In the case of Gurdeep Kaur v Secretary of State for the Home Department [2023] EWCA Civ 1353 the appellant challenged the cancellation of her leave to remain in the UK due to alleged fraudulent procurement of an English Language test certificate (TOEIC). The case, heard in June 2022 by Upper Tribunal Judge (UTJ) Gleeson, raised concerns over the compatibility of the decision with the appellant’s rights under Article 8 of the European Convention on Human Rights (ECHR).
The appellant, a citizen of India, faced allegations of using a fraudulent TOEIC certificate during her application for Leave to Remain. Despite the deception being proven, Mr Raza argued that the UK NARIC letter could have satisfied the English language requirement, reducing the potency of the deception allegation.
The appeal was successful on the grounds that the UTJ erred in her approach to the appellant’s Article 8 claim outside the rules. The UTJ’s failure to conduct a proper proportionality assessment, overlooking relevant factors and making a material error regarding the appellant’s spouse’s citizenship, led to the decision to allow the appeal and remit the case for rehearing.
The decision in Gurdeep Kaur v Secretary of State for the Home Department represents a significant precedent. It highlights the potential impact of procedural oversights on the outcomes of immigration appeals. This case emphasises the necessity for immigration solicitors to conduct thorough proportionality assessments, especially in Article 8 claims, to safeguard the rights of their clients.
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