v Entry Clearance Officer, an unreported Upper Tribunal decision promulgated on 23 January 2014, was erroneous. The appeal was dismissed.

1. Court of Appeal (Civil Division) [2015] EWCA Civ 1564 dismissed the appeal.
2. Upper Tribunal set aside the First-tier Tribunal’s determination for error of law, rejected the later certificates, remade the decision and dismissed the appeal against refusal of entry clearance.
3. First-tier Tribunal had allowed the appeal by relying on English-language certificates obtained after the Entry Clearance Officer’s decision.