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KP (India) (appellant) v The Secretary of State for the Home Department (respondent)

Wednesday 15th December 2021

Second appeal. National of India. Refusal of application of Leave To Remain outside the Rules as a spouse of a settled person which was varied to an application on private and family life grounds under the 10 year route. The application was refused as her partner was not a settled person or a refugee and because she lives in a family unit. It was also refused on suitability grounds because she had made false representations in obtaining a previous variation of leave by relying on a fraudulently obtained TOIEC certificate. There were no exceptional circumstances.

A previous application had been made and the FTT had then found that the applicant was innocent. When the applicant made the current application it was again refused on the basis of the same TOIEC fraud.

The FTT allowed the appeal relying on the findings of the first FTT.  The applicant was innocent and the SSHD had not discharged the burden of proof in relation to the validity of the TOIEC test certificate.

The UT found that the FTT had erred in relation to suitability and allowed the SSHD’s appeal remitting the matter to the FTT.

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