Tribunal decisions

The decision

Asylum and Immigration Tribunal

NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031

THE IMMIGRATION ACTS

Heard at Field House (AIT Procession House)

0n 3-5 June 2009

Before

SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE P R LANE
senior IMMIGRATION JUDGE pinkerton

Between

NA
ST
MR

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr I Macdonald QC, instructed by Ellis Taylor LLP
For the Respondent: Mr G Clarke, instructed by the Treasury Solicitor

Cambridge College of Learning (CCOL) never ran a Postgraduate Diploma in Business Management course or a Postgraduate Diploma in IT course. Accordingly for a person applying for leave to remain under the Tier 1 (Post-Study Work) scheme to rely on a certificate of an award of such a diploma following a course will amount to a false representation and so will fall foul of para 322(1A) of the Statement of Changes in Immigration Rules HC 395. Such a person will also be unable to meet the requirements of para 245Z because he or she could never have undertaken such a course.

DETERMINATION AND REASONS

1. The appeals before us concern decisions refusing applications made in the second half of 2008 by three students under the new Tier 1 (Post-Study Work) scheme on the basis of having obtained a Postgraduate Diploma in Business Management or in IT (hereafter “PgDip BM” or “PgDip IT”) from the Cambridge College of Learning (hereafter “CCOL”). Since certain facts about this college are not in dispute, we can best set the scene by explaining that, prior to its closure in early December 2008, CCOL operated from premises at 151-153 Curtain Rd, London EC2A 3QL. It appears to have opened in May 2001 and to have been first included in the Department for Education and Science’s (DfES’s) Register of Education and Training Providers in January 2005. (This Register, which later became the Department for Innovation, Universities and Science’s (DIUS’s) Register, closed as from 31 March 2009 and has been replaced by the UKBA Register of Sponsors.) In its early days the main business of the college was running English courses but by the end of 2007 it also ran a variety of courses in business, IT and tourism. Neither party was able to furnish definitive details about the history of the college, but it appears that its first Principal and owner was Mr Adil Chaudry and its second Principal and co-owner was Mr Zafar Mustafa. In mid-2008 ownership changed and Mr Said Ullah then became Principal to be followed shortly after, in September 2008, by Mr Zahid Ali Noman. The Acting Principal, Mr Kashif Hussain, told officers who visited the college on 2 December 2008 that the owners were Mr Nisar Chaudry and Mr Wasim Yousafi. A college website entry written in Spring/early Summer 2008 by Zafar Mustafa when Principal stated that two new partners had joined the management: Mr Islam Ali and Mr Zaman Gondal.

2. Sometime in the summer of 2008 the United Kingdom Border Agency (UKBA) began to be concerned about the large number of applications it was receiving for the new Tier I (Post-Study Work) scheme (which had begun on 30 June 2008) from students enclosing PgDips in either BM or IT awarded by the CCOL. By 6 October 2008 spreadsheets relating to 204 CCOL-related applications had been compiled revealing a number of anomalies. Monitoring continued over the next few weeks. A further reason for concern was that it had been reported that a significant number of applications put forward academic transcripts with identical percentage marks across all exams or modules. Over 2,500 CCOL-related applications falling into the PgDip BM or PgDip IT categories were received between 22 October 2008 and 22 December 2008. In addition, a check on the Home Office records disclosed that there were 181 students with current leave to remain within the student category to attend CCOL and a further 136 had valid entry clearance. On 31 October 2008 all CCOL-related applications were put on hold. The mounting causes for concern led to Operation Asterion, a UKBA led enforcement visit paid on 2 December 2008 by the Area 3 Criminal Investigations Team accompanied by officers from the London and South East Intelligence Unit (RIU). That visit compounded UKBA’s concerns about the college and led to them taking steps to ensure that the college was removed from the DIUS register on 4 December 2008. It appears that the college then closed on 8 December 2008 and it has never re-opened. On 22 December 2008 UKBA issued instructions to caseworkers to refuse all immigration applications based on CCOL studies or awards.

3. Given this background it is inevitable that we must decide whether or not the respondent’s concerns about CCOL are justified, but we would emphasise at the outset that the respondent’s position on this particular college is not that it was a bogus college per se. Indeed he accepts that there were no real causes for concern until the second half of 2008 and that, even after that date, the college continued to run a range of bona fide courses in a legitimate way. The respondent’s concerns are confined to claims made about the college’s history of running Postgraduate diploma courses and to the claims made by the three appellants in these appeals (in common with a large number of other appellants, we are told) that CCOL ran PgDips in BM or IT.

4. The first appellant, a citizen of Pakistan, came to the UK on 3 September 2006 as a student and was granted further leave to remain until 11 December 2007 and again until 31 December 2008. On 24 November 2008 she applied for leave to remain under the Tier 1 (Post-Study Work) Scheme. She enclosed with her application a certificate from the CCOL signed by “the Director”, Saif Ullah, and saying she had been awarded a “[PgDip BM] having successfully completed an approved course of study and having satisfied the board of examiners on September 2008”. With it there was a letter from the college dated 9 September 2008 headed “To Whom It May Concern” signed (illegibly) under the title, “Programme Leader”. It stated that she had “successfully completed an approved programme of study in (Postgraduate) level 7 Business Management on a full-time programme at one of the DIUS Listed Body [sic] i.e. Cambridge College of Learning”. It gave further details of the date she had commenced her course and the date she had completed it. It also stated “We would be grateful if you could issue the student with PSW-Post Study Work Visa”. A separate document, headed “Transcript of Academic Record” bearing the same date and also signed, illegibly, below the title, “Programme Leader”, stated that her course title was PgDip in BM at an NQF (Revised) Level 7 level of qualification. It gave the same details for start and finish date and the marks she had obtained for various subjects. All three documents bore the same 12-digit student reference number. On 21 January 2009 the respondent refused the first appellant’s application stating that:

“I am satisfied that all the documents submitted from the [CCOL] were false, because [CCOL] has never offered a legitimate Post Graduate Qualification in Business Management …. As false documents have been submitted in relation to your application, it is refused under paragraph 322(1A) of the Immigration Rules”.

The letter went on to state that in addition the appellant did not meet the requirements of para 245Z(c) and 245Z(d) of the Immigration Rules because she had been awarded no points for “Attributes” under Appendix A or for “English language” under Appendix B. The letter further stated that the respondent was also satisfied that the appellant had used deception in her application and that:

“Although the decision would be one for an entry clearance officer to make in the future, this means that it is likely that any future applications for entry clearance or leave to enter the UK will be refused under para 320(7B) of the Immigration Rules (unless it would breach your rights under the Human Rights Act 1998 or the Refugee Convention) for the following period starting on the date on which you leave the UK following this refusal:
-One year if you leave voluntarily, without our having to pay or contribute to the costs of your departure;
-Five years if you leave voluntarily at the Government’s expense;
-Ten years if we remove or deport you…”

5. The second appellant, a citizen of Mauritius, came to the UK as a student on 16 September 2005 and received several grants of further leave to remain in the same capacity, the last expiring on 30 November 2008. On 24 October 2008 she applied for leave to remain under the Tier 1 (Post-Study Work) scheme. Accompanying her application were three documents in very similar form to those of the first appellant but with different details of when she was awarded her certificate (August 2008), when she had commenced the course, when she had completed it and her marks for different subjects. All three documents also showed a 12 digit student reference number. The respondent decided on 20 January 2009 to refuse that application. The respondent’s reasons were in near-identical terms to those given in the first appellant’s refusal.

6. The third appellant is a citizen of Pakistan who has been in the UK as a student since 1 September 2001. His last grant of further leave to remain was until 30 November 2008. On 4 November 2008 he applied under the Tier 1 (Post-Study Work) scheme for further leave to remain. Together with his application he submitted three documents which had the same standard wording as in the case of the first two appellants except that the CCOL certificate was a Certificate of Award of a PgDip IT dated August 2008 (it too was signed by Saif Ullah under the title, “Director”) and his “To Whom It May Concern” letter from the college dated 20 August 2008 stated that he had commenced his PgDip in IT at a Level 7 course in IT on 11 November 2007 and had completed it on 15 August 2008. The decision of the respondent to refuse his application was dated 23 January 2009. All three of his documents showed a 12 digit student reference number for him. The reasons for refusal were in virtually the same terms as those given for the first two appellants, except for the fact that they referred to a PgDip IT (rather than a PgDip BM), and stated that under para 245Z no points were awarded under Appendix C, as well as under Appendices A and B. No points were awarded under Appendix C because:

“The Barclays Bank statements provided from 13 August to 8 October 2008 does not establish that you have been in possession of these savings for the specified three month period immediately before your application.”

Procedural History

7. On 13 March 2009 the Tribunal gave directions and issued notices for a Case Management Review (CMR) hearing on 24 April 2009 in relation to three separate appeals of appellants for whom the appellants’ representatives also act. One of the matters required to be canvassed at the CMR hearing was the issue of suitable lead cases. On 2 April 2009 the appeals that are now before us were identified as suitable lead cases and were set down for hearing on 3 June 2009. A fourth appeal (where reconsideration had been ordered) was subsequently added to the list of lead cases but on 1 May 2009 the Tribunal directed that it was no longer to be joined with the three appeals before us. The Tribunal also directed the parties to address the question as to whether the burden of proof (on the respondent) was the balance of probabilities or the criminal standard, in the light of Re: B (Children) [2008] UKHL 35. On 11 May 2009 there was a further CMR hearing and matters covered in a memorandum to the parties arising therefrom included a note that the respondent had agreed to set out in writing her negative response to a request by Counsel for the appellants for disclosure of the reason why the decision was made by the police authorities and the CPS not to pursue criminal proceedings against certain persons working at CCOL. The memorandum also recorded that the parties agreed to cover in their written submissions the issue of the burden and standard of proof in the present type of appeals (where para 322(1A) was being relied on) and the issue of what weight, assuming para 322(1A) was found not to have been proved, might nevertheless be given to the evidence relating to whether CCOL was [in whole or in part] a bogus college when deciding whether the appellants could show they met the substantive requirements of para 245Z and Appendix A.

8. On 27 May 2009, in reply to a letter from the appellants’ representatives requesting an adjournment in order for them to have more time to deal with a large volume of materials, the Tribunal wrote refusing that application, stating that sufficient time was available for them to prepare.

9. Other procedural matters of note are dealt with in the body of this determination.

10. In accordance with AIT Practice Direction 2.4 these appeals were allocated by a Deputy President of the Tribunal to a panel comprising three legally qualified members.

The Witnesses

Mr Julian Fletcher

11. The respondent called six witnesses, the first being Mr Julian Fletcher. Mr Fletcher produced three witness statements. In these he described his dealings when a Chief Immigration Officer with various Tier 1 (Post-Study Work) applications in the course of his duties at Eaton House, UKBA. He described his role in the 2 December 2008 visit by officers attached to the UKBA and his interview with Mr Kashif Hussain. He described Mr Hussain showing him an Excel spreadsheet on the computer entitled “ID Cards list”. Mr Hussain told him this was a list of all CCOL students that had been issued with ID cards, which was the vast majority of them. Mr Fletcher described checking the names on the sample of 42 persons who had applied for Tier 1 Post-Study Work based on CCOL certificates against this spreadsheet. Not one matched. He gave details of various e-mails and other items found on the same desktop. He recorded finding a blank CCOL certificate and letterhead on the desk in the Admissions room and others in the cupboard in that room. He detailed the various items that were exhibited.

12. In his oral evidence Mr Fletcher explained that he had been part of the joint police/Home Office team of officers involved in an investigation into CCOL, code-named “Operation Asterion”. Although at the time he was a Chief Immigration Officer, his role on the day of the visit to CCOL on 2 December 2008 was as part of the joint criminal investigation team. When he arrived there, there were no students on the premises, although some arrived during the day. He spoke to a Mr Kashif Hussain, who introduced himself as the Acting Principal. Mr Hussain demonstrated to him on the computer in the Principal’s Office how to access student records. The print out contained at Bundle B Tab 4 pages 72-93 of the respondent’s bundle showed a four digit number for each of the 1,555 names shown. None showed a 12-digit number of the type the three appellants claimed they had. He had checked the names of the three appellants against a sample containing the names of 42 persons who had made Post-Study Work applications based on CCOL certificates; none of them matched this print-out.

13. In reply to questions from Mr Macdonald, Mr Fletcher agreed that what he had been able to see on the day in relation to student records depended on what Mr Hussain, who had only been Acting Principal for a short time, had been able and willing to show him. Although he could not rule out the possibility that some data on students was held by the owners or their confederates offsite, he thought it highly unlikely. The officers attending had seized vast quantities of documents and materials. Along with DC Arthurs he had been involved in the arrest and questioning of Mr Hussain. According to Home Office records Mr Hussain had leave to remain as a student. In his bag officers had found a Postgraduate Diploma awarded by CCOL dated September 2008. He agreed that it had struck him as extraordinary that the man who had described himself as Acting Principal of CCOL should have a certificate showing he himself had got a degree from there two months before. Prior to the 2 December visit the joint investigating team had the names of two “key nominals”. One of these two was Mr Saif Ullah. The other, whom he did not wish to name, was someone who had been either an owner or former Principal of the college. What he had seen at the college confirmed his view that those claiming to have studied for a Pg Dip in BM or IT at CCOL were bogus students, but he agreed that everything else going on at the college appeared to him to be legitimate. That meant, he accepted, that the college was one which had genuine as well as bogus students. He had not been involved in any follow-up investigations into the owners or former Principals or other persons.

14. He was aware that one of the police investigating officers had spoken to a Mr Zahid Noman on the telephone. Asked whether some items of e-mail correspondence from Mr Saif Ullah to the Home Office struck him as rather illiterate, he said that such sloppiness in e-mails was not unusual.

15. In re-examination he confirmed that despite the seizure of a large quantity of materials found in the college, the investigating team had not found any computer file containing student records apart from the student ID card log. In answer to further questions raised by the Tribunal, he said he was aware that shortly after the raid on 2 December a number of students had attended at a police station by appointment. He had viewed the fact that applications by students who had applied to UKBA for Post-Study Work on the basis of CCOL certificates showed different types of reference numbers as in itself suspicious.

Mr Jon Stewart

16. In a witness statement dated 7 January 2009 Mr Stewart said that at the time when he made his statement he was a Higher Executive Officer with UKBA. Part of his duties involved providing UKBA caseworkers with information relating to criminal investigations where this was relevant to applications for leave to remain in the UK. Under the Immigration Rules as they stood in 2008 colleges which were listed bodies could issue their own PgDips. As a result such qualifications were unregulated and could only be verified by contacting the college issuing the certificate. Qualifications from CCOL had given cause for concern to caseworkers by dint of the number and quality of the certificates provided as supporting evidence for Tier 1 Post Study Work applications. Despite CCOL generally verifying the PgDips as genuine, concerns remained that they may have been fraudulently produced and obtained without the applicants having studied for them. He then noted that on 31 October 2008 an instruction was issued to Post-Study Work Tier 1 caseworkers to put on hold applications supported by evidence from a number of colleges, including CCOL and went on to mention the intelligence-led enforcement visit to the college on 2 December 2008 and the subsequent instruction to caseworkers to refuse applications supported by CCOL PgDip qualifications on the basis that false documents were submitted. The statement concluded with the comment that “There is no evidence to suggest that other qualifications taught by CCOL are false”.

17. At the hearing Mr Stewart confirmed he had not been a caseworker dealing with Post-Study Work. By January 2009 the UKBA had received 2,542 applications for Post-Study Work from students claiming they had CCOL PgDips in either BM Management or IT. That was an unusually high number. The CCOL cases had brought to light a loophole in that at the relevant time a college that was registered with the DIUS could award its own postgraduate degrees. In reply to cross-examination by Mr Macdonald, Mr Stewart agreed that although the Post-Study Work scheme was a replacement for the International Graduate Scheme (IGS), those eligible were not confined, as was the position under the IGS scheme, to persons with a university degree in a limited number of subjects. Unlike the IGS scheme, the new Rules were not well-regulated. He agreed that under the Post-Study Work scheme at the relevant time it looked as if an unscrupulous group of fraudsters had been able to hijack a college which had been running genuine courses. In reply to questions raised by the Tribunal, Mr Stewart said the documentation submitted to UKBA by the three appellants appeared to be in the normal form except he would not expect to see the college itself asking in the covering “To Whom It May Concern” letter that the applicants be granted Post-Study Work permission.

Miss Gillian Jackson

18. In her statements dated 27 May 2008 and 2 June 2009 Miss Jackson said that she was employed as a grade 6 lawyer within the Treasury Solicitors Office. She stated in her 2 June 2009 statement that Dr Mohammed Resaul Karim had informed her that he was employed at CCOL from January 2007 until mid-November 2008 as an IT teacher for specific IT modules as and when required by CCOL. At CCOL he taught various Association of Computer Professionals (ACP) and University of Sunderland BSc modules. He had confirmed to her that a document seized from CCOL premises on 2 December 2008 was a copy of his CV. He told her that he had never taught any PgDip courses in IT, nor did he teach on any of the modules said to be studied by Mr Raja, the third appellant. As far as he knew CCOL did not offer a PgDip in IT and he did not know Mr Raja. In her second statement Miss Jackson said that in an e-mail dated 30 May 2009 Dr Karim said he was unwilling to be a witness in the present appeals but confirmed that the information given to Miss Jackson on 22 May 2009 was true. In her oral evidence, she confirmed the truth of her two statements. In reply to questions from Mr Macdonald she agreed that Dr Karim’s CV read like that of a NASA scientist, but she had no basis to think it was untrue. She did not know if any checks had been made on Dr Karim’s immigration status. In re-examination she said she had no reason to go further than the face of the CV document.

Mr Muhammad Faisal Munir Malik

19. In his witness statement of 2 June 2009 Mr Malik said he had been employed full time at CCOL as an IT trainer. His responsibilities included delivering classes to students, solving the internet, network and computer problems encountered by teachers and staff and IT support of the student body. All of his teaching responsibilities were in the IT Department. CCOL offered ACP Certificate and Diploma courses in IT; BSc courses were accredited by the University of Sunderland. CCOL attempted to offer the British Computer Society (BCS) courses as well, but those were discontinued as no students enrolled. In the IT department there were approx. 20 students studying an ACP course and approx. 15-20 studying the BSc course. For the ACP-accredited courses he would deliver the modules as created by ACP who would provide and mark the final examinations. He evaluated the students’ projects although they were finally checked by ACP if required. There were usually between 10-12 students in his classes and the majority of the teaching took place in a classroom setting, with the remainder in the IT lab. The classes ran on the ACP term system of three terms. He personally knew all of the IT teachers (and many of the students) and none of them was involved in teaching or studying a PgDip in IT. At no time did he see anyone offering a PgDip in IT nor did he hear of anyone studying such a course. It was not possible that an entire PgDip course could have been offered in his field without him being aware of it. His normal hours were Monday to Thursday. He described the layout of the college, class sizes, and different courses run. He said he was familiar with most of the staff except perhaps a few people brought in towards the end of 2008 to teach a single class a few hours a week or any teachers that only worked on Fridays. He said there were four or five teachers in the IT department and approx. 10-12 in the Business Department. He mentioned an odd incident that had happened in November 2008 when a man he believed to be Chinese approached him asking if he would verify his PgDip in BM, which he refused to do.

20. In his oral evidence Mr Malik confirmed that he knew Miss Ullah. She had run the Business Studies courses throughout 2008 except for a period of several weeks when she was away for a wedding. His job in the college was a dual one: to provide technical IT support and also to teach IT courses. Asked by Mr Macdonald whether he knew anything about a Postgraduate Diploma certificate found in Kashif Hussain’s bag made out to a certain Mr Malik, he said he had never seen this and the name on it was not his full name. It did not contain “Munir”. His date of birth was also different. The police had not asked him about this. He had never had a qualification from CCOL. It might be that someone else had been trying to use his name. The courses he was involved in teaching in the IT Department were all accredited courses. The college had attempted to run a BCS course, but this was discontinued due to lack of take-up by students. In his courses there were some twenty students doing ACP courses and fifteen to twenty doing a BSc course. He kept an attendance record, using a computer print off given to him by college administration. He ticked off the names of those who attended and handed them in to administration (to either the reception or Principal) at the end of each session. He had a file for each class. He had access to the college record of student IDs on the college computer, although he could not amend it. The college had a system for keeping computerised attendance records, but he had a problem with the software and relied on his own records. He kept his records in the college. He did not know if his records were still there. He had not been there on 2 December 2008, the day of the Operation Asterion visit, but had gone in on 5 December as he had been asked to do remedial work on a computer which took a couple of hours. Everything was upside down. He had not checked to see if his own files were still there. He confirmed that the details given in his statement concerning a Chinese man approaching him to verify an award certificate were true. In reply to questions from Mr Clarke, Mr Malik said he did not know Mr Raja, the third appellant. He would have known if a Postgraduate class in IT was running at the time Mr Raja claims it was. Timetables were placed on a notice board, sometimes on headed notepaper, sometimes not. In his experience timetables referred to “terms”, not “semesters”. He knew Dr Karim and had worked together with him.

21. In answer to questions from Mr Macdonald and the Tribunal, Mr Malik explained that sometimes if the Principal asked him he would prepare timetables. He kept exam-related materials in a separate file. He had never heard of the college having a “board of examiners”. At the beginning of his courses he would give the students as handouts an outline of the course, a scheme of work, sometimes on a CCOL template, sometimes not. They would normally have with them a class enrolment form and/or a student ID. He had seen the student ID card record log. He recognised some of the student names on it. He normally put any student ID details on his attendance sheets, to help the college administration enter them. If a student had been suspended or expelled from the college, administration would inform the teaching staff. He agreed that the college log of student’s IDs appeared to be an historical record and did not tell the reader who were current students. He believed there may have been a separate file for all current students held by the administration. He would sometimes have new students who only had a letter of enrolment. Normally they would later get an ID card, but sometimes (rarely) he did not know why, this did not happen. Student reference numbers with twelve digits were unfamiliar to him, the normal ones had four digits.

22. In re-examination Mr Malik said it was rare for a student not to have an ID card. He had seen records for overseas students, although he could not say if they had different numbers.

Miss Saamia Ullah

23. Miss Ullah had given two statements, one on 4 December 2008, another on 3 June 2009. In her 4 December statement she described her role as the head of department for business and management within CCOL. In performance of this role she managed the entire Association of Business Executives (ABE) department, as well as being course instructor on this course from July 2007. In July 2008 she had gone abroad for a wedding for around three weeks. She described the various persons who had been college Principals and what she knew of their roles. She stated that a couple of months before the events of early December there were rumours among the students that Postgraduate diplomas from CCOL were being sold outside the campus; there were also rumours that the directors would enter the college after hours. She stated that “I am certain that no courses were and have been running for postgraduate diplomas of any type at [CCOL], nor are we an organisation that can award such a qualification”. In her section all exams had to be marked by the awarding body. In her second witness statement Miss Ullah said that she had been employed at CCOL, originally on a part-time basis, since January 2006, becoming Head of Business Management from January 2007 until the college closed. Her responsibilities included overall responsibility for the day to day running of the Business Department and the ABE courses offered within her department. She had an overview of the attendance in all of the business classes as lecturers would report their attendance result to her. A copy of the database was kept in the Principal’s office and another copy for her records. She was also responsible for the hiring of lecturers for the department, although she was not involved in the setting up or teaching of the ILM programme which started in mid-2008. She worked 9.30-5 Wednesday, Thursday and Friday. In her department there were approximately 30-40 students per term, which included all the ABE course students. She was aware of ILM courses which started in mid-2008 after the arrival of Mr Islam Ali. The latter had purchased the college from Mr Mustafa. Mr Ali asked her to be involved in the management of this programme but as she already had too many responsibilities she declined. He then managed the hiring and the accreditation work himself. During her time at the college she did not see any PgDip course taught nor any PgDip students either in class rooms or on any attendance records. She had not heard of any curriculum for such a course, nor had she ever met any staff members who were teaching a PgDip in BM. She was confident in saying that the PgDip in BM did not exist. It was not possible that an entire PgDip course could have been offered in her field without her being aware of it. Accreditation from ILM for CCOL to run its Postgraduate diploma course was for a very short time. She mentioned that towards the end of 2008 she noticed a number of people who would begin to arrive at reception after 5 pm. They would always ask for Mr Kashif. They would arrive in groups of 5 or 10 and would group together in the student common room on the ground floor. She recalled overhearing a conversation when one male was speaking on his mobile telephone in Urdu. He told the person to whom he was speaking that he was not willing to pay £2,500 and he would ask if he could pay less. She gave in her notice on 5 November because she had become deeply suspicious about what was happening at the school. Some students told her that CCOL sold fake diplomas around London and had many agents. She was serving out her notice period at the time of the visit from immigration officers and police on 2 December 2008.

24. We next summarise the oral evidence of Miss Ullah, although she did not give evidence until after Miss Akbar. Shortly before the hearing, Miss Ullah had informed the respondent that she had decided not to give evidence voluntarily. When told of this on the morning of the hearing Mr Macdonald made a request that we issue her with a witness summons under Rule 50 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. Mr Clarke said he would not object to such a request. We decided to issue a summons which was duly served by the appellant’s representatives although, with the agreement of Mr Macdonald, Mr Clarke called her as a witness for the respondent.

25. Miss Ullah adopted her two witness statements. The first she explained had been made to the police in early December 2008, one of whom had typed it out as she was interviewed and then printed it out at the end. From January 2007 until December 2008, when the college closed, she was head of the Business Studies Department of CCOL. She had responsibility for the ABE courses as well as for various student extracurricular activities. She kept, in computer and manual form, records relating to names, attendance, performance and results. In answer to questions from Mr Macdonald, she said she had shown her records to the police when she had gone into the college on 4 December 2008 but they had said they were not interested because her courses were not Postgraduate Diploma ones. She shared an office with the head of IT, Mr Malik. Their office was normally locked. All the computers at the college were linked up to a secure network; but people could only access it by having a username and password. Apart from computers being taken out of their sockets, her office did not appear to have had anything removed during the Operation Asterion visit. As far as she was concerned, all the teaching she knew of that was going on at CCOL was bona fide, but she was aware through the grapevine that some things were going wrong from the second half of 2008 onwards. Lots of non-students had been seen visiting Mr Kashif Hussain and Mr Zahid Noman in the Principal’s office after normal (9-5) hours.

26. It had been pointed out to her, she said, that her name was not on the current college website list of college staff. However, she was sure her name had been on it in early December 2008, as she distinctly recalled showing one of the police officers who interviewed her that her name was there. She did not know who had taken her name off. The college website was updated periodically, she thought by a website engineer who came in to do that. The main changes affecting the college happened in the late summer. Her understanding was that in the first half of 2008 the owner of the college, Mr Zafar Mustapha, who ran the college with his wife, had been obliged to sell out to new owners, Mr Islam and one other. Soon after Mr Islam stopped coming and a Mr Saif Ullah announced that he was the new Principal. Then a Mr Noman was hired to be Principal. It was a big disappointment to her and other staff when Mr Zafar went. After he left standards went down. Mr Noman did not appear to be bothered about attending meetings with her course accreditors. The courses she taught on were all accredited. To her knowledge there were no Level 7 courses taught by the college although she was aware Mr Islam had initiated an ILM course, which was Level 7, but for some reason it had been cancelled.

27. Miss Ullah said that she had nothing to do with college communications with the Home Office: reception and the college administration did that. She had not been aware that the college could award its own diplomas. Her student award certificates came by post from ABE. She had just secured accreditation for her courses for 2009 when the college closed.

28. In reply to questions from the Tribunal Miss Ullah said she knew a Mr John Opoku; he had been hired to teach on her ABE courses, but he finished before 2008. She normally worked Wednesdays, Thursdays and Fridays. She did not know a Mr Saheed Khuman. Miss Ullah said that the college had a limited number of rooms. The largest classroom (numbered “15”) could fit 40 students. When students began her courses they got an ABE Welcome Pack, a book published by ABE and a course syllabus. She prepared them for external exams by various tests and quiz sessions.

29. The witnesses called by Mr Macdonald were the three appellants only.

Miss Nazia Akbar

30. In a witness statement dated 9 March 2009 Miss Akbar said she had arrived in the UK as a student in 2006 and during her period of valid leave (December 2007-December 2008) had obtained admission to CCOL and completed a PgDip in BM. On that basis she applied for further leave to remain under the Post-Study Work scheme, which was refused on 21 January 2009. She strenuously denied the respondent’s allegation that she had used deception; she said she had been an honest and hardworking student there. During her entire term of study there she had been provided with excellent tuition. She had joined CCOL because she had heard they were awarding diplomas that were recognised in the UK and had checked the internet to find that the college was accredited by a number of reputable bodies and was also on the DIUS list of UK recognised degree awarding bodies. They were also offering courses at competitively low prices. She had started her course at CCOL in January 2008. She produced various documents to demonstrate her attendance at CCOL “and that the lectures were given properly and professionally”. These included two assignments, an enrolment letter, a fee payment receipt, lecture handouts, handwritten lecture notes, extracts from the CCOL website, a CCOL promotional video and a prospectus. She did not know Miss Ullah or Mr Malik. She had been taught by Mr John Opoku, who was also assisted by Mulikat Omorola Ojulari.

31. Miss Akbar told the Tribunal that before coming to the UK she had obtained a Masters degree in IT from Punjab University and in the UK had obtained a Post Graduate Diploma in IT from Cecos London College of IT and Management. She had enrolled at CCOL in January 2008. She decided to do a Pg Dip BM course with CCOL so she could increase her knowledge of business. She did not know Miss Ullah or Mr Malik. The two college tutors who taught her were Mr John Opoku and Ms Mulikat Omorola Ojulari. She did exams at the end of each term, in January, then in May. She had to do two main pieces of course work, both being assignments. She had not heard of any bogus goings-on at the college.

32. To questions from Mr Clarke, Miss Akbar said that her lawyers had drafted her written statement; she told the facts to her lawyer. She had not had a student ID card. Her reference number was on her enrolment letter. At the end of the course she collected her certificate from reception. Asked about ILM-marked documents forming part of her assignment, she denied she had downloaded these herself from the ILM website. Her tutors had provided them to her. The second appellant, Miss Thirakaluthy, was not in her class; she did not know if more than one class was doing the same course as her. Her teachers had marked her two assignments. They did not put marks on them. Marks were put up on a notice board. As regards the materials in the bundle of documents she had submitted as comprising her course materials and notes, she could not comment on why some consisted of materials from various websites (Alabama, bized, IBM, Prenthall). She agreed that a number of pages of those she had submitted as her course materials were from a BTech course, which was a sub-degree course. She had not been given a syllabus or written course outline, just an oral introduction. The materials at pp. 72-139 of her bundle represented the complete course materials handed out to her. Her assignments, which were on the subject of British Telecom and Burger King respectively, were all her own work; she had received no feedback, nor had any mark been written on them. Marks were put on the notice board and then entered on her letter of enrolment. Her teachers had never given her past papers or practice exams; the class was examined on the course materials and handwritten lecture notes. The college had seven or eight classrooms, her class used several different ones. Numbers in her class were around 35, but sometimes they were fewer. She went to college three days a week. She had never met Miss Thirakaluthy. She denied that she had never attended a Postgraduate course at Cambridge College or that she had submitted false documents or used deception.

33. In re-examination she said her teachers did not use any powerpoints, just a white board. If some items in her course materials were sub-degree standard she did not know that. In answer to further questions from the Tribunal and Mr Macdonald, she replied that her teachers had never given feedback on her two assignments or spoken to her about them; her marks in them had been 67 per cent and 68 per cent respectively. She had never been given anything in writing about college “house style” for references; it had just been told to her orally. Her student reference number was a 12 digit number.

Miss Sanghinee Thirakaluthy

34. In a witness statement dated 9 March 2009 Miss Thirakaluthy said she had arrived in the UK as a student and whilst still having valid leave had obtained admission to CCOL and completed a PgDip in BM. It was on that basis that she had applied for further leave to remain in the UK under the Post-Study Work scheme, only to be refused on 20 January 2009. She had joined CCOL because they were awarding diplomas that were recognised in the UK and checks on the internet revealed the college was accredited by a number of reputable bodies and was also on the DIUS register. She began her course in January 2008. She strenuously denied the allegation by the respondent that she had used deception. Throughout her time in the UK she had been a genuine student making progress and attending regularly in all her courses. On her CCOL course a high –“excellent”, she went on to say - standard of education was provided. She had not kept many documents to show she attended on this course nor had she kept any receipts or other formal documentation to show her studies there, but she was able to attach various lecture handouts and hand written notes. She did not know Miss Ullah or Mr Malik. She had been taught by Mr John Opoku, who was also assisted by Ms Mulikat Ojulari.

35. Miss Thirakaluthy’s oral evidence was as follows. She had first come to the UK in September 2005 to do a course in Travel Management and had then gone back home to Mauritius, working with her sister in a beauty parlour business. She had then come back to the UK to do a Bachelor in Business Administration (BBA) course at an institution in Stratford, East London. She competed that in August 2007. This institution was not a listed body and she had heard from a friend about the IGS scheme and then that CCOL was offering a PgDip BM. She had joined CCOL in October 2007. She had not kept many of her course materials as she never thought her application would be refused. She reiterated that she did not know Miss Ullah or Mr Malik or that they taught at CCOL. Her main teachers were Mr John Opoku and Miss Ojulari. It had been very shocking to her to hear that CCOL was said to be involved in fraudulent goings on; UK colleges and universities were supposed to be the best in the world.

36. In reply to Mr Clarke she said she had studied eight subjects. Critical Theory was one of them. Asked why her course materials included promotional materials, instructional texts and items from various websites, she said these were what had been given to her. She agreed she had said in her written statement that the materials in the bundle submitted were “various lecture handouts”, whereas in fact some of the materials were ones she had downloaded herself. She agreed her materials included an e-mail dated long after the course had finished. She had been in a state of panic and had assembled all old CCOL course materials she could find. As original research she was expected to do for her course, she did internet research. He course had included a dissertation of 10,000 words. She had done hers on “Tourism in Mauritius”, although she had not kept a copy. She had it on her desktop, but her desktop had crashed. She had a laptop now. She did not have a copy any more. She had to do course work plus assignments in each subject. She agreed various handwritten notes in her bundle were not in her handwriting (including those at pp 114,-134, 189, 198-244, 276) and that on some the year shown on the dates entered had been changed from “07” to “08”. She agreed some of the material in her bundle was from her BBA course. She had not been given a syllabus or course outline except verbally. She thought the teachers were reliable. She attended lectures two and a half days a week, on Tuesdays, Wednesdays and sometimes on a Friday. She did eight exams. She had never got her exam papers back with marks. She had had no feedback; marks were just posted on the notice board. She denied that her course materials were just a ragbag of materials she had put together. She had attended a Pg Dip course at CCOL. She had sat and passed exams. She had not used deception.

37. In re-examination Miss Thirakaluthy said her written English was stronger than her spoken English. She had given away most of her course materials to friends. In her one-room flat her papers were scattered about; she had no desk. The course work she had done was in her own handwriting. She had tried to collate the CCOL materials strewn about, but she had been in a panic and accepted she had mixed up some materials from her BBA course. She had not changed the dates written on some handwritten lecture notes from “07” to “08”.

38. In reply to further questions from the Tribunal and Counsel, she confirmed she had never had a CCOL student ID card; they had asked her for a photo and given her a reference number. She kept her desktop computer in her flat on the floor. Her class consisted of around 25 students, dropping to fifteen by the time of exams. They used three different lecture rooms. She had chosen “Tourism in Mauritius” for her dissertation because Mr Opoku had said she could choose her own topic. Her assignments were 1,500 to 2,000 words in length. The pages in her course material showing dates in 2009 were from a course she had been helping her cousin with. She did not think the college had been “taking her for a ride”; they had been running the course perfectly.

Mr Muhammed Imran Yaseen Raja

39. In his witness statement dated 12 March 2009 Mr Raja stated that he had studied and regularly attended all his courses at CCOL from November 2007 until 30 November 2008. He was an honest and hardworking student there. A high and excellent standard of education and tuition was provided; lectures were given properly and professionally. He had heard CCOL were awarding diplomas and having checked the internet and found that they were accredited by a number of reputable organisations including BAC, ABE, ILM, ACP and a number of universities. Their diplomas were recognised by BAC and ACP and were on the DIUS list of UK recognised degree awarding bodies and were being offered at a competitively low price. He produced various documents including three relating to CCOL fee payments, a timetable, two assignments and some typed lecture notes. He did not know either Miss Ullah or Mr Malik. He was taught by Dr Karim Mohammed Resaul and his personal tutor was Mr Saif Ullah, the Principal. Extracts from the college website confirmed, he claimed, that diplomas in IT were offered. Mr Raja strenuously denied the respondent’s allegation that he had used deception in order to obtain leave to enter or remain in the UK.

40. In his oral evidence Mr Raja said he had come to the UK in 2001 and obtained a BSc Hons from Greenwich University, then a Masters in IT. He had then enrolled at the CCOL in its Pg Dip IT in November 2007, finishing in August 2008. He did not know Miss Ullah or Mr Malik. He had been taught by Dr Karim and Mr Saif Ullah. He did not know why Dr Karim has said in his statement that he did not know of him.

41. In answers to Mr Clarke, Mr Raja said he had undertaken a second Postgraduate course in IT because Greenwich was not a listed college and he had heard about the IGS scheme which provided an opportunity for post-study work. He had not been given a syllabus or course outline except verbally. He had four classes a week. He agreed that the CCOL website prospectus did not in fact mention a PgDip IT. He did eight subjects with two assignments for each. He had only produced two but could produce more. Asked about the assignments produced at pp. 31 and 41-44 of his bundle, he agreed it was word for word the same as an extract from an internet website, but his tutor had told him to search those sites. (When typing out the solutions, he added later, he had had to produce a CD to hand in with the handwritten assignment, but he had no copy of what was on this) He agreed that some of the items in his bundle of course materials were nothing to do with CCOL (e.g. those from the University of California, Berkeley, and the University of McGill). Dr Karim had given these items as handouts. He did not know why Dr Karim should have said in his statement that the college ran no Postgraduate Diploma courses. Some of the course materials were basic level. That was not satisfactory but he wanted to get the diploma and the course had to cover groundwork. Asked why then he had said in his written statement the teaching on this course was “excellent”, he did not reply. He attended college for classes on Mondays and Tuesdays initially but after two to three weeks changed to Wednesday, Thursday and Friday. He agreed that for this course he was required to produce original research and he asserted that he had done so. The tutors had given the assignment scripts back but the marks were only put on the notice boards. He did not get an ID card. He had no idea why the college records retrieved during the Operation Asterion visit did not show his name. He denied he was lying about taking a Postgraduate Diploma course at CCOL.

42. In re-examination, further questions from the Tribunal and follow up by Counsel, he could not recall whether the CCOL website had had links to further details about courses. As regards the assignments contained in pp. 40-47 of his bundle, he had done these himself, typing them out from the internet. He was given three weeks to do the one at pp. 40-44. By doing this it opened up a different programme which he had then produced on a CD. He had paid £2,500 for the course. The course was divided into terms, not semesters. His name, as given on his CCOL certificate and on his University of Greenwich Certificate, was different because he did not use “Raja” mostly, although he agreed “Raja” was used in one of the two bank statements he had submitted to UKBA. He had applied to Greenwich before getting his passport.

43. Asked about his assignment at pp.40-44, he said that by typing the Swedish internet solution himself this created a Java language, bringing up numbers in rows and in columns in a sort of window. You needed a calculator for this. The work he did for this was in a CD. On the CD he had created variants of a programme. Asked why his “Solution” contained square bracketed entries left blank with no values written in, he said he had put the values in on the CD.

The Documentary Evidence

44. The documentary evidence produced by the respondent relating to CCOL was considerable. The materials submitted by the appellants also included some background information on the college extracted from its website. We have set out earlier facts that were not in dispute, as disclosed by these materials taken together, including the various causes for concern that UKBA began to have from the middle of 2008 onwards which led to the setting up of Operation Asterion. This operation’s remit was “to apprehend and secure evidence of such activities.” The role of the Intelligence Unit was “to act as a point of reference for any college or education related queries that arose on behalf of CIT colleagues and to assess the general bona fide status of the education provider in relation to the Immigration Rules”.

45. The Operation Asterion Interim Report described the college facilities as consisting of a reception and eight rooms on the ground floor and seven rooms in the basement. On the ground floor there was the Principal’s office, a room for staff members, a common room and library, a silent study room and a storage room. In the basement there was a staffroom, three classrooms and one room containing seven chairs but no desks. Two rooms could not be accessed. In the respondent’s assessment there were only 6-8 classrooms, most of which had capacity for eight to twelve students and the largest for twenty to 25 students.

46. The evidence about numbers of students was not clear. When interviewed during the Operation Asterion visit, Acting Principal Mr Kashif Hussain gave varying estimates of the numbers of students registered with the college - ranging from 60 to 200. During the visit Mr Hussain also showed officers a student ID card database which he said contained the great majority of CCOL students, but it did not differentiate between past and present students. Mr Malik in his second witness statement said there was a maximum of 250-350 students. Miss Ullah in her second witness statement estimated that there were approx 100-150 students.

47. On the basis of what officers were told during the visit the college was delivering a number of accredited courses: ABE (Certificate, Diploma and Advanced Diploma Level), ACP (Certificate, Diploma and Advanced Diploma level) University of Sunderland (BSc in Computing) and ILM (Level 7 in Executive Management) courses. The college also ran English classes delivered at foundation, pre-intermediate and FCE (preparation for the Cambridge [English Language] exam) level and two part-time evening classes for upper intermediate and IELTS level. Although there are similarities the details were not entirely the same as those found on the college website: see below at para 54.

48. During the Operation Asterion visit the officers found a template of a Postgraduate Diploma in the Principal’s office. Amongst the contents of a bag belonging to Mr Kashif Hussain were several CCOL - awarded PgDips, including one in Business Management made out in his own name and stated as being awarded in September 2008 and also one in Business Management in the same name of the Principal, Zahid Ali Noman, stated as being awarded in September 2008.

49. The investigating team took with them a list containing a sample of 2o (originally the number given was 25) students who had presented PgDips to the Home Office issued by CCOL in support of Tier 1 (Post-Study Work) applications in order to cross-reference this with college files. None of the sample students’ names were in the filing cabinet which Mr Kashif Hussain had identified as containing student files.

50. During the time the investigating team spent at the college several students did attend, the majority to attend English language classes. Several others who came said they were collecting assignments or wishing to register.

51. The Operation Asterion Interim Report also referred to information the team had obtained from ILM who accredited a CCOL Level 7 course in Executive Management, which is equivalent to a Postgraduate Diploma. This showed that CCOL was approved by them on 27 March 2008 to offer a Level 6 Award in Management and a Level 7 Award, Certificate and Diploma in Executive Management. 38 students from CCOL (later corrected to 37 students, in evidence before the Tribunal) did register with them to undertake the Level 7 courses, but after only four modules were completed and a visit by two ILM assessors in May 2008 had raised concerns about standards, ILM suspended their accreditation on 20 June 2008. As a result of the 2 December visit UKBA took steps to ensure that the college was removed from the DIUS register on 4 December 2008. It appears that the college told its staff it was to close from 8 December 2008. On 22 December 2008 UKBA issued instructions to caseworkers to refuse all immigration applications based on CCOL studies or awards.

52. The respondent adduced additional evidence indicating that CCOL as well as external agents were issuing PgDip certificates and that the same were being advertised for sale. Also being issued were transcripts of academic records and confirmation of completion of course letters for the purposes of application to UKBA under the Tier 1 (Post-Study Work) scheme. A number of examples exhibited showed that the start and end dates and the dates of award of the actual certificates relied upon varied between different months in 2007/2008. There were also statements from two students admitting buying a PgDip in IT or BM without having enrolled on or studied for such a qualification.

53. Although Mr Kashif Hussain was arrested he was never charged and a decision was taken by the CPS not to prosecute. Mr Saif Ullah’s name had been linked in articles which appeared in The Times newspaper on 21 and 22 may 2009. These described an investigation by journalists from that newspaper into alleged bogus colleges. In these articles Mr Saif Ullah was reported to have left the country.

54. The respondent exhibited the CCOL prospectus and website information. The website advertised ACP Computing courses (Certificate, Diploma, Advanced Diploma), BSc (Hons) Computer Systems Engineering, BCS Professional Qualifications, a British Computer Society Professional Graduate Diploma in IT and a number of Business Management (BM) courses. Several of these BM courses were accredited by ABE. There was also the ILM Level 7 Award already mentioned, together with a Certificate Diploma/Professional Diploma in Sales and Marketing – London Centre of Marketing and a Diploma in International Trade.

55. The respondent’s bundles also included an exchange of e-mails between UKBA and Mr Saif Ullah in September 2008. They showed that Mr Ullah in his capacity as Principal was asked to provide a list of students on the PgDip BM course in the 2007/2008 academic year but could not do so. What he stated was that the college had offered its own Postgraduate diploma course from May 2007 but that it had then dropped this course and continued with the ILM Diploma in Executive Management.

56. During the visit officers seized a CCOL module specifications document. According to the respondent this consisted of genuine Level 7 ILM course materials that had been (electronically) copied and pasted.

57. The investigating team obtained statements from several members of the CCOL teaching staff: Ms S Ullah, Mr M Malik (who also gave oral evidence before us), Dr Karim, Ms A Rapacz, Ms Da Silva, Ms E Ryabinova, Mr A Tariq, Ms J Serra and Mr G Singh Johar. There were also statements taken from Ms Lai Lu, who was a receptionist, and seven students.

58. We have already summarised the evidence of Mr Malik and Miss Ullah who were both adamant that CCOL never ran PgDips in BM or IT. Mr Asjad Tariq, who had only started working as an IT teacher one month before CCOL closed, was not aware of any postgraduate courses at CCOL. Mr G S Johar, who had worked as a software projects leader employed at CCOL for approximately three months, was unaware of any Business Management course running at the college. None of the teaching staff who gave statements said that PgDips in IT or BM were run by CCOL.

59. We should also mention that the background documents from the respondent included a 2008 publication of the Quality Assurance Agency for Higher Education entitled “The framework for higher education qualifications in England, Wales and Northern Ireland (FHEQ)”. This explains, inter alia, that in the UK and Ireland, each stage within any framework of qualifications, be it school, vocational, further or higher education, is commonly referred to as a ‘level’. In practice, most such levels represent bands of qualifications that share similar expectations of attainment. The FHEQ has five levels, three of which are undergraduate and two are postgraduate. These are number 4-8, succeeding levels 1-3 which preceded higher education in the national Qualifications Framework and the Qualifications and Credit framework (NQF/QCF). In Table 1 it is noted that qualifications at FHEQ Level 7 include Postgraduate diplomas and Postgraduate certificates.

The Legal Framework

60. Para 322(1A) of Statement of Changes in Immigration Rules HC395 states:

“322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for variation of leave to enter or remain or, where appropriate, the curtailment of leave:

Grounds on which leave to remain in the United Kingdom is to be refused
…
(1A) Where false representations have been made or false documents have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application.”

61. At para 6 of the Rules “deception” is defined as follows:

“‘Deception’ means making false representations or submitting false documents (whether or not material to the application), or failing to disclose materials facts”.

62. The respondent has also made reference to para 320, which reads:

“320. In addition to the grounds for refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to para 321 below, the following grounds for refusal of entry clearance or leave to enter apply:

Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
(1) the fact that entry is being sought for a purpose not covered by these Rules;
(2) the fact that the person seeking entry to the United Kingdom is currently the subject of a deportation order;
(3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality;
(4) failure to satisfy the Immigration Officer, in the case of a person arriving in the United Kingdom or seeking entry through the Channel Tunnel with the intention of entering any other part of the common travel area, that he is acceptable to the immigration authorities there;
(5) failure, in the case of a visa national, to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought;
(6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;
(7) save in relation to a person settled in the United Kingdom or where the Immigration Officer is satisfied that there are strong compassionate reasons justifying admission, confirmation from the Medical Inspector that, for medical reasons, it is undesirable to admit a person seeking leave to enter the United Kingdom.
(7A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application.
(7B) subject to paragraph 320(7C), where the applicant has previously breached the UK's immigration laws by:
(a) Overstaying;
(b) breaching a condition attached to his leave;
(c) being an Illegal Entrant;
(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not);
unless the applicant:
(i) Overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;
(ii) used Deception in an application for entry clearance more than 10 years ago;
(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;
(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago, or
(v) was removed or deported from the UK more than 10 years ago.
Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.
(7C) Paragraph 320(7B) shall not apply in the following circumstances:
(a) where the applicant is applying as:
(i) a spouse, civil partner or unmarried or same-sex partner under
paragraphs 281 or 295A,
(ii) a fiancé(e) or proposed civil partner under paragraph 290,
(iii) a parent, grandparent or other dependent relative under paragraph 317,
(iv) a person exercising rights of access to a child under paragraph 246, or
(v) a spouse, civil partner, unmarried or same-sex partner of a refugee or person with Humanitarian Protection under paragraphs 352A, 352AA, 352FA or 352FD; or
(b) where the individual was under the age of 18 at the time of his most recent breach of the UK's immigration laws.”

63. Para 245Z provides:
245Z. Requirements for leave to remain
To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an applicant must meet the requirements listed below. Subject to paragraph 245ZA(i), if the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(b) The applicant must not previously have been granted entry clearance or leave to remain as a Tier 1 (Post-Study Work) migrant.
(c) The applicant must have a minimum of 75 points under paragraphs 51 to 58 of Appendix A.
(d) The applicant must have a minimum of 10 points under Appendix B.
(e) The applicant must have a minimum of 10 points under Appendix C.
(f) The applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain:
(i) as a Participant in the Fresh Talent: Working in Scotland Scheme,
(ii) as a Participant in the International Graduates Scheme (or its predecessor, the Science and Engineering Graduates Scheme),
(iii) as a Student,
(iv) as a Student Nurse,
(v) as a Student Re-Sitting an Examination,
(vi) as a Student Writing Up a Thesis.
(g) An applicant who has, or was last granted leave, as a Participant in the Fresh Talent: Working in Scotland Scheme must be a British National (Overseas), British overseas territories citizen, British Overseas citizen, British protected person or a British subject as defined in the British Nationality Act 1981.
(h) An applicant who has, or was last granted, leave as a Student and:
(i) is currently being sponsored by a Government or international scholarship agency, or
(ii) was being sponsored by a government or international scholarship agency, and that sponsorship came to an end 12 months ago or less,
must provide the written consent of the sponsoring government or agency to the application.“

64. The text of para 245Z is the same as was in force at the date of the decisions under appeal in the three appeals before us. Table 9 has since been amended but, in the form took at the relevant time for the purposes of these three appeals, it stated:

“Attributes for Tier 1 (Post-Study Work) Migrants

51. An applicant applying for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant must score 75 points for attributes.

52. Available points are shown in Table 9.

53. Notes to accompany the table appear below the table.

Table 9

Qualifications

“The applicant has been awarded:

(a) a UK recognised bachelor or postgraduate degree, or

(b) a UK postgraduate certificate or diploma in education, or

(c) a Higher National Diploma (‘HND’) from a Scottish Institution.

Points

20

(a) The applicant studied for his award at a UK institution that is a UK recognised or listed body, or which holds a sponsor licence under Tier 4 of the Points Based System,
or

(b) If the applicant is claiming points for having been awarded a Higher National Diploma from a Scottish Institution, he studied for that diploma at a Scottish publicly funded institution of further or higher education, or a Scottish bona fide private education institution which maintains satisfactory records of enrolment and attendance.

20
The applicant’s periods of UK study and/or research towards his eligible award were undertaken whilst he had entry clearance, leave to enter or leave to remain in the UK:
(a) as a Student, or

(b) as a dependant of someone with leave in any category permitting the admittance of dependants.

20
The applicant made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification.

15
The applicant is applying for leave to remain and has, or was last granted, leave as a Participant in the International Graduates Scheme (or its predecessor, the Science and Engineering Graduates Scheme) or as a Participant in the Fresh Talent: Working in Scotland Scheme.
75

Qualification: notes

54. Specified documents must be provided as evidence of the qualification.

55. A qualification will have been deemed to have been obtained on the date on which the applicant was first notified in writing, by the awarding institution, that the qualification has been awarded.

56. A ‘UK recognised body’ is an institution that has been granted degree awarding powers by a Royal Charter, an Act of Parliament or the Privy Council.

57. ‘UK listed body’ is an institution that is not a UK recognised body but which provides full courses that lead to the award of a degree by a UK recognised body.

58. To qualify as an HND from a Scottish institution, a qualification must be at level 8 on the Scottish Credit and Qualifications Framework.

List of institutions to which paragraph 1A of this Appendix applies.

…”

65. In response to a request from the Tribunal the respondent clarified that an amendment was made to the Immigration Rules with effect from 27 November 2008 which meant that if no points were awarded for Appendix A, zero points in English language requirements under Appendix B would also be awarded, regardless of whether sufficient evidence existed to meet the English language requirement itself. A further rule change (HC 314) came into effect from 31 March 2009 by virtue of which Postgraduate certificates and diplomas other than UK Postgraduate Certificates of Education no longer attracted points under Appendix A for the purposes of an application under Tier 1 (Post-Study Work) and the provision for dependants was replaced with a reference to Part 8 of the Rules.

The Policy Guidance

66. As explained in NA & Others the Policy Guidance on Tier 1 (Post-Study Work) has so far appeared in a number of versions (five to date). The version we refer to here is that which was current when each of the three applicants made their application i.e. version two (11 September 2008, in force until 26 November 2008). Paragraphs 10 to 13 deal with documents the Secretary of State requires applicants to provide. Paras 14-33 deal with verification and other checks (we shall revert to them shortly). Paras 42-44 explain the requirements of the award of points under Appendix A. Paras 45-81 deal with Attributes in more detail. Paras 44-53 explain how 20 points is to be awarded if an applicant has certain types of qualification. At para 50 the Guidance states that:

“United Kingdom postgraduate certificates or diplomas are acceptable for this requirement. It is not necessary for the awarding body to be a United Kingdom recognized body.”

(As already noted, since March 2009 postgraduate certificates or diplomas are no longer acceptable: see HC 314. But they were at the time of the decisions under appeal in these three cases.)

67. Para 53 of the second (11 September 2008) version states that:

“An applicant can claim 20 points if he/she has undertaken a period of study for the eligible qualification at an institution that … is a United Kingdom recognized or United Kingdom listed body; or is a Scottish publicly funded institution of further or higher education, or at a Scottish bona fide private education institution which maintains satisfactory records of enrolment and attendance; or holds a sponsor licence under Tier 4 of the points-based system (when implemented)”.

68. It is further explained that a United Kingdom listed body is an institution that is not a United Kingdom recognized body but one which provides full courses that lead to the award of a degree by a United Kingdom recognised body. Reference is made to the fact that the United Kingdom recognised bodies and United Kingdom listed bodies that are on the DIUS website are also set out in statutory instruments (para 55). Paras 65-69 deal with the date of award of the qualification (which must be within 12 months of applying). Paras 70-81, so far as relevant here, state:

“Documents we require

70. Paragraph 245AA (and 54 of Appendix A) of the Immigration Rules state that we will only award points when an applicant provides the specified evidence that he/she meets the requirements for this category.

71. The evidential requirements for each scoring section are detailed in the application form. The specified documents are as follows:

i) original certificate of award; and

ii) original letter from the institution at which the applicant studied towards his/her eligible qualification; and

iii) where an applicant is unable to submit their original certificate of award because it has not yet been issued, he/she may submit the application without it. However, the letter from the institution must include extra information explaining the individual’s circumstances; and

iv) original passport(s) or travel documents(s) containing the relevant grant(s) of leave in the United Kingdom for the period during which the applicant studied and/or conducted research for his/her eligible qualification in the United Kingdom.
1) Original certificate of award
72. This must be the applicant’s original certificate (not a copy) and must clearly show the:
• applicant’s name;
• title of the qualification; and
• name of the awarding body.
73. We will not accept provisional certificates.
2) Original letter from the institution at which the applicant studied
74. This letter must be an original letter (not a copy), on the official letter-headed paper of the United Kingdom institution at which the applicant studied and bearing the official stamp of that institution. It must have been issued by an authorised official of that institution and must confirm the:
• applicant’s name;
• title of the qualification;
• start and end dates of the applicant’s period/s of study and/or research for this qualification at the United Kingdom institution; and
• date of award (as defined above).
75. If the qualification is a postgraduate diploma or certificate, the letter must also include:
• confirmation that the qualification is equivalent to or above the level of a United Kingdom bachelor’s degree.
76. If the qualification is an HND from a Scottish institution, the letter must also include:
• confirmation that the qualification is at HND level and was studied at a Scottish institution.
3) Extra information in original letter from the institution at which the applicant studied
77. When the applicant is unable to provide a certificate of award (for example, when the application is made before the applicant’s graduation), this letter must also include:
• details of the body awarding the qualification; and
• confirmation that the certificate of the award will be issued.
4) Original passport(s) or travel document(s) containing the relevant grant(s) of leave in the United Kingdom for the period during which the applicant studied and/or conducted research for his/her eligible qualification in the United Kingdom.
78. Applicants must send their original passport(s) or travel document(s) with their application.
79. We will check the applicant’s immigration status in the United Kingdom throughout the whole period of his/her study and/or research in the United Kingdom. To do this, we will cross-check the evidence provided in the application with the applicant’s relevant passport(s) or travel document(s). This check will enable us to establish that for the period of study and/or research in the United Kingdom, the applicant was here as a:
• student;
• student nurse;
• student re-sitting an examination;
• student writing up a thesis; or
• As a dependant of someone with leave in any category that allows dependants to join them in the United Kingdom.

80. If an applicant who is in the United Kingdom cannot provide the passport(s) or travel document(s) containing the relevant grant(s) of leave, we will attempt to verify his/her status in the United Kingdom during the period of study and/or research by checking the electronic records we hold internally.

81. We will not award any points if the applicant has not sent us the relevant passport/s or travel document/s, and we cannot establish his/her status during the period of study and/or research in the United Kingdom by checking his/her immigration history using our internal electronic records. In this case, it will not be possible to award points in this area and we will refuse the application.”
69. There is no express reference in this or the original version of the Policy Guidance to the general grounds for refusal, although in common with later versions it states - in a section dealing with verification and other checks - that if a document is considered false, “we will refuse the application because the applicant does not meet the funds requirements and because he/she has sent a false document” (paras 23, 28, also 21 of the second version). And all versions starting with version 3, dated 27 November 2008, contain a para 4 which states:

“Application in all the points based system categories will be subject to General Grounds for Refusal. This means that even if the applicant qualifies under the specific category of the Rules under which he/she is applying to come here (such as his/her previous immigration history) that may lead to the application being refused.”

70. The Policy Guidance provisions dealing with verification state:

“Verification and other checks

14. We aim to consider applications quickly. However, we must also be confident that applications meet the requirements of the immigration rules, and that the information an applicant provides is a true reflection of his/her background.

15. We will ask for a variety of verifiable documents to enable us to consider the application.

16. We may want to check the supporting documents an applicant sends with his/her application. Therefore, he/she must ensure that all the evidence comes from a source that can be clearly identified and that it can be independently confirmed as being genuine.

17. There are two situations in which we will undertake a check:

verification checks – where we have reasonable doubts that the documents are genuine; or
other checks – where we carry out further checks, for example:

allegations – where we have received an allegation that an applicant has made a false application; or
additional checks – where we have doubts about an application or the document sent with the application but the doubts are not serious enough for us to make a verification check.

Verification checks

18. Where we have reasonable doubts that a specified document is genuine we may want to verify the document with an independent person or government agency.

19. The purpose of these checks is to ensure that the document provided is genuine and accurately reflects statements made in the application. If the document is being used as evidence to score points, we also want to ensure that it entitles the applicant to claim those points.

20. Verification may delay our decision on an application so we only do it when there are clear reasons for it.

Reasonable doubt

21. There are many reasons why we may doubt that a specified document is genuine and what we consider to be a reasonable doubt will depend on an individual application. However our judgments will be based on the facts we have.

Outcome of verification check

22. There are three possible outcomes of a verification check:

Document confirmed as genuine. If we can conclude that the document is genuine, we will consider the application as normal.

Document confirmed as false. If we can conclude that the document is false, we will refuse the application, whether or not the document is essential to the application. If a document is confirmed as false we will normally refuse the application for more than one reason.

For example, if an applicant sends us a bank statement to show that he/she has enough funds available, and we have evidence that the statement is false, we will refuse the application because the applicant does not meet the funds requirements and because he/she has sent a false document.

Verification check inconclusive. If we cannot verify that the document is either genuine or false then we will ignore it as evidence for scoring points. If the applicant has sent other specified documents as evidence for scoring the relevant points, we will consider these as normal. If the applicant has not sent any other documents, we will award zero points in that area.

Refusing applications without making further checks

23. We may refuse an application without making verification checks in two circumstances:

Where we are concerned about a piece of evidence but would in any event refuse the application for other reasons, those reasons will form the basis of the refusal. We will not make verification checks in these circumstances. However, we will always verify passports if we doubt they are genuine.

Where there is evidence that provides a particular document is false. If we can confirm that a document is false we will normally refuse the application for more than one reason. For example, if an applicant sends us a bank statement to show that he/she has enough funds available, and we have evidence that the statement is false, we will refuse the application because the applicant does not meet the funds requirement and because he/she has sent a false document.

Other checks

24. We will make other checks where, for example:

we have received an allegation that an applicant has made a false application; or

we have doubts about an application or the documents sent with the application but these are not serious enough for us to make a verification check.

25. The checks may delay our decision on an application so we will only make them when we have clear reasons to do so.

Allegations

26. If we receive an allegation about a particular person, company or document that relates to an application, we may make more checks to confirm that the application and all the information provided are correct.

Extra checks

27. Sometimes we will have suspicions about a document, but they will not be enough to make us doubt that it is genuine. For example, this may be because previous verification checks have found that some supporting evidence is invalid and some is genuine, or where evidence provided contradicts information we already have. In these cases, we may carry out more checks.

Outcome of check

28. There are four possible outcomes of these checks:

Documents confirmed as genuine. If we can conclude that the document is genuine, we will consider the application as normal.

Document confirmed as false. If we can conclude that the document is false, we will refuse the application, whether or not the document is essential to the application. If a document is confirmed as false we will normally refuse the application for more than one reason. For example, if an applicant sends us a bank statement to show that he/she has enough funds available, and we have evidence that the statement is false, we will refuse the application because the applicant does to meet the funds requirements and because he/she has sent a false document.

Check inconclusive. If we cannot verify that the document is either genuine or false then we will consider the application as if it is genuine.

Check gives us cause to have reasonable doubt about the genuineness of a specified document. If we cannot verify the document is either genuine or false but as a result of the checks we find other reasons to doubt the genuineness of a particular specified document, we may decide to make a verification check.

Procedure for verification and other checks

29. The procedures for both verification checks and other checks will usually be similar and will vary from case-to-case, but they may involve:

checking the details or genuineness of documents with employers, the relevant embassy or high commission, other government departments (in the United Kingdom and overseas); and
checking the accuracy and authenticity of documents with banks, universities and professional bodies.

Standard procedure

30. We will use a standard form to record the results of our enquiries, we will normally wait for up to a maximum of four weeks for the necessary information.

32. If we make checks on an applicant who is self-employed we will try to establish the business presence, for example by checking business and/or tax registration.

33. We may request that our compliance team visits the applicant’s employer (if the applicant is currently a work permit holder) or educational institution (if the applicant is a student) before we make a decision on the application.”

71. There is also a separate section of the UKBA Immigration Directorate Instructions (IDIs) that deals with the Refusal of Variation of Leave to Enter or Remain on General Grounds (Paragraph 322 HC 395) (Ch. 9 Section 4). In 1.1. it is stated that in addition to refusal on substantive grounds:

“There are general grounds which need to be taken into account before granting leave to remain or varying leave to enter. Although a person may meet the requirement of the relevant category of the Rules consideration must also be given as to whether any of the general grounds apply.”

72. Para 4 headed “Paragraph 322(1A) – Deception used in Current Application” deals with false representations, false documents and material facts not disclosed and the need for evidence. Paras 4.11-4.12 states:

“4.11 As with any refusal it is important to compile corroborative evidence to support the decision. The wording of paragraph 322(1A) states ‘false representations have been made or false documents have been submitted’ i.e. the burden of proof is on caseworkers (and not the applicant) to prove a false representation and that it was made for the purpose of obtaining leave. Whilst the standard of proof rests on the balance of probabilities, for matters of false representations and documents it is a higher balance of probabilities than normal.

4.12. In the case of false representations caseworkers should clearly show that the applicant’s representations conflict with other evidence / previous application.”

73. At 4.17 there is a sub-head, “Alternatives to refusing on general grounds”: at paras 4.18-4.19.1 the IDIs state:

“4.18 Where it is thought that a document is false but independent verification is not possible, or disclosing the verification is not possible, then caseworkers should consider refusing under the substantive immigration rules.

4.19 Caseworkers are free to point out the perceived inconsistencies in a document and assert that it cannot be relied upon because of those inconsistencies. This will provide the basis for a robust refusal on whatever grounds the document has been provided to substantiate. e.g.

4.19.1 Scenario 4

An applicant for further leave to remain as a student is required to show that they are able to maintain and accommodate themselves. In doing so they produce a bank statement showing that their level of funds is sufficient.

Closer inspection of the statement reveals that the figures given for transactions do not add up to the statement balance. Furthermore there are spelling mistakes on the document.

The caseworker approaches the issuing authority to verify that the document has been falsified but they are unable to supply the caseworker with information because of customer confidentiality issues.

Because independent verification cannot be sought the caseworker cannot use paragraph 322(1A).

Instead the caseworker refuses the application under the substantive rules. The refusal notice should point out each error on the statement and state that the caseworker is unable to accept it as evidence of finances and therefore the application has not proven they can maintain and accommodate themselves.”

74. Para 16 heading “Linking General Conditions and Substantive Rules” includes 16.5 – 16.6, which state:

“16.5 Where the refusal is based on the general grounds but there is a link between the general ground and the substantive rules, the substantive rule should be added to the reasons for refusal. e.g.

16.6 Scenario 7b

The student who is required to be enrolled on a course of study has provided a forged enrolment letter. The application falls for refusal on Paragraph 322(1A) because they have used deception but also Paragraph 60(iii) because they have failed to show they are enrolled on a course of study.”

Case law on Tier 1 (Post-Study Work)

75. At the time of the hearing there were no reported cases from the Tribunal dealing with Tier 1(Post Study Work) cases. However, we note that there have since been two cases, KAN (Post-study Work –degree award required) India [2009] UKAIT 00022 and NA & Others (Tier 1 (Post-Study Work) - funds) [2009] UKAIT 00025. We did not consider we needed to invite submissions from the parties on the significance of these cases to the present appeals, since neither deals with the points that are in issue before us. Nevertheless they do serve as a helpful source of reference concerning general features of this scheme as well as Appendix A in particular.

Submissions

76. Mr Clarke dealt first with questions the Tribunal had asked the parties to address concerning the burden and standard of proof in respect of para 322(1A) of the Immigration Rules. The respondent accepted, he said, that in respect of general grounds of refusal, the burden of proof lay on the respondent. Paragraph 322(1A) concerned an allegation of false representations/documents. As regards the standard of proof to be applied, the House of Lords had recently reiterated that there is no “sliding scale” or “heightened civil standard”. Rather, as Lord Hoffman described in Re: B (Children), para 13, “there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.” There was a flexibility to the standard, but, as Richards LJ had expressed it in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605 [2008] QB 468 497-8 para 62, “the flexibility … lies not in any adjustment to the degree of probability required for an allegation to be proved … but in the strength or quality of the evidence that will in practice be required…”. He urged us not to endorse the submission set out in the appellants’ first skeleton argument which argued that when allegations of fraud or misrepresentation were made the standard should be “indistinguishable from the criminal standard of proof”. To discharge the civil standard under para 322(1A) the respondent would need cogent evidence; however that could be drawn by looking not just at the documents but also at an array of other statements and documents that clearly pointed to the conclusion that CCOL during 2008 became a factory for bogus PgDips in BM and IT and established the respondent’s case to the requisite standard.

77. Mr Clarke asked us to conclude that the CCOL had never run PgDips in BM or IT. He said there were a number of “indicators” pointing strongly to that conclusion. First there was the evidence we had from two senior, long-standing members of staff, Mr Malik and Miss Ullah, who said that the college had not run such courses. In such a small college, it was not possible for such courses to have run without them knowing. According to the appellants’ evidence, the class sizes were 20 to 35 and there were timetables displayed on notice boards. If that were true, such courses would have been noticed by all regular staff. In addition, one of the teachers at the college said by Mr Raja to have taught him on a PgDip IT – Dr Karim – had said no such course existed. Of the two tutors said by the first two appellants to have taught them in 2008, one of them – Mr John Opoku – was stated by Miss Ullah to have stopped teaching at the college sometime in 2007.

78. A second indicator, said Mr Clarke, was the absence of any countervailing evidence. There was a deafening silence from the college owners, Principals and tutors, past and present, said to have taught these courses. The CCOL website Prospectus made no mention of such courses. There was nothing at all about such courses in the promotional literature or in any of the materials found at the college.

79. A third indicator relied on by the respondent was the absence of any accreditation. Mr Clarke accepted that at the relevant time it was technically open to the college to award its own diplomas, but in all other known respects the college presented itself as offering external awards through accredited courses. The evidence indicated that in late 2007/early 2008 the college had attempted to set up an accredited Postgraduate Diploma course in the form of a Level 7 ILM course in Executive Management, but only a handful registered, and, because of ILM withdrawing its accreditation after several months, no one was ever awarded this qualification. Further, the various statements made by Mr Saif Ullah on behalf of the college in e-mail correspondence with UKBA was inconsistent as to when the ILM course was said to have commenced and equivocal if not false as to what was said to have replaced it after ILM’s accreditation was withdrawn.

80. Another indicator was the absence of any designated course materials in the form of a syllabus, course outline, reading list, examination and written work specifications etc. The materials presented by the three appellants as evidence of their course materials and written lecture notes and assignments had not stood up to scrutiny.

81. Against this background it was apparent, submitted Mr Clarke, that CCOL had never run PgDip courses and we should find that the respondent had adduced cogent evidence to demonstrate this.

82. Mr Clarke submitted that in the light of all these considerations, the consequences for the three appeals were straightforward. The evidence of all three appellants was not credible and should be rejected. They had had every opportunity to put forward designated course materials of the sort one would expect to find on a PgDip course or proffer other evidence to support their case, but had only been able to come up with a random assortment of materials mainly cut and pasted from the internet. It was inconceivable that they did not know that the courses they claimed to have attended never ran. Accordingly the Tribunal should conclude that the respondent was right to refuse each of them under para 322(1A). Since they clearly had known about the use of false documents, they had also used deception. The Tribunal should make a finding on this fact, since it affected the applicability of a separate general ground of refusal, para 320(7B), that could be applied in the event that any of these three applicants were to apply from abroad for entry clearance.

83. Mr Clarke submitted that we should also find that the three appellants had failed to meet the substantive requirements of para 245Z, a rule under which the burden of proof was on the appellants. Even if the Tribunal did not accept the respondent’s case on para 322(1A), because for example it did not consider the respondent had discharged the burden of proof, we should nevertheless find that, because bogus Pg Dips in IT and BM were issued by CCOL or other agents, the appellants could not show they were entitled to be awarded any points for “Attributes” based on Postgraduate Diploma qualifications, as the latter were not legitimate. Para 245Z(e) could not be satisfied simply by the production of a piece of paper. There had to have been study at an appropriate level in order for the paper to represent a reality.

84. Mr Macdonald submitted that particularly since the three appeals were intended to be test cases it was important for the Tribunal to be aware of the policy and legislative background. As a result of the way in which the government had introduced first the IGS scheme and then the Tier 1 (Post-Study Work) scheme, a loophole opened up in May 2007 which enabled colleges to award their own Postgraduate Diplomas and for students to then rely on these in order to qualify (from June 2008) for Post-Study Work. This had represented a fundamental change in policy from the position before, whereby students came to the UK for study and could not switch to employment categories. Unsurprisingly this had led to a scramble on the part of colleges catering for foreign students to run qualifying courses and had enabled unscrupulous individuals to take advantage of the situation. The respondent accepted that CCOL had in the past been a bona fide college and that even up until the time it closed down in December 2008 there continued to be genuine courses being run there, with many genuine students. But unscrupulous fraudsters had got a foothold there mid-way through 2008.

85. The three cases boiled down, submitted Mr Macdonald, to two simple questions. First, were PgDips in BM and IT being offered by CCOL in 2007/2008 as claimed? Second, if they were, did these three appellants undertake such courses? As to the first question, the written, oral and documentary evidence established that these courses were run. The respondent had not discharged the burden of proof of showing the documents submitted by the three appellants were false.

86. As regards the standard of proof, the allegations made in these appeals had consequences so serious that the respondent could only discharge the legal burden of proof on the basis of very cogent evidence similar to that needed in a criminal trial. The serious consequences included potential criminal liability and a potential long-term re-entry ban under para 320(7A). It was clear from Lord Carswell’s observations in Re:Doherty that where the consequences were serious there had to be critical or heightened examination and scrutiny. The evidence relied on by the respondent in this case did not exhibit this heightened scrutiny.

87. The respondent, said Mr Macdonald, relied heavily on the evidence from three staff at the college (Mr Malik, Miss Ullah and to a lesser extent Dr Karim), but they freely admitted that although the college was not large there were a lot of lectures and classes running within quite a small building and it was not a place where staff and students lingered. Mr Malik for example, had a job elsewhere. None of these three worked more than three days a week. Miss Ullah had given forthright, even bombastic evidence, but it had to be asked whether she had not exaggerated her own position and the extent of her knowledge of what went on in the college outside her own ABE courses. We had not heard from other persons as being Heads of Department. It was wrong of Mr Clarke to suggest that the college website made no mention of PgDip courses: it did. The website and DVD had also to be read with caution as they seemed to be based on events prior to mid 2008.

88. Mr Macdonald urged us not to let the cloud of suspicions hanging over Mr Saif Ullah distract our attention from the clear evidence contained in the e-mail correspondence that the college had taken legitimate steps to commence an ILM Level 7 course, not achieved until March 2008, and it may well have been that the college had begun its own Postgraduate Diplomas in 2007 with a view to incorporating them into an accredited award, until ILM negotiations broke down. Probably the ILM course was to be the flagship course, but when that did not work out the college reverted or converted to running its own courses. It might look “dodgy”, but it was probably perfectly legal under the new Post-Study Work Rules. At some point unscrupulous fraudsters were able to take advantage of this situation.

89. Just as Mr Clarke had set out several “indicators” which he said should be taken as pointing towards a conclusion of fraud, so Mr Macdonald identified several indicators which he considered pointed to the opposite conclusion. First there was the student ID log which had been seized during the raid on 2 December 2008. There were several individuals entered there as being students on an “ILM” or ILM-PGD” course (numbers 1248, 1249, 1250, 1251 and 1255, 1270, 1306, 1383, 1436, 1477, 1481, 1489, 1494, 1498). Second, given the introduction of the IGS scheme in 2007 and public discussion about the government plans to set up a Points Based System, it would be very surprising if CCOL, like many other colleges around this time, were not trying to help young students move from the world of study to the world of work. It would have been a big draw for the college.

90. Turning to the second question (did the three appellants attend?), Mr Macdonald conceded that the quality of their evidence did vary, but he asked us to deal with each individually. None of these appellants was the type of persons said by Miss Ullah to be queuing up after hours to see Mr Saif Ullah and Mr Kashif Hussain. If they had not been attending as they claimed they would not have been able to give a good description of the layout of the college and the number of rooms etc. They had been able to specify when they attended and the names of the people who taught them. Mr Clarke had been at pains to point out that the course materials they had produced did not appear to suggest the degrees they took were up to Level 7 standard. Yes, there was a lot of copying of internet materials, but the question was not whether the CCOL courses were high quality courses or whether the students on them plagiarised, but whether the courses and the materials produced relating to them were genuine. If Mr Clarke was right and the three appellants had set out to concoct a set of course materials, surely they would have done a better job. The materials of the first two appellants included lengthy handwritten notes; was it to be believed that they had prepared handwritten notes after the event just to lend a veneer of credibility to a completely incredible story?

91. The Tribunal should be extremely wary, urged Mr Macdonald, about gaps in the evidence. The student ID list produced was clearly quite defective both as a historic record of students and as a current record. Mr Malik’s evidence was that there were separate records kept for overseas students, who must have formed the bulk of the college’s students. The evidence given suggesting that twelve digit student numbers were not normally if ever used needed scrutiny, since it was clear that for some purposes only the last four digits were used. Of the students who were known from the ILM records to have enrolled on the ILM course, only two (1250 and 1251) were not on the student ID lists. Both Miss Ullah and Mr Malik said they had handed their attendance records to someone employed on reception or who came in from outside to do IT work, who then put them on a computer list, but no such list has come to light. The respondent had confirmed that materials seized included hard drives of some computers. Yet they had not divulged what they contained. The investigating team appeared to have done a very poor job following-up on leads and ensuring that all with relevant knowledge about the college had been properly interviewed. In short, the cases lacked hard evidence. The Tribunal should find the respondent had not discharged the burden of proving false documents or representations under para 322(1A).

92. As regards para 245Z, the new Points Based System of which it formed part did not envisage refusal on 245Z grounds based on fraud or false documents except where separate grounds of refusal were seen to apply. The whole idea of a points based system was to make decisions based on “box-ticking”. If the respondent believed there was fraud or false documents, then he had to take the route set out under the general grounds of refusal under which he bore the legal burden of proof; but if the general grounds were not proved, then there was no basis for refusing an applicant’s eligibility under para 245Z on the basis of fraud or false documents. All that mattered under para 245Z with reference to Appendix A was that those in the college with authority to do so had awarded a Postgraduate Diploma. Further the Policy Guidance contained its own procedures for verifying documents. If there was a reasonable suspicion documents were false, inquiries had to be made. The premium was on formal compliance.

93. Mr Macdonald said he accepted that if the respondent was considered to have succeeded in discharging the onus of proof under paragraph 322(1A), then the appellants must also fail under para 245Z, but the two rules had to dovetail. Para 322 was a very draconian power: it did not just apply to third parties. There would be no point having that power if every case involving falsity could be refused under the substantive Rule.

94. It would be quite wrong, submitted Mr Macdonald, to draw inferences from an absence of evidence and from, for example, the absence of any persons (apart from Dr Karim) said by the three appellants to have taught them. The Tribunal should avoid speculation.

95. Towards the end of the hearing the Tribunal requested the respondent to furnish further information on whether any of the students registered on the ILM Level 7 courses at CCOL who applied for Tier 1 leave relied on PgDips in the name of CCOL. The respondent’s note in reply dated 10 June 2009 stated that the respondent had checked the names of 37 students [correcting an earlier reference to 38 students] on ILM’s registration record against its spreadsheet log of applicants for leave relying on PgDips in the name of the college. This had revealed a match in seven cases. The respondent had contacted ILM for further details but no response had been received. The respondent had also searched GCID (General Case Information Database) using the 37 names to provide details of immigration history/current immigration status. Due to time constraints Tier 1 staff were unable to use Home Office files for in-depth analysis. Despite a consequent lack of detail, the respondent considered that his analysis showed that it appeared that at least 5 and possibly 7 students registered with ILM at CCOL had applied for Tier 1 leave using CCOL PgDips.

96. In reply to this note the appellants’ representative submitted that the material referred to in the note should be seen as supporting the appellants. The fact that there were students relying upon PgDips from CCOL who were registered with ILM showed that CCOL had created its own Postgraduate certificates for business studies, genuinely taking place in the college. It also showed that the student ID card register was not an accurate or reliable guide to those who had actually enrolled in the college. The absence of proper enrolment or attendance records at the college was regrettable, but the reason for their absence was a matter for speculation and “genuine students should not have to carry the can for either the disappearance of records or for their ineffectiveness”.

Our decision

Para 322(1A)

97. Para 322(1A) is a general ground of refusal in mandatory form. It is a relatively recent addition to the provisions of Part 9 of the Immigration Rules dealing with refusal of variation of leave to enter or remain (having come into effect on 29 February 2008), although there have been long-standing provisions governing entry clearance in similar form and also a discretionary general ground of refusal using similar language at para 322(2). It is settled law that a representation can be false even if not fraudulent. As stated by Staughton LJ in Tahzeem Akhtar v Immigration Appeal Tribunal [1991] Imm AR, 326 at 332 (which dealt with para 13(a) of HC 169):

“…a false representation is one that is inaccurate or not in accordance with the facts. I say that, first, from the ordinary use of the English language and, secondly, because it seems to me that that interpretation squares more easily with the words in the rule “whether or not to the holder’s knowledge”. I agree that there is an alternative explanation for those words being in the rule, that is to say, to cover the case when somebody else has made a fraudulent representation. But to my mind they were inserted to show that representations, either by the holder or by anybody else, need not have been fraudulent…”

The burden and standard of proof

98. In JC (part 9, HC 395 – burden of proof) China [2007] UKAIT 00027 the Tribunal reconfirmed its view that in respect of the general grounds of refusal the burden of proof rests on the respondent. That is also the position that the respondent takes, as can be seen from the IDIs, Section 4, Chapter 9: see above para 71. However, in JC although the Tribunal cited with approval the statement of Richards LJ in R (AN & Anor) v Secretary of State for the Home Department [2005] EWCA Civ 1605 that there is only a single civil standard, it also approved an earlier Tribunal decision which had made reference to allegations of deception or other criminal conduct requiring a standard of proof “at the higher end of the spectrum of balance of probability”. In the light of the recent decisions of the House of Lords in Re B (Children) and Re:Doherty the reference to a “spectrum of balance of probability” must be seen as incorrect, since it wrongly suggests that the civil standard of proof is a variable one. As their Lordships have clarified, citing with approval the same reference by Richards LJ in R (AN & Anor) to “a single standard of proof … flexible in it application”, the only way in which the greater seriousness of the allegation or of the consequences is of relevance is in relation to the necessary quality of the evidence. Just as JC must now be read with this correction, so must the Home Office IDIs which at para 4.11 currently state (wrongly):

“Whilst the standard of proof rests on the balance of probabilities, for matters of false representation and documents it is a higher balance of probabilities than normal.”

99. The Tribunal asked the parties prior to the hearing to make submissions on the question of whether, given that the CCOL investigations by the joint police/UKBA team had threatened more than one person with prosecution, the standard of proof applied should be the criminal standard of beyond reasonable doubt. Neither party dealt with this question squarely in their skeleton arguments, although the appellants’ skeleton argument, in the context of an analysis of Re: B(Children) and Re:Doherty, did submit that:

“… given the very serious, indeed criminal, nature of the allegations being made by the Respondent, and the very serious consequences for the Appellants were the allegations to be established, the burden is upon the Respondent to prove such allegations with evidence of such cogency that, for practical purposes, it is indistinguishable from that which would be proffered and considered appropriate to discharge the criminal standard of proof”

and Mr Macdonald took up the same theme in his submissions before us. Mr Clarke submitted before us that the criminal standard of proof would be inappropriate.

100. We cannot agree with Mr Macdonald that the allegations made by the respondent in deciding to refuse the appellants under para 322(1A) should be seen as requiring evidence “appropriate to discharge the criminal standard of proof”. That is not merely because there was nothing before us to show that anyone other than those in charge of CCOL (i.e. non-students] faced criminal prosecution. It is rather because of the nature of Part 9 of the Immigration Rules. Part 9 deals with grounds for refusal based on various types of wrongdoing on the part of applicants. The wrongdoing is not defined in terms of any criminality, but by reference to abuse of various aspects of immigration controls: see JC. The subject-matter of the types of wrong conduct defined in Part 9 of the Immigration Rules and certain criminal offences may overlap, but that does not mean the former is to be treated as criminal. In addition, refusal based on such grounds does not carry penal consequences. As Mr Clarke pointed out, refusal under Part 9 of the Immigration Rules does not inherently deprive an applicant of any right or privilege in the same way as a criminal conviction (for an imprisonable offence) does (through potential deprivation of liberty).

101. However, we do agree with Mr Macdonald that the consequences of refusal under Part 9 can be serious and that this is certainly true for persons such as the three appellants who, depending of findings of fact made by the Tribunal, may find themselves, if removed from the UK, faced with a 5 – 10 year re-entry ban under para 320(7B) (albeit para 320(7B) and (7C) contain exemptions designed, inter alia, to ensure compliance with an applicant’s human rights). Whilst we would note that Lord Hoffman in Re:B (Children) emphasised that the seriousness of the consequences do not require a different standard of proof, we do accept that for the respondent to satisfy us he has discharged the burden of proof on him on the balance of probabilities he would, in the context of this type of case, need to furnish evidence of sufficient strength and quality and he (and the Tribunal) would need to subject it to a “critical”, “anxious” and “heightened” scrutiny.

102. Such a requirement does not impose any rigid formal rule on the Tribunal circumscribing the range and scope of the evidence to which we may have regard. It does not in particular require us to be satisfied that the CCOL certificates for an award of PgDip in BM and IT as sent by the three appellants (and a large number of other foreign nationals) were forgeries or documents failing to bear the correct college stamp or signature. As already explained, we did not have any decisive evidence on that question. However, as Mr Clarke correctly submitted (without demur from Mr Macdonald) the Tribunal is not bound by strict rules of evidence and is entitled to have regard not only to direct witness evidence but an array of other statements and documents. The Tribunal is not, for example, confined to evidence tested by cross-examination (Khawaja [1983] UKHL 8, para 111), nor is it obliged to disregard written statements by witnesses not available for cross-examination or documents not supplied by direct written or oral evidence as to the circumstances in which they came into existence (Khawaja, para 125).

103. Before turning to give our assessment of the witnesses who gave oral evidence, we remind ourselves of the fact that the respondent does not allege that the college was a wholly bogus college. The Operation Asterion report concluded that whilst the team who carried out the investigation into college bona fides was satisfied that the college had never awarded genuine PgDips, nevertheless:

“As there was evidence of English language classes running and the lecturer [Ms Rapacz] was able to provide evidence of her students and attendance, it cannot be determined that [CCOL] was a wholly bogus establishment, but it is concluded that it is semi-legitimate.”

Witnesses for the respondent

104. Mr Macdonald did not seek to challenge the credibility of the evidence given by Mr Stewart, Mr Fletcher, Miss Jackson, or Mr Malik. Whilst he did not challenge Miss Ullah’s truthfulness either, he did maintain that her evidence was exaggerated and in some respects unreliable. We consider that both Mr Malik and Miss Ullah were witnesses of truth. We had been advised by Mr Clarke earlier that both had freely made written statements to the police and the respondent but were reluctant to become involved in proceedings. Mr Malik chose nevertheless to attend. He gave his evidence in a straightforward way and was able to be precise about his own role in CCOL and how he combined his duties as IT support person and teacher in the IT Department heading the ACP courses and a BSc accredited by the University of Sunderland. It was apparent, however, that he had limited knowledge about the college’s filing and records systems: the contrast between his precise description of how he kept his own student attendance records and course particulars and his uncertain answers to questions about whether the college administration kept separate files for overseas students was striking.

105. Miss Ullah had informed the respondent prior to the hearing that she did not wish to attend the hearing as she was reluctant to be involved in court proceedings. As already noted, following a request made by Mr Macdonald, the Tribunal issued a witness summons. When she attended in compliance with that summons she confirmed that she had made her statements to the police and the respondent freely and that she stood by them. We found Miss Ullah an impressive witness. She gave her evidence in a forthright, confident manner and dealt well with a diverse range of questions from counsel and ourselves. The brief statement she had given the police shortly after their visit in 2 December 2008 had provided only a sketchy account, but in her more recent statement to the respondent and in her evidence to the Tribunal she was able to fill that out considerably and make the context clearer. On certain matters her evidence was imprecise, e.g. when she referred to the fact that in the last few months of 2008 there were a “lot of people” seen coming into the college after 5 p.m. to see Mr Kashif Hussain and Mr Noman. Her estimates of student numbers were also lower than most others. But in general we do not consider that she sought to exaggerate or profess knowledge about college affairs she did not have.

106. We need to address the matter concerning Miss Ullah’s position at the college. Whilst not directly challenging her evidence, Mr Macdonald did suggest at several points that it was odd she should describe herself as “Head” of the Business Department when no one else described themselves as Head of Department and her name was not on the website of CCOL teachers. However, it was incorrect of him to say no-one else described themselves as “Head” of a Department at CCOL: Miss Rapacz, the English teacher interviewed, described herself as running her department (bundle E, p.36) and Elena Ryabinova, another teacher interviewed, refers to Miss Rapacz as Head of the Department (ibid, p.42). And we accept Miss Ullah’s evidence that her name did appear on the college website for some period of time and was on it in early December when she was interviewed by officers from the Operation Asterion team. She explained that the website was updated frequently and that, for reasons unknown to her, her name was removed from it. It is clear to us from the detailed evidence that she gave regarding her time at CCOL that she did run the courses as described by her. Mr Malik, who we found to be a witness of truth, also confirmed Miss Ullah’s position at CCOL. Miss Ullah was not asked why she called herself “Head” of the Business Department. This may have been self-styled or a title given to her, but in either event we consider the challenge to her credibility, based on her name not being on the website now, of very little significance.

The three appellants

107. The only witnesses called by Mr Macdonald were the three appellants. In evaluating their evidence we bear in mind that, having found their appeals chosen to be the three to be heard together as part of a “test case”, it cannot have been easy for them to face lengthy questioning from experienced Counsel and a senior panel. We also bear in mind that the documentary evidence they produced included in respect of each of them a CCOL PgDip award certificate and accompanying “To Whom It May Concern” and “transcript of Academic Record” letters. It also included in respect of Miss Akbar and Mr Raja, receipts for fees paid bearing a CCOL stamp. At the same time we bear in mind that each was allowed to be present throughout the proceedings, so that both Miss Thirakaluthy and Mr Raja were present to hear Miss Akbar give evidence and Mr Raja was present to hear Miss Thirakaluthy; that they have known for some time that the respondent disputed their claims to be genuine students or to have attended PgDip courses at CCOL, so that they and their legal representatives had ample time to retrieve and check through materials from their claimed courses before submitting them; and that the award certificates and other documents on CCOL notepaper or bearing a CCOL stamp have been very much called into question by the respondent.

108. Miss Akbar was able to describe the layout of the college sufficiently to satisfy us that she had actually been inside it. Beyond that, however, we find her evidence seriously wanting. Her evidence was internally consistent and she was able to give rough figures for the number of students on her course and about the number of subjects, exams and assignments she did. But her description lacked detail and we gained the strong impression that she was far too ready to avoid explaining why her coursework materials were deficient by recourse to the convenient reply that they were what her teachers had given her.

109. Given that Miss Akbar based so much of her claim to have studied on a PgDip at CCOL on the contents of coursework and materials she had submitted, we think it particularly significant to note precisely what they comprised. She was adamant in reply to Mr Clarke that the materials she had submitted at pp. 72-139 of her bundle represented the entirety of the course handouts her teachers had given her. We note that the course concerned was said by her to be a PgDip running for two terms – the first commencing in January 2008 and the second at the beginning of May 2008. We note that amongst these handouts there was no curriculum, syllabus, course outline, timetable, reading lists, written style requirements, or the like. We find far-fetched her claim that on such a course her teachers would not have given her and the other students such materials but simply relied on posting them on the college notice board.

110. According to Miss Akbar her coursework had included two main assignments and a further ten to fifteen shorter ones. These, she said, had all been marked by her teachers. Yet despite being able to produce (what she described as) a complete set of course materials, she was only able to produce two assignments. Neither of these had anything specifically to identify them as the work of a CCOL student doing a PgDip BM assignment or as work that had been marked by a CCOL teacher. Asked whether her assignments were ever returned to her with marks and/or comments, she said they were not and that her teachers had given her no feedback, written or oral, and had simply posted the results on the notice board. Taken in isolation we can just about envisage a PgDip course so badly taught that students were not given any feedback on assignments but, in the context of her evidence as a whole, we consider this claim simply added to the picture of a witness who was unable to give a credible account of being a genuine student on a PgDip course.

111. Despite her claim to have studied at CCOL for eight months Miss Akbar was unable to produce a student ID card. She said she had never been given one. Whilst we had evidence from Mr Malik and Miss Ullah that occasionally students did not have ID cards, we bear in mind that both emphasised that this was rare. Her name did not appear on any student records seized during the Operation Asterion visit.

112. Miss Thirakaluthy’s evidence was even more unsatisfactory. On her evidence she had already studied for and successfully completed a degree in Business Administration (BBA) from Stratford College. We would therefore have expected her to have a relatively good idea about the standards of work involved in pursuing a PgDip in BM. In her written statement she was definite that all the course materials and handouts she had submitted were “various lecture handouts” produced by the college or as part of its CCOL PgDip BM course. However, she was quickly forced to admit under cross-examination that this was far from being the case. A lot of them, she conceded at one point, were documents she herself had downloaded from the internet and printed off. At another point she said she was unable to distinguish between her own downloaded materials and ones given as part of the course. Some pages of the materials in her bundle bore download dates in 2009, long after her purported PgDip BM course was said to have finished. Some of her handouts appeared more in the nature of promotional materials than lecture handouts. Like Miss Akbar, even though she was able to produce a considerable number of lecture handouts (albeit not in her case purporting to be a complete set because, she said, she had not kept them all), she had assembled what she could in a panic. None included a curriculum, syllabus, course outline, timetable, reading lists, written work, style requirements, or the like. We find such claims to lack credibility. She plainly had ample time and opportunity to assemble relevant course materials and we find her explanations for the lack of the aforementioned items wholly unsatisfactory.

113. Miss Thirakaluthy said that her course had included a dissertation of some 10,000 words on the subject of “Tourism in Mauritius”, her home country. She had submitted it, it had been marked, but she did not have a copy. Initially she said she still had a copy of it on her desktop computer. Asked why she had not therefore produced it, she first said it did not cross her mind. Several questions later she said her desktop that had crashed. Later on, in reply to questions from the panel, she explained that in her bedsit she did not have a desk and had operated her desktop on the floor. We consider that on this subject Miss Thirakaluthy was floundering and simply unable to give truthful answers. We consider that if she had in truth completed a dissertation for this work on tourism in her own country she would have had particular reasons to retain a hard copy or arrange to have a copy made of the one she claimed to have submitted.

114. It transpired further that some of the materials submitted as handwritten notes taken at CCOL lectures and tutorials were not her own. Some other notes were her own but turned out to relate to the course she took at Stratford College. Some had dates written in the top right hand corner that had been altered from “07” to “08”. She could not explain why those alterations had been made. We recognise that students may sometimes borrow and copy notes taken by other students, in the event for example of absence through illness from a particular class, but we do not find Miss Thirakaluthy’s notes were of this kind.

115. It was put to Miss Thirakaluthy by Mr Clarke that, given the numerous shortcomings in the quality and level of the material she said had been given to her as lecture handouts, she must have worried whether her teachers knew what they were doing. She said she considered that they were reliable. The college was running perfectly, she said at one point. Given her claim to have studied for and obtained a business degree at an institution in Stratford, East London, we find that strains credulity and do not accept this as the truth.

116. On the strength of her ability to give a relatively accurate account of the layout of the college and its classrooms, we are prepared to accept that, like Miss Akbar, Miss Thirakaluthy had been inside CCOL premises at some point, but apart from that we find her evidence highly unsatisfactory and we do not consider that she was ever a genuine student there. Despite claiming to have studied at CCOL for eight months, she was unable to produce a student ID card (she said she was never issued one) and her name did not appear on any student records seized during the Operation Asterion visit. As noted in respect of Mr Malik and Miss Ullah, not all students had ID cards, but both accepted that it was rare not to have one.

117. We turn to the evidence of Mr Raja. We are prepared to accept that he too may have been inside CCOL at some point: he also was able to give a reasonably accurate account of its topography. According to his evidence, before enrolling at CCOL for a PgDip in IT he had already successfully completed a BSc and a Masters in IT. We are bound to say we have doubts about the validity of his previous degrees because the certificates awarding them were not in the same name as appeared on his passport or on his CCOL certificate. We did not find his attempt to explain that at all satisfactory. But for the purposes of this appeal we shall assume there is some legitimate explanation for these differences. Like Miss Akbar’s and Miss Thirakaluthy’s course materials, those he submitted did not include any curriculum, syllabus, reading lists, written work style requirements etc. Like them, he claimed - implausibly - that all these matters were covered by his tutors purely orally. However unlike the other two appellants he did produce a timetable. In our view it only added to other difficulties we had with his evidence since it referred to “semesters” whereas there has been nothing reliable shown to us from the CCOL website or anywhere else to suggest that “semester” as opposed to “term” was a word used by the college to describe the segmentation of its academic year (the website entries produced to us state that the CCOL calendar year is divided into 3 terms and “we conduct all course a the college to fit in with this format”).

118. Mr Raja said that he had been required as part of the course to produce around sixteen assignments in all and that he had only kept copies of two. Asked to explain how both of these appeared to be straight reproductions of entries from a Swedish internet website and how both his answers were in identical wording and font to the website entries, Mr Raja agreed that this was where he had found them, but insisted that this was what he had been told to do by his teacher. He was pressed to explain how, given that his assignments were mere copies of website material, he had done anything “value-added” to them. He first said that the skill dimension to it lay in typing the Swedish website’s wording himself. Several questions later he modified his stance to say that “variants” of his answers were contained on a CD which he had submitted along with the written assignment (but which he had not been able to produce to us). Nevertheless he continued to claim that the written assignment answers were answers to the question that had been set by his tutor. When asked to explain why, if that was the case, his answer had simply copied a model answer which left actual numerical values blank (so they simply read “[ ]”, he was unable to offer any coherent reply. Later on he began to say that the solution he had produced for the second assignment consisted of a Java programming language which when typed brought up boxes and columns. Elements of what he said (e.g. the reference to the Java programming language) made sense, but his attempts to link them together made no sense at all – nor did Mr Macdonald seek to persuade us that they did. We conclude that Mr Raja was desperately inventing answers as he went along.

119. In his written statement Mr Raja was clear in stating that he considered the PgDip course he claimed to have attended at CCOL to be of “excellent quality”. Yet faced with questions from Mr Clarke highlighting the significant number of course materials simply reproduced from the internet websites, some of it at an elementary level, he altered his position to saying that he had realised it was not very satisfactory but that he had put up with it because he needed a diploma from a listed college. Like Miss Akbar and Miss Thirakaluthy, he was a student who claimed he had not been issued with an ID card, despite studying for some eight months and paying a considerable sum of money (£2,500) in his case. Like them, no record of his name has been found in any of the college records seized. Further, of the two tutors he said taught him (Mr Saif Ullah and Dr Karim), the latter has given a statement saying he did not know the appellant and that the college never ran a PgDip in IT. We do not consider Dr Karim’s statement to be necessarily reliable, but its lack of congruence with Mr Raja’s claims highlights the lack of supporting evidence for his key claims.

120. It is of some interest to consider the evidence of the three appellants together. Their oral evidence was broadly consistent one with the other (their written statements also had several paragraphs identical with one another) but given that Miss Thirakaluthy and Mr Raja were in the hearing room when Miss Akbar gave evidence (and Mr Raja when Miss Thirakaluthy gave evidence), that is not surprising. None said they knew the others as students at CCOL. Yet Miss Akbar and Miss Thirakaluthy each said they did a PgDip BM course around the same time in classes of between 15 and 35 students. That they would not have known each other, if they truly did this course, is highly unlikely in a college with at most had between five to eight classrooms. On their own evidence to us Miss Akbar attended classes three days a week (unspecified), Miss Thirakaluthy on Tuesdays and Wednesdays and sometimes Friday afternoons and Mr Raja on Tuesdays and Wednesdays for a few weeks and thereafter on Wednesdays, Thursdays and Fridays. Each of the appellants emphasised that they made use of college notice boards for various types of information. If the first two appellants were to be believed, there must have been more than one PgDip BM course running during the year, which makes it even more surprising that Miss Saamia Ullah had not heard of such a course running. Further, despite attendances which on their own account overlapped and despite making use of college notice boards, neither Miss Akbar nor Miss Thirakaluthy knew of Miss Ullah, despite the fact that she was Head of the Business Department. Mr Raja, who said he did a PgDip in IT, did not know Mr Malik, who was a long-standing staff member in the IT department. Despite Miss Akbar and Miss Thirakaluthy claiming to do the same course running at roughly the same time, the lecture notes each produced had not a page in common. The former said the main written work consisted of “two main assignments”. The latter said the main written work consisted of a dissertation. Originally none said they had considered there was anything unsatisfactory about the standard and quality of the teaching. Mr Raja changed that view under questioning. None was able to explain satisfactorily why, if their handouts were largely as provided by their tutors, they could seriously suggest that the level of teaching was excellent and professional. None of the student files or other documentation seized during the Operation Asterion visit related to the appellants. Although each was able to produce the 3 documents they had submitted to UKBA ( as well as in the case of Miss Akbar and Mr Raja fee receipts bearing a CCOL stamp), none was able to produce a college ID card.

121. Placing the evidence of the three appellants in the context of the other evidence available about the college and its courses and subjecting it to a heightened degree of scrutiny, we are entirely satisfied that the respondent has shown that they were never genuine students at CCOL.

The Other Evidence

122. Even though we had produced to us in these cases a very large quantity of evidence about CCOL (apart from that specifically relating to the three appellants) it is right to say that it contained some significant gaps. Evidence provided by the appellants’ representatives markedly did not include any statements from tutors named by the three appellants as their tutors.

123. On the respondent’s side we were never furnished with an inventory of all the documents seized from the college during the Operation Asterion visit. Despite informing us that among the items seized from the college were computer hard drives, we were never told what search had been made of them or what, if anything, they contained. Despite the UKBA having mounted a specific monitoring exercise of the CCOL-related applications made to UKBA, and police having then mounted a special investigation code-named “Operation Asterion” involving more than a dozen officers and leading to the arrest and questioning of one of two “key nominals”, it appears that when it was learnt that at least one of them was abroad in Pakistan, there was little follow-up. In relation to various persons whose names had been linked in some way with seemingly bogus activities at the college it would appear that despite UKBA taking the initial steps that led to the mounting of Operation Asterion, once the police became involved, UKBA took a back seat; and, once the CPS took a decision some time in early 2009 not to prosecute anyone, the police investigation went into abeyance and UKBA failed to take matters much further themselves. It may be that, unbeknown to us, the police and/or the UKBA have made further enquiries of the persons named as the current owners, or of Mr John Opoku (whose signature appears on a number of college documents submitted to UKBA and who is said to have taught Miss Thirakaluthy and Miss Akbar) or of Mr Islam Ali or other persons suggested by some of the evidence to have been involved in seemingly fraudulent activities. But if so we would have expected to be told so. We were not.

124. On the appellants’ side we were not told of any efforts to obtain statements from or call any persons said to have been involved in teaching the CCOL PgDips in BM or IT during 2007/2008. Nor were any apparent efforts made to obtain the course materials/lecture handouts used in these alleged courses from past Principals or teachers at the college or other students said to have been in the same classes as the three appellants.

125. We agree to an extent with Mr Macdonald that it would be wrong to infer from gaps in the evidence from the appellants’ side that no such evidence exists, but in our view the absence of such evidence is relevant to assessing the true state of affairs, particularly given that ample opportunities to obtain such evidence do not appear to have been taken (we were not told of any attempts to trace and obtain witness statements from, for example, Mr Saif Ullah, Mr John Opoku or Miss Ojulari).

126. Before turning to the specific issue of CCOL PgDips, there are several matters that require specific attention.

The student ID log

127. A considerable amount of time was taken up at the hearing with examining to what extent the student ID log found during the Operation Asterion visit was a reliable record. Certainly no other central record was found. The Operation Asterion report refers to student files found in a filing cabinet in one of the staff rooms. They largely matched the student ID log, albeit they contained nothing more than an application to join the college: no passport, educational qualification or other supporting evidence accompanied them. In our view, having considered the evidence as a whole, we consider that the student ID log is reliable as a (largely complete) historical record of persons who were included in the college’s records as students, but that it does not necessarily tell us anything about whether persons whose names appear on that record as doing PgDips or the ILM course in Executive Management actually undertook studies for such courses.

Student reference numbers

128. Once again, a considerable amount of time was taken up with questions and submissions relating to the significance of different student reference numbers found in the evidence before us. We do find it strange that there should be 12 digit numbers used when on the student ID log there were just 4, but on the other hand there is a correlation between the last 4 digits of some of the 12-digit numbers with documents other than the student ID records. We think the evidence about student reference numbers is too inconclusive to help either the respondent or the appellants.

College layout and class sizes

129. We heard a number of accounts of college layout and class sizes. Comparing the Operation Asterion description with that given by the staff members who gave statements there is broad agreement about the layout of classrooms. As regards the number of classrooms and class sizes, however, there has been too much variation for us to settle on a precise figure, although we have not seen anything reliable to suggest that the number of class rooms exceeded 8. Given the size of the classrooms, none of which was particularly large, we think it unlikely that classes normally had above a maximum of 25-40 students (it would appear that class sizes were often significantly lower than these figures) and unlikely that the college had more than 150-300 students.

CCOL PgDips

130. We turn then to the specific issue of CCOL PgDips. What is the evidence of the existence of CCOL PgDip courses being run during 2007/8? We agree with Mr Clarke and Mr Macdonald that in the absence of a complete picture of the evidence, we must look at “indicators” pointing one way or the other.

131. We note first of all that the evidence Mr Macdonald was able to adduce of the college running specific Pg Dips in BM and IT was extremely tenuous. There were of course the trio of PgDip certificates, “To Whom It May Concern” and Academic Transcript letters that each of the three appellants and various other individuals had submitted to UKBA in the course of making their applications under the Post-Study Work scheme. But without more they were simply pieces of paper.

132. By contrast, the respondent was able to assemble some significant pieces of evidence from his own research. We note that the UKBA had formed the view in October 2008 that the evidence relating to such certificates was anomalous since, as was noted by a UKBA Executive Officer, Robin Smith, they were being received in high numbers, well beyond the capacity for a relatively small college (some 2,542 in the two months leading up to 22 December 2008). The documentation submitted was of poor quality, in varying colours, some letters had not been signed by an individual but just a ‘Programme Leader’, the wording in some letters from the college was identical to others, and there were several cases where the overseas national had entered the UK as a student at another college but had submitted a qualification from CCOL whilst still registered with that other college. In addition, UKBA had undertaken a study of a sample of supporting documents submitted by students claiming to have been awarded a CCOL certificate in either PgDip BM or IT on 20 August 2008. An Executive Officer, Mr K Ara, found that of 29 individuals who had all submitted PgDip BM or PgDip IT certificates, the accompanying “Transcript of Academic Record”, showed that a significant number had obtained identical pass marks to one another, regardless of the course start date, in eight subjects. We would add that all of the certificates refer to candidates “having satisfied the board of examiners”. We had no evidence to suggest that the college ever had any “board of examiners”.

133. However, we did not receive clear evidence as to what genuine CCOL certificates and supporting documents look like or as to whether those submitted were signed by persons authorised to sign them. This was not a situation where a document has been submitted and it is then conclusively established that it is a forgery or issued by an unauthorised person. At best therefore we can only say that the evidence of the PgDip BM and IT certificates and supporting documents issued by the college raise a number of doubts about whether they were properly issued by the College Principal or other persons duly authorised to issue them. And as Mr Macdonald properly observed, such doubts do not take matters very far, since it was accepted by him that at some point in mid-2008 unscrupulous persons, involved either with the owners or those who became Principal after Mr Mustafa, had managed to issue or have issued bogus certificates in plentiful numbers. That did not prove, he said, that there were not genuine PgDip BM and IT courses going on, or that there were not genuine students who took those courses and genuine certificates issued.

134. The only other evidence to which Mr Macdonald was able to point to (apart from the appellants’ own evidence) in order to substantiate his claim on their behalf that the respondent had not proved falsity was of the claims made by Mr Saif Ullah in e-mail correspondence with UKBA. On 17 September 2008 a Mr Parker from UKBA had e-mailed Mr Saif Ullah, who was then said to be the Principal of CCOL, asking him, further to a telephone conversation, to furnish certain information and in particular to specify the dates on which CCOL ran its claimed PgDip in BM, whether there was an awarding body for the course, a list of all students enrolled on this course for 2007/8, the number of study hours per week and a list of all modules included in the course. On 18 September 2008 Mr Ullah replied stating that: “We have started course titled as “[PgDip BM]’ on 24 May 2007 …. As it was an internal programme so Cambridge College itself was the awarding body for the course”. The e-mail went on to state that students on the course did 22 hours per week and it gave a list of eight modules. These 8 modules, we note, did correspond with the letters that Miss Thirakaluthy and Miss Akbar had submitted to UKBA to show what course they had taken, their marks etc. As regards the request for details of the students, however, he replied, “I really apologise that I am not in a position to send the details of the enrolled students on this course for 2007/8 as we are compiling all student files and will be sent to you as soon as it would be available.” In reply to a further e-mail from Mr Parker dated 19 September asking who assessed this diploma and whether CCOL was accredited by a governing body, Mr Ullah replied on 23 September stating that the college was accredited by BAC (British Accredited Council) and the ASIC and:

“Furthermore our Postgraduate Diploma in Business Management is our internal designed course which normally assess [sic] by our internal teacher [sic] equivalent [sic] to NQF Level 7. Now we stopped [sic] our internal Postgraduate Diploma and continue [sic] our another NQF Level 7 course which is ‘ILM-Diploma in Executive Management’.”

135. Despite Mr Parker then sending an e-mail the next day saying that he still required a full and comprehensive list of all students who had been awarded the PgDip BM for the 2007/8 academic year, Mr Parker records on 14 May 2009 that he never received a reply.

136. Mr Macdonald sought to argue that this correspondence indicated that the probable truth was that in 2007 CCOL had begun its own internal Pg Dip BM and had then attempted to convert it into an ILM accredited course before reverting, when ILM suspended accreditation, to an internally run course. We take a less indulgent view. The correspondence plainly reveals that Mr Saif Ullah told Mr Parker a blatant lie. As Mr Macdonald himself acknowledged, the independent evidence we have from ILM officials shows that they had authorised CCOL to run an ILM accredited diploma in Executive Management for a period of only a few months (between 28 March 2008 and 20 June 2008) when accreditation was suspended, never to be reinstated. For Mr Ullah to represent in September 2008, some three months later, that CCOL was running an “ILM-Diploma in Executive Management” course was quite false. Furthermore, he had never furnished the names of the students undertaking the PgDip course in BM, despite two requests from Mr Parker that he do so.

137. Furthermore, if CCOL had begun its own PgDip in BM in 2007/early 2008, modelling it on the ILM, and had continued to do so during and after the period of ILM accreditation, we would have expected to see CCOL course materials showing this. But all we have seen is a CCOL module specifications document seized from the premises (included in the respondent’s bundle at bundle C, Tab 4) that is simply copied and pasted from genuine Level 7 ILM materials and the course materials from the first and second appellants, whilst including some ILM materials, contained numerous materials bearing no relation to the ILM course details.

138. We are unsure what is added to the picture by the statements we have from persons who said they were students on a Level 7 ILM course in Executive Management run by CCOL. Of the five statements before us four are from those who are named on the registration list with ILM. Only Mr Mohammad Malik’s name does not appear on that list. The statements do broadly agree in suggesting that at some point early in 2008 the persons concerned enrolled at CCOL on an ILM PgDip course. But they also disclose apparent dishonesty on the part of their authors. Mr Farhan Islam, for example, wrote that he attended classes from March–July which went smoothly and that he and fellow students only experienced problems when they went back to the second semester and were told there were problems with ILM accreditation. He then described Mr Saif Ullah giving him an “interim progress certificate” and being told by both Mr Ullah and subsequently Mr Noman that this would suffice for UKBA to grant him leave under the Post-Study Work scheme. He said he submitted it to the UKBA believing it was legitimate and genuine. The fact of the matter is that at that point in time he had, on his own account, completed only half his course. Mr Aurangzaib Siddiqui’s evidence was to similar effect, although he described the internal report he received as including a Postgraduate certificate “for the last 5-6 months progress report”. The UKBA record of what he submitted to them was of a PgDip BM award, and made no mention of an interim “progress report”. Mr Mohammed Malik spoke of attending an “ILM PgDip in Business Administration”, not, we note, a PgDip in Business Management or in Executive Management. Mr Kashif Aslam spoke of having been enrolled on an “ILM Diploma Level 7” from February to August before “I told [Mr Ullah] I didn’t want this certificate as I wasn’t interest [sic] in PSW”. That might seem curious, given that on his own account he said he had paid £1,700 so far. Mr Irfan Amir spoke about studying on a CCOL ILM course from November/December 2007 (when he was told the course was to be delayed due to low numbers) and from February 2008 to July 2008. On his own account his course was supposed to end in September 2008, yet he spoke of sending an application to UKBA for Post-Study Work accompanied by a CCOL award despite not studying beyond August 2008. Significantly, considering this group of statements together, they describe an ILM course starting and finishing on different dates and given different names. We also bear in mind that an ILM Diploma would in any event have been issued by ILM, not CCOL.

139. Turning from Mr Macdonald’s suggested indicators of the existence of CCOL PgDips, let us consider the indicators which appear to point against their existence.

140. There was no specific mention of any CCOL PgDip courses on the college website nor among any of the college literature produced by the appellants. As noted in the respondent’s skeleton argument, the closest thing to a PgDip in IT was the “Professional Graduate Diploma in IT” offered by the BCS, but that differed from the claimed PgDip in IT in duration, academic level, subject modules and the nature of the assessment. In Business Management the closest thing to a PgDip in BM was the ABE Advanced Diploma in Business Management, but not only were the subjects entirely different to those the first two appellants claimed they studied but, being a course run by ABE, this led to an award of the relevant qualification by ABE itself, not by CCOL.

141. We need to say a little more about the CCOL website. We have the details of this website in the form it was in at the time of the hearing. We are wary of assuming that the website was in the same state during the earlier period, from June to December 2008. For one thing, it appears to have been designed to include updates and college news from time to time. For another Miss Ullah was adamant – and we believed her evidence about this – that in early December when she gave her statement to the police her name did appear on the page giving the names and positions of staff members. Yet her name was not on it now. Further, there were at least two names on it, that of Mr John Opoku and Miss Mulikat Ojulari, who may not in fact have been teaching at CCOL at that time. As regards Miss Ojulari, we had little evidence apart from that given by the three appellants and so we can only note doubt on our part. But as regards Mr Opoku, we have serious doubts as to whether he taught at CCOL in 2008. Both Miss Ullah and Mr Malik whose evidence we found credible, said Mr Opoku had not taught at CCOL since 2007.

142. Be that as it may, what evidence we have of the website contains no reference to Pg Dip BM or IT courses. There was a reference to “undergraduate and postgraduate level courses” and to “Level 7 courses”. There was also a reference to “Last year we also saw introduction in Certificate, Diploma and Advanced Diploma Level courses in the fields of Business Administration, Business Information Systems and Travel, Tourism and Hospitality from the Association of Business Executives.” But the only particular course given in any identifiable detail related to the “ILM Level 7 – Management Courses – Certificate and Diploma”.

143. Then there is the evidence we have from several of the college teachers. In particular we have the evidence of Mr Malik and Miss Ullah which included their oral evidence. Mr Macdonald did not challenge that evidence in any important particular. They were very clear that CCOL has never run such courses and that, if they had, they would have known about it. There were also statements from several other teachers none of whom knew of the existence of such courses. We bear in mind that the CCOL was a relatively small college occupying a ground floor and a basement, having no more than 8 classrooms and consisting in approx. 150-300 students. It is inconceivable that courses said to have run on dates between late 2007 and late 2008 could have taken place, without Mr Malik and Miss Ullah and probably the other teaching staff who gave statements, knowing about it.

144. Of some interest also is the evidence in the form of statements from two individuals who said they had been able to purchase bogus CCOL PgDips in BM or IT: Opeoluwa Atinuke Ehindero and George Ratnaraj. Although not playing a significant part in our assessment, they give some insight into at least one of the ways in which it came about that a very large number of individuals in the second half of 2008 submitted Post-Study Work or student applications to UKBA based on CCOL PgDips in BM or IT. They describe agents selling them bogus certificates. Their description is similar to that given in news articles exhibited to us. Mr Macdonald would have it that these show no more than that there were bogus as well as genuine applications made on the basis of such courses. In our view however, it is far more likely that they form part of a wider picture showing that these courses never ran.

145. In the light of the above we find that the respondent has discharged the burden of proving on the balance of probabilities that CCOL never ran its own PgDip courses in BM or IT. We further find that the period of time during which the college was ILM-accredited for the Level 7 ILM diploma in Executive Management was too short for any CCOL student to have completed that course and those who had been registered with the ILM could never have completed various requirements for its successful completion. We should add that in the end the debate about the standard of proof has proved somewhat academic, in that we are absolutely confident that even on Mr Macdonald’s view of this (as being indistinguishable from the criminal standard of proof) our findings on the aforementioned matters would have been the same.

Para 320(7A)

146. As already noted, the reasons for refusal letter received by each of the three appellants (and we are given to understand that the wording used in many other CCOL-related refusal letters is very similar if not identical) went on to say that the respondent considered that the appellant in question had used deception. It can be seen from the wording of para 6 of the Rules that, unlike para 322(1A) which does not require knowledge on the part of the applicant, para 6 contains no such extension. In our view that must mean that for deception to arise the false representations must have been made knowingly and the false documents have been submitted knowingly.

147. It will be apparent from our above findings that we consider that no person claiming to have undertaken a PgDip course in IT or BM at CCOL can have done so without knowing that such a claim amounted to a false representation.

148. There is no suggestion in this case that each of the three appellants did not know of the contents of the certificates and accompanying documents they had submitted and what they purported to show.

149. The fact that what the appellants did amounted to making false representations is self-evident. We also consider that all three appellants submitted false documents knowing them to be false. At this point we need to clarify what we understand here by “false documents”. Earlier we have made the point that we had no clear evidence to suggest that the CCOL certificates were forgeries or failed to bear the official stamp of CCOL or were not issued by an authorised official of CCOL. From the background evidence, in particular the reference by Mr Robin Smith of the UKBA concerning receipt of CCOL PgDip certificates in different colours etc it may well be that some of them are forgeries or bear a stamp that is not official or are signed by unauthorised persons. But we do not have sufficient evidence to be clear about that. We do not even know whose signature was used in the “To Whom It may Concern” and Academic Transcript letters under the words “Programme Leader” – because in each case it was illegible. However, the falsity of a document is not just a matter of whether it genuinely comes from the organisation or body that is suggested was responsible for its issue. It is also a matter of that document corresponding to the underlying facts which it purports to verify. In this case those underlying facts were that the certificate was awarded in virtue of the person named having “successfully completed” a post graduate course and being “examin[ed]” on it. On the above findings none of the CCOL PgDip in IT or in BM certificates submitted by the applicants corresponded to such underlying facts. There were no courses run and, a fortiori, no successful completion of such courses. There was no examining, whether by a board or anyone else. Accordingly those submitting them also used false documents.

150. So far as para 320(7A) is concerned, therefore, we conclude that the respondent was justified in identifying it as a provision that would have potential application to each of the three appellants in the event of them applying in the future for entry clearance.

CCOL students registered with ILM

151. From Mr Macdonald’s submissions we elicit the view that at least for those who were enrolled on the ILM-accredited course in Executive Management in early-mid 2008 the situation had to be different since there clearly was such a course, CCOL clearly was accredited and inspected and there were 37 CCOL students registered with ILM for this course. We also know from the Note the respondent submitted shortly after the hearing that only 5 to 7 out of 37 persons who had registered with ILM sought to apply for Post-Study Work leave on the strength of CCOL certificates.

152. We do not exclude that some of the persons who enrolled on the ILM-accredited course between 28 March 2008 and 20 June 2008 (when accreditation was suspended never to be reinstated) may have been entirely genuine. However, it is clear that there was only a small number of such CCOL students (5 to 7 in number according to the respondent’s Note) who made applications to UKBA under the Post-Study Work scheme on the basis of having an ILM-accredited Level 7 post graduate diploma in Executive Management. And in our view any such person must have knowingly made false representations since the reality is that ILM accreditation was short-lived and none of the students registered with ILM ever fulfilled the ILM requirements to obtain their Level 7 Postgraduate diploma.

Para 245Z

153. As noted earlier, each of the three appellants was refused not just under a general grounds for refusal, para 322(1A), but also under a substantive ground, para 245Z. Given that we have found the appellants were properly refused under para 322(1A), it is not strictly necessary for us to decide their position under para 245Z; that refusal means that their appeals cannot succeed: see para 245Z(a), which states that to avoid refusal “The applicant must not fall for refusal under the general grounds for refusal”. However, the decisions made against each were based on both general and substantive grounds; the appeals of each have been brought against both; and we have had submissions dealing with both. At our specific request made in advance of the hearing, we asked for submissions on the interrelationship between para 322(1A) and para 245Z. The submissions we received in response also touched on the general interrelationship between general grounds of refusal and the new-style immigration rules (arising under the points-based system), para 245Z in particular. For all these reasons, we think it right that we should make clear our decision on both 322(1A) and para 245Z. We are also conscious of the fact that there are pending appeals relating to other colleges in which the respondent relies similarly on a combination of para 322(1A) and para 245Z. We cannot rule out that they may include cases in which the state of the evidence is such that the respondent has not proved that para 322(1A) applies and so the appeals will stand or fall depending on the decision taken on para 245Z. It is desirable that we address our view of the general principles that should govern assessment of such cases.

154. Both parties accepted that whereas under para 322(1A) the burden of proof rests on the respondent, under para 245Z the burden of proof rests on the appellant. That must be right.

155. Mr Macdonald said he fully accepted that if we found the appellants properly fell to be refused under para 322(1A), then they were bound to fail under para 245Z: that acknowledgement does no more than reflect the mandatory requirements of para 245Z (a). However, he contended that if we were not persuaded that the respondent had discharged the burden of proof on him under 322(1A) to prove falsity, then there were cogent reasons why we should find that the appellants succeeded under para 245Z. The two had to dovetail: there had either to be a refusal on both grounds or an allowance coupled with a rejection of para 322(1A)’s application.

156. In part Mr MacDonald’s “dovetail” argument rested on the evidently close correlation between the respondent’s reasons for considering there were false representations/ documents (so as to prove para 322(1A) applied) and the respondent’s reasons for considering that the appellants failed to show they qualified under para 254Z: in both cases those reasons were based on the respondent’s view that the CCOL PgDips in BM and IT courses never ran.

157. But Mr Macdonald’s argument also sought to invoke new features of the new Points Based System exemplified by para 245Z, in particular the feature that decisions were to be made on the basis of the paperwork, without involving any exercise of discretion or individual judgement. Thus, he said, under this new system the respondent had effectively created a dichotomy. Unless (as a result of using his verification procedures) he considered an applicant had committed some wrongdoing justifying refusal under a general ground of refusal, the respondent was obliged to treat the documents submitted as reliable. He could not base a refusal under para 245Z on doubts about whether the documents were genuine, only on whether the documents provided the necessary proof that the applicant qualified for points. But if he considered an applicant had committed wrongdoing, then he was obliged to take the route of general grounds of refusal, such as para 322(1A). If he was able to prove that para 322(1A) applied, that would be enough to justify refusal under para 245Z as well, but the converse did not apply. It did not apply because if para 322(1A) could not be made out, the respondent could not rationally continue to hold doubts about the genuineness of the applicant’s application.

158. Mr Clarke, as already noted, did not accept that, in cases where the respondent was found not to have proved that a general ground of refusal such as para 322(1A) applied, this meant that refusal of an applicant/appellant under para 245Z could not be based on any concerns about whether or not it was genuine.

159. From our earlier recitation of law and relevant policy, it can be seen that Mr Clarke’s submission concurs with the wording of both the Policy Guidance and in the Home Office IDIs.

160. It will be recalled that paras 14-33 of the relevant Policy Guidance set out the verification procedures applied in Tier 1 applications. A distinction is made between “verification checks” and “other checks”. In respect of verification checks, where there is a reasonable doubt that a specified document is genuine, checks are carried out with three possible outcomes: the document is confirmed as genuine, the document is confirmed as false or the verification check is inconclusive. If the verification check is inconclusive, the document is ignored as evidence for scoring points and, if the applicant has not sent other documents, zero points are awarded. In the case of other checks, which can be triggered simply by “doubts”, the outcomes are not entirely the same. In particular, if the check is inconclusive, then the respondent says he will consider the application as if it is genuine. In our view, the different outcomes under the two types of checks properly reflect the fact that in one there must be reasonable suspicion, under the other mere suspicion. Where it is only mere suspicion then, not surprisingly, if the outcome is inconclusive, the benefit is given to the applicant.

161. For ease of reference we repeat here the text of the IDIs at paras 4.18-4.19.1, which states:

“4.18 Where it is thought that a document is false but independent verification is not possible, or disclosing the verification is not possible, then caseworkers should consider refusing under the substantive immigration rules.

4.19 Caseworkers are free to point out the perceived inconsistencies in a document and assert that it cannot be relied upon because of those inconsistencies. This will provide the basis for a robust refusal on whatever grounds the document has been provided to substantiate. e.g.

4.19.1 Scenario 4

An applicant for further leave to remain as a student is required to show that they are able to maintain and accommodate themselves. In doing so they produce a bank statement showing that their level of funds is sufficient.

Closer inspection of the statement reveals that the figures given for transactions do not add up to the statement balance. Furthermore there are spelling mistakes on the document.

The caseworker approaches the issuing authority to verify that the document has been falsified but they are unable to supply the caseworker with information because of customer confidentiality issues.

Because independent verification cannot be sought the caseworker cannot use paragraph 322(1A).

Instead the caseworker refuses the application under the substantive rules. The refusal notice should point out each error on the statement and state that the caseworker is unable to accept it as evidence of finances and therefore the applicant has not proven they can maintain and accommodate themselves.”

162. Also for ease of reference we repeat the text of the relevant parts of para 16, headed “Linking General Conditions and Substantive Rules”, namely 16.5 – 16.6, which state:

“16.5 Where the refusal is based on the general grounds but there is a link between the general ground and the substantive rules, the substantive rule should be added to the reasons for refusal. e.g.

16.6 Scenario 7b

The student who is required to be enrolled on a course of study has provided a forged enrolment letter. The application falls for refusal on Paragraph 322(1A) because they have used deception but also Paragraph 60(iii) because they have failed to show they are enrolled on a course of study.”

163. However, the Policy Guidance as such is not part of the Immigration Rules and, as pointed out in ZH (Bangladesh) [2009] EWCA Civ 8, the IDIs are internal instructions to caseworkers and are not an aid to interpretation of the Immigration Rules. It is necessary therefore, to consider existing case law dealing with the interrelationship between general grounds of refusal and substantive rules.

164. In this regard it is helpful to remind ourselves of the general structure of the Immigration Rules and the interrelationship between Part 9 (which deals with general grounds of refusal) and the parts setting out substantive rules. In JC (China) the Tribunal noted certain differences, observing at para 14 that each of the general grounds has an exclusionary, rather than an inclusionary, intent. The applicant is not showing why he qualifies; rather the decision-maker is seeking to show why he is, or should normally be, disqualified. The Tribunal said that another key difference lay in the assignment of the burden of proof. In JC the Tribunal was dealing with para 320(15) which unlike general grounds in mandatory form such as para 322(1A) are cast in discretionary form. Further para 322(1A) had not yet been introduced. The substantive immigration rule in question was also different, being para 128. Nevertheless the points made in para 25 are of general application:

“…The most obvious distinction [between general grounds of refusal and substantive rules] is the one we have just identified: the application of the burden of proof is different for each. For one the burden is on the respondent to first establish the facts on which he relies; for the other the burden rests with the appellant to prove his case. Hence even where the reasons for finding that paragraph 320(15) applies are exactly the same as the reasons for finding paragraph 128 requirements are not met, the outcome under each paragraph may not necessarily be the same, depending on how application of the burden of proof moderates the assessment.”

165. The Tribunal noted a number of features possessed by the rules contained in Part 9:

“4. Several features of these general grounds need clarifying.

5. First, each identifies an additional legal basis of the decision; they are not a set of extra reasons.

6. Second, although they are grounds "additional" to specific substantive grounds under Parts 2-8 of the Immigration Rules that does not mean they cannot form a stand alone basis for refusal; they can. For example, if a person seeks entry for a purpose not covered by the immigration rules, and so paragraph 320(1) applies, that means he must be refused (Indeed, a decision taken on such a ground is one of those which cannot be appealed on immigration grounds alone: see s.88 (2)(d) of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act".)) It follows from this that if a person is refused on one or more substantive grounds under Parts 2-8 and on one or more general ground under part 9, he has two hurdles to surmount. Even if he can show on appeal that one of the two grounds (the substantive and the general) is wrong, he will still fail to meet the requirements of the Immigration Rules if the other ground is made out; and so, his appeal under the Immigration Rules will fail.

7. Third, they fall into two categories: grounds in respect of which refusal is mandatory (320(1)-(7), 321A (1)-(6), 322(1)) and grounds which give discretion (expressed as "should normally be refused"), (320(8)-(21), 321, 322(2)-(11), 323).

8. Fourth, they are a mixed bag and do not easily fit into neat categories. Some are sui generis and have been added over time in response to very specific circumstances: e.g. paragraph 320(4) dealing with Channel Tunnel arrivals. Many are concerned with documentation. They represent, as it were, the list of general grounds which the Home Secretary currently thinks must or should operate to complement the substantive immigration rules.

9. Fifth (assuming both substantive and general grounds are being relied on), there is really no hard and fast rule for immigration judges to adopt so far as concerns the order in which they should be addressed. The subject-matter of the general grounds is too diverse for there to be such a rule. The Home Office IDIs advise their staff, at least in respect of some subparagraphs, to first address the substantive rather than the general requirements of the Rules (in parts 2-8), but they primarily advise that for pragmatic reasons (less scope for argument on appeal). Much will depend on which general ground is matched with which substantive requirement(s). However, where the general ground is one in mandatory form, taking it first would seem logical since a decision on that may be dispositive of the appeal – or may indeed establish ineligibility for an appeal: see above paragraph 6.

10. Sixth, in relation to all of the general grounds the burden of proof is on the decision-maker (entry clearance officer, immigration officer, Secretary of State) to establish the facts relied upon. Their common thread is that they depend for their validity on the decision-maker being able to establish a precedent fact. Unless it is not contested, the precedent fact needs to be established for the duty or power to be exercised. As can be seen from their early formulation as "general considerations" (see e.g. HC509, HC510), the general grounds, now found at part 9 of HC 395, seek to cover circumstances where the Home Secretary considers that a person should not succeed under the Immigration Rules even though he meets the ordinary substantive requirements. They are general grounds for saying "no". (That in respect of such grounds the decision-maker is put to proof may be thought salutary, since otherwise their operation could create an executive "override" capable of undermining the efficacy of the substantive rules.)

11. Another reason why the burden rests on the decision-maker is that each of these grounds alleges in one way or another a failing or a wrongdoing on the part of an applicant. As regards failings, they refer to an applicant's failure to give information, furnish documents, give undertakings or consent or respond to a request to attend an interview (320(3), (5), (8), (8A), (10), (14), (16), (20), 321A(6), 322(9), 322(11), 322(10)), failure to show acceptable intentions (320(4), (9)), restricted returnability (320(13), 321(iii), 322(8)), failure to observe the time limits or conditions attached to any grant of leave to enter or remain (320(11), 322(3)), failure by a sponsor to give an undertaking to be responsible for maintenance and accommodation (322(16)), failure by the person concerned to honour any declaration or undertaking given as to intended duration and/or purpose of stay (322(7), (322(6)), refusal to undergo a medical examination (320(17), (321(iii)), undesirability of admission for medical reasons (321A(3)) and failure to maintain or accommodate himself and any dependants without recourse to public funds (322(4)).

12. As regards wrongdoings, they cover persons subject to a deportation order or exclusion personally directed by the Secretary of State (320(2)(6), 321(iii), 321A(4)), persons whose character, conduct or associations or the fact that they represent a threat to national security makes permitting them to remain undesirable (322(5)), the obtaining of a previous leave to enter or remain by deception (320(12)), the making of false representations or giving of false information or failure to disclose any material fact for the purposes of obtaining employment documents (320(15), (321(i), 321A(2), 322(2)), a change in circumstances since entry clearance was issued or leave given (321(ii), 321A(1)), commission of an offence punishable with a term of 12 month imprisonment (320(18)) or the existence of a criminal record (321(iii)) and exclusion deemed conducive to the public good (320(19), 321A(5)).”

166. The Tribunal went on to accept that sometimes the general and substantive grounds of refusal could be closely interrelated:

“25... Further, whereas one cannot succeed under paragraph 128 unless one meets all its requirements, application of paragraph 320(15), as we have seen, imports a discretion (albeit one which should normally lead to refusal).

26. Nevertheless, we do accept that in certain cases depending on the facts the two provisions may be closely interrelated: when for example, the use of false representations also demonstrates that the appellant does not have the capability or the requisite intention to undertake the work specified (paragraph 128(iii) and (iv)). More generally, if an immigration judge decides that (for example) dishonesty alleged under paragraph 320(15) is not established, that may sometimes incline him to take a different view than he would otherwise as to the appellant's credibility in relation to substantive requirements of the Rules, especially those concerned with the appellant's intentions.”

167. To our understanding this summary is consistent with settled case law: on the entitlement of the decision-maker to treat the general grounds of refusal as furnishing separate reasons for refusal, see e.g. Sukhjinder Kaur v Secretary of State for the Home Department [1998] Imm AR 110 at p. 9. And we derive from the summary that we are entitled to consider the matter of whether the requirements of para 245Z are met even if we have not been satisfied that the respondent has discharged the burden of proof resting on him to show falsity on the part of the appellants under para 322(1A).

168. We agree with Mr Macdonald that the thrust of the new-style immigration rules is to achieve a system of decision-making in which, unless verification or other checking procedures are activated, the decision-maker determines the case on the face of the documentary evidence. The emphasis is on quantitative rather than qualitative assessment: see NA & Others (Tier 1 Post-Study Work - funds) [2009] UKAIT 00025. However, it does not follow that if verification or other checking procedures have been activated by the UKBA but do not result in a conclusive finding, the decision-maker should proceed as if the findings of the verification process are irrelevant or somehow to be put out of mind. The rationale behind what is said in the Policy Guidance or in the IDIs is that such findings should continue to be relevant and in our view it is a rationale which should inform any proper decision-making process.

169. Nor does it follow, even if the UKBA have not activated the verification or other checks procedure in any particular case that immigration judges can overlook the potential applicability of general grounds of refusal. For one thing, para 245Z(a) specifies as one of its requirements that the applicant “must not fall for refusal under the general grounds of refusal…”. For another, there is a general duty on an immigration judge, subject to considerations of procedural fairness, to consider whether the evidence raises any Part 9 issues and, if it does, to resolve them: see RM (Kwok On Tong: HC395 para 320) India [2006] UKAIT 00039.

170. If general grounds of refusal such as para 322(1A) are found not to apply so as to exclude an applicant/appellant, then it follows that he has not been shown to have committed any wrongdoing and it would not be open to any decision-maker dealing with a future application from such a person to treat him or her for this reason as a wrongdoer who has used deception. Plainly, for example, in the event of a future entry clearance application, para 320(7A) could not be brought to bear on the basis of any such deception.

171. But in a case in which both general and substantive grounds are in play, a decision-maker is not entitled to find that an applicant/appellant meets the relevant substantive requirements of the Immigration Rules unless separately satisfied that he or she is eligible under the substantive rule. In general terms, it would seem odd that if a decision-maker shouts “fraud” but cannot prove it, he is thereby debarred from pointing to any shortcomings in the quality and reliability of the evidence.

172. We raised with the parties whether there was not a close analogy here with the view taken by the Tribunal in Tanveer Ahmed (Documents unreliable and forged) Pakistan* [2002] UKIAT 00439 in respect of evidence in asylum appeals. Tanveer Ahmed concerned an asylum claimant whose documentation had been challenged at the hearing before the Adjudicator as being false. In this case the Tribunal summarised its conclusions as follows.

“In summary the principles set out in this determination are:

1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.

2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.

3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2”.

173. Tanveer Ahmed has been approved on a number of occasions by the higher courts, most recently by the Court of Appeal in JN (Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 241. Clearly its reference in para 30 to a “higher standard of proof” being needed for the respondent to discharge the burden to prove fraud has now to be read in the light of Re:B (Children) and Re:Doherty. But we are not concerned here with what Tanveer Ahmed said about the standard of proof.

174. Mr Macdonald’s response to our question about Tanveer Ahmed principles was to argue that this case was only applicable to asylum appeals which were sui generis. We have several observations concerning that response.

175. First, it is true that as the text of para 38(1) of the determination makes clear, the Tribunal described the principles summarised as arising in “asylum and human rights” cases without reference to immigration cases. However, earlier on in the determination it drew on cases dealing with immigration as well as asylum and clearly saw itself as dealing with general issues of proof as raised by the Tribunal Procedure Rules then current. Further, the more detailed reasoning which was the subject of the para 38 summary contained no limitation to asylum and human rights cases. At paras 34-35 it stated:

“34. It is sometimes argued before Adjudicators or the Tribunal that if the Home Office alleges that a document relied on by an individual claimant is a forgery and the Home Office fails to establish this on the balance of probabilities, or even to the higher criminal standard, then the individual claimant has established the validity and truth of the document and its contents. There is no legal justification for such an argument, which is manifestly incorrect, given that whether the document is a forgery is not the question at issue. The only question is whether the document is one upon which reliance should properly be placed.

35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is a material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision maker should look at the evidence as a whole or in the round (which is the same thing).”

176. Second, the approach which has been taken in the Tribunal subsequently has been to apply Tanveer Ahmed principles both to immigration and asylum contexts: see e.g. OA (Alleged forgery; section 108 procedure) Nigeria [2007] UKIAT 00096.

177. Third, it seems to us there are good reasons why Tanveer Ahmed has been seen to have wider applicability. Of course, asylum appeals have a number of special features, not least that the standard of proof is lower than the normal civil standard and that an asylum claimant is not normally required to furnish corroboration of his claim. However, the underlying point relied on in Tanveer Ahmed is that a distinction has to be drawn between unreliability and falsity. The essential point made is that falsity is a narrower category than unreliability and that, just because the evidence does not suffice to establish falsity, does not mean that it cannot be considered unreliable.

178. In our view the same reasoning applies in non-asylum contexts. An appellant is required under substantive immigration rules to prove that he meets their requirements in full, and to discharge that burden his evidence must normally be considered reliable. In a case in which the respondent has alleged falsity in parallel, the reasons why an appellant’s evidence might be considered unreliable are not confined to ones that establish fraud or deception or misrepresentation, but can be based simply on such considerations as lack of credibility, internal contradictions or a mismatch between the account given and the likely facts. What basically matters is whether the evidence is sufficient.

179. Mr Macdonald’s principal response to such an approach was to highlight novel features of the Points Based System. In his view all that para 245Z required was that the specified documents had been submitted in accordance with Appendices A-C and the accompanying Policy Guidance. His submission has some attraction. Take the example of the issue of provenance of funds that quite often arises in cases concerned with “old-style” maintenance requirements under various immigration rules unrelated to the Points Based system. If a person’s claimed personal savings all stem from one recent large deposit, the decision-maker may treat this as evidence that that person is not in truth good for the money claimed. Under such “old-style” maintenance requirements there is clearly room for the exercise of individual judgment. Arguably under the “new-style” maintenance requirements exemplified by para 245Z(c), it is not open to a decision-maker to look behind the bank statements produced, unless he opts to apply general grounds of refusal.

180. Nonetheless we do not consider that such a submission can or does succeed.

181. One reason why we have come to this conclusion relates to a point we have already touched upon: the decision-maker’s own Policy Guidance contains a verification procedure and clearly envisages that even if falsity is not proved (but reasonable doubt exists), the result of verification may be that the evidence is seen as inconclusive and no points are to be awarded. The IDIs reflect a similar approach.

182. However, we do think that the fact that the Policy Guidance sets out criteria governing verification and other checks obliges decision-makers to follow that procedure rather than seek to apply Tanveer Ahmed criteria in abstracto. In particular, we think it important that if decision-makers have decided not to apply a general ground of refusal but still refuse an application for reasons relating to doubts about the reliability of the documents, they confine that to cases where, in line with the Policy Guidance, there were reasonable doubts that the document is genuine, leading to a verification check, and that check has been inconclusive (see paragraph 69 above).

183. In this way the principles in the Policy Guidance should, we consider, inform the way in which the Tribunal proceeds in an appeal against a points-based decision. Although the Policy Guidance is a document addressed to an applicant and is designed to tell the applicant what he or she is entitled to expect in terms of the processing of the application, the applicant is entitled to expect that similar principles should apply to any further assessment on appeal. In this way, the Policy Guidance can be seen as valuable particularisation of general Tanveer Ahmed principles. What this means in practice is that, in a points-based appeal, the Tribunal should not find that a document relied on by the appellant is incapable of scoring points unless (a) the respondent has proved it to be false; or (b) having considered all the evidence, the Tribunal is left with a reasonable doubt that the document is reliable.

184. Another reason, it seems to us, is that whilst rules such as para 245Z clearly do seek to eliminate the exercise of individual judgement by decision-makers, we do not think they succeed (or were intended to succeed) in eliminating it entirely. Let us suppose, for example, that in order to try and satisfy the requirement of having £800 in personal savings for 3 months before applying an indigent applicant borrows money from a friend, not with any intention of using the money for maintenance but purely as a device to enable him to show the sum of £800 in his bank account for the requisite period. It does not seem to us that the decision-maker is prevented by the rule as currently drafted from deciding that in fact that person did not have the level of personal savings as shown in the bank statements at the relevant time. In some cases of this type it may be considered that in presenting such statements the applicant has made false representations, but in other cases it may not be so clear-cut; and, if not clear-cut, a refusal may still be justified under the substantive rule. In other words we do not accept that the logic of the new-style rules is to require either that everything is to be taken at face value or that general grounds of refusal must be relied on. Under para 245Z there must still be a correspondence between the documentation and the underlying reality of a person having personal funds as maintenance.

185. That brings us to a third reason which is specific to the wording of para 245Z. We need at this point to refer again to the contents of Table 9 in the version in force at the relevant time (for its text see above para 64).

186. Table 9 does not simply require an applicant to produce/have produced the specified documents showing that the applicant has a relevant qualification. That only qualifies a person for the first 20 points. It also requires, in order to qualify for the second 20 points, that the applicant has “undertaken” “periods of UK study and/or research” and done so whilst he had (in this case) leave to enter or remain in the UK as a student, Tier 4 migrant or under part 8. Paras 79-81 of the Policy Guidance reflect similar considerations.

187. We recognise that it might be argued that the principal concern in the second and third boxes is to ensure the applicant studied for his award at a UK recognised or listed body and had valid leave in a relevant capacity at the relevant time, but even if we had accepted that that they are the sole concerns, such leave was only given on the basis that the person was meeting the requirements of the student or Tier 4 migrant or part 8 rules. However one looks at it, the requirement makes clear that the points are to be awarded on the basis that the applicant has undertaken study or research.

188. It seems to us that the last point encapsulates the reason why each appellant in these appeals must also fail under para 245Z(e), even if we had taken the view that the respondent had not discharged the burden of proof on him to show falsity on their part. Whether or not they used false representations or submitted false documents they are persons who have simply failed to show that they undertook the studies at CCOL which they claimed to have undertaken. The background evidence did not indicate that such courses were ever run and their own evidence was not credible.

189. For the above reasons the appeals of each of the three appellants are dismissed.

Signed

Senior Immigration Judge Storey