OR v The Secretary of State for the Home Department [2011] UKUT 166 (IAC)

IAC-AH-SP-V1[2011] UKUT 00166 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 5 October 2010
THE IMMIGRATION ACTS
Before
THE PRESIDENT – MR JUSTICE BLAKEUPPER TRIBUNAL JUDGE MOULDEN
Between
OrAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentMr M M Hossain, a legal representative from Hossain Law Associates for AppellantMr C Avery, a Senior Home Office Presenting Officer for Respondent1. The version of the rules in force on 6 February 2010 contained no general requirement that a student be able to follow the course for which he had been admitted.2. The burden of proof as to change of circumstances since an entry clearance was granted lies on the respondent, and it is difficult to see that it can be discharged without some evidence of what the original circumstances were.DETERMINATION AND REASONS
[17]It was open to the Immigration Officer to question the appellant on arrival. Had there been such a change of circumstances since the visa was issued which had removed the basis of the applicant’s claim to admission then it would have been open to the Immigration Officer to refuse him leave to enter and cancel his visa. This was not such a case.18. It may be that the absence of an appropriate English language test was a lacuna in the points-based system at the time of the appellant’s application. The subsequent changes in the Immigration Rules taking effect from 23 July 2010 which now require an applicant to demonstrate knowledge of English equivalent to level B1 of the Council of Europe’s Common European Framework for Language Learning indicate that this is likely to have been thought to be the case.19. Having found that the judge erred in law, we substitute our determination allowing the appellant’s appeal under the Immigration Rules. Signed Upper Tribunal Judge Moulden

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