Secretary of State for the Home Department v Betim Onuzi
[2024] UKUT 144 (IAC)
Gurdeep Kaur v Secretary of State for the Home Department
17 November 2023
[2023] EWCA Civ 1353
Court of Appeal
A woman's appeal to stay in the UK was rejected because she used a fake English test. The Court of Appeal said the judge who heard the case didn't properly consider all the facts, like her long marriage to a British citizen. The case will be heard again.
Key Facts
- •Gurdeep Kaur, an Indian citizen, had her leave to remain in the UK cancelled due to a fraudulent English language test certificate used in her spouse visa application.
- •Her husband, Harjinder Singh, is a British citizen.
- •The Upper Tribunal Judge (UTJ) dismissed Kaur's appeal, finding the deception proved and the cancellation compatible with Article 8 ECHR.
- •The appeal to the Court of Appeal focused solely on whether the UTJ erred in her approach to Kaur's Article 8 claim outside the immigration rules.
- •Kaur argued that the fraudulent certificate was not necessary as she had a UK NARIC letter confirming her English proficiency.
- •The UTJ's assessment of the Article 8 claim was brief and lacked a detailed proportionality assessment.
- •The UTJ incorrectly stated that Harjinder Singh held Indian citizenship.
Legal Principles
Proportionality assessment under Article 8 ECHR outside the Immigration Rules requires consideration of all relevant factors and a balancing exercise weighing them against the public interest.
Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b/ Family Life (as a Partner or Parent) and Private Life: 10-Year Routes (August 2015)
National authorities have a margin of appreciation in proportionality assessments, but it is not unlimited.
R (Agyarko) v SSHD [2017] UKSC 11, GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630
On appeal, the court/tribunal should carry out the proportionality assessment based on the facts at the time of its decision.
Section 85 of the Nationality, Immigration and Asylum Act 2002
Outcomes
The Court of Appeal allowed the appeal and remitted the case to the Upper Tribunal for a rehearing.
The UTJ failed to conduct a proper proportionality assessment of the Article 8 claim, omitting relevant factors and making a material error regarding Harjinder Singh's citizenship. The assessment was deemed insufficient and flawed.
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