Tribunal decisions

The decision

IAC-AH-SC-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03170/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 14 June 2022
On the 08 August 2022

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

MR Bhupendrakumar Manibhai Patel
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms S Saifolahi, instructed by Olympus Solicitors
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of India. His date of birth is the 22 July 1983. In a decision promulgated on 15 March 2021 I set aside the decision of the First-tier Tribunal to dismiss the Appellant’s appeal (under Article 8 ECHR) against the decision of the SSHD on 6 February 2019. The SSHD conceded that the judge materially erred.
2. The Appellant arrived in the United Kingdom on 28 October 2009 with entry clearance as a Tier 4 (General) Migrant, valid from 13 October 2009 until 28 June 2012. On 14 May 2012 the Appellant applied for further leave to remain as a Tier 4 (General) Migrant which was granted from 6 August 2012 until 5 October 2014. In support of the application dated 14 May 2012, he produced a TOIEC certificate from Educational Testing Service (ETS) to support that he undertook an English Language Test, on 21 March 2012, at Premier Language Testing Centre (PLTC), which comprised speaking, listening, reading and writing elements. The Appellant then made a further in country application as a Tier 2 General Migrant, which was refused with no right of appeal on 26 November 2014. The SSHD reconsidered this application almost one year later, on 12 November 2015 and maintained the refusal in a decision dated 6 April 2016 with a right of appeal. The Appellant appealed against the decision of the SSHD. The First-tier Tribunal dismissed the Appellant’s appeal in a decision promulgated on 18 September 2017 (“the 2017 decision”). The Appellant next applied for leave to remain on Article 8 grounds on 23 July 2018. This application was refused by the SSHD on 6 February 2019.
3. It is the SSHD’s case that the TOEIC certificate was fraudulently obtained. It is the SSHD’s case that ETS undertook a check of the Appellant’s speaking test and voice verification software disclosed that there was significant evidence to conclude that the test was taken by a proxy. The SSHD had access to a revised lookup tool which can identify the number of tests taken at any given date and college by entering the college name and date. This disclosed that 32% of the results from the material day were deemed invalid. The total of all the tests taken at the college is 5,055 from which 75% of the test results were deemed invalid and 25% questionable. The SSHD’s case is that the Appellant cannot meet the requirements of the Immigration Rules (IR) with reference to 276ADE(1)(i) on the basis that the application falls for refusal on suitability grounds with reference to paragraph S-LTR of the Rules.
4. The First-tier Tribunal dismissed the Appellant’s appeal. The judge rejected that the Appellant genuinely sat the test. The Presenting Officer at the error law of hearing conceded that the First-tier Tribunal had not taken into account the Appellant’s evidence with reference to the Appellant’s witness statement wherein he gave a detailed account of attending PLTC on 21 March 2012.
5. Since the error of law decision the UT has promulgated two reported decisions: DK and RK ( Parliamentary privilege: evidence) [2021]UKUT 61 ( DK and RK 1) and DK and RK (ETS: SSHD Evidence, Proof) India [2022] UKUT 00112 (DK and RK 2). The headnote of the latter reads as follows:
1. The evidence currently being tendered on behalf of the Secretary of State in ETS cases is amply sufficient to discharge the burden of proof and so requires a response from any Appellant whose test entry is attributed to a proxy.
2. The burden of proving the fraud or dishonesty is on the Secretary of State and the standard of proof is the balance of probabilities.
3. The burdens of proof do not switch between parties but are those assigned by law.
6. The Appellant relied on a witness statement that was before the First-tier Tribunal of 10 August 2019. He submitted a further witness statement for the hearing before me dated 11 June 2022. His evidence is that he chose to sit the test at PLTC because it was close to where he was living at the time. He explained in some detail at [12] the circumstances of the test. He relied on a BBC article dated 9 February 2022 disclosing concerns in respect of ETS practices. I note from the Appellant’s application for leave to remain outside of the IR, he relied on “Human rights and compassionate grounds” asserting that he has a relationship with an EEA national, Miss Izabella, who is an Italian national and they wish to marry. Ms Saifolahi relied on her skeleton argument. Both representatives made detailed oral submissions.
7. The Appellant submitted that the 2017 decision should not be the starting point because five years has lapsed and there is a new legal landscape to apply following DK and RK 2. I do not accept this submission. Devaseelan [2002] UKAIT 702 applies. The 2017 decision is my starting point. The issue in that appeal was the same and the Tribunal in 2017 found that the SSHD had established that the Appellant obtained his TOEIC by the use of a proxy test taker. The judge applied SM and Qadir ( ETS – Evidence- Burden of proof) [2016] UKUT 229 and found that the SSHD had discharged the burden of proof. The appeal was determined on the papers at the request of the Appellant. While he had applied for an adjournment, his application was refused. The judge took into account that the Appellant had not given an account in his witness statement about how he travelled to the test centre, the type of questions that he was asked and how many students attended on the same day. The judge found that the Appellant had not provided an innocent explanation. While he has since then given more detailed evidence, there is no good reason why this was not before the judge in 2017. There was no successful application for permission to appeal again the 2017 decision. The Appellant relied on a more detailed witness statement before the First-tier Tribunal in 2019. However, he chose to have the appeal determined on the papers and was not cross-examined.
8. While the legal landscape has evolved, the legal framework has not materially changed. While DK and RK 2 has clarified that there is no switching of burdens of proof ( the UT rejected the three stage process), the burden of proof remains on the SSHD to prove deception. Ms Saifolahi relied on the particular circumstances of the Appellants in DK and RK and sought to distinguish them from the Appellant’s. However, cases are fact specific fall to be determined on their own facts and evidence.
9. The Appellant has now given significant detail about the hearing centre location, arrival details and the questions that he was asked. It is not challenged that he has successfully completed tests in listening, writing and reading. It is the speaking test only that is challenged by the SSHD. Moreover, the Appellant has evidence that he passed a degree in the United Kingdom which supports his English language ability albeit not specifically in 2012. There is little direct evidence before me specifically concerning the Appellant’s speaking ability in 2012 at the time of the test. In any event, there are numerous reasons why a person who could pass a test might nevertheless decide to cheat (SSHD v MA [2016] UKUT 450 (IAC) at para 57). I take into account the Appellant’s evidence that he attended the college because it was the closest one to where he was living. I have taken into account the details he has given about the test and centre. It is, however, reasonably likely that he has travelled to PLTC in 2012 because he has sat and passed tests which are not in issue in this case. Therefore it is not surprising that he can give details of the college.
10. A total of 32 % of the 114 speaking and writing tests taken at PLTC were deemed invalid. Overall 75% of the tests taken at PLTC were deemed invalid. The figures are not conclusive, although they are significant. The SSHD’s case concerns the Appellant’s speaking test. It is asserted that ETS has a record of it and using verification software is able to detect when a single person is undertaking multiple test. I attach significant weight to the Appellant having not asked for a copy of the recording. While the Appellant expresses frustration in his most recent witness statement, querying how he could establish that he took the test, there is no explanation why he has not asked for the recording. In respect of the evidence of voice recording, I take into account what the UT said in DK and RK 2 at [103];
“… the voice recognition process “is clearly and overwhelmingly reliable in pointing to an individual test entry as the product of a repeated voice. By "overwhelmingly reliable" we do not mean conclusive, but in general there is no good reason to doubt the result of the analysis. “
11. The generic evidence is sufficient to discharge the burden of proof. The Appellant relies on what could be characterised as anomalies in the evidence spefically at RB/41 which is a document that records the results of speaking and writing tests and not reading or listening. It may be that speaking and writing are documented separately to the reading and listening test scores. In any event, it is the speaking test which is in issue in this case, not the reading or listening. There are five recorded results for the speaking and writing tests, all of which are marked invalid. I do not accept that this establishes a lack of clarity in the SSHD’s evidence that would undermine it. The results are clearly marked invalid. While the SSHD relies on the speaking test only, the evidence in this respect is supported by the evidence of voice recognition. The Appellant relied on this document because it does not identify his nationality under the heading nationality, which is blank. He also relies on the name recorded on this document not including Manibhai. Considering the I do not find that the issues taken by the Appellant concerning this document when considered in the round materially undermine the veracity of the SSHD’s evidence. I am satisfied that the individual identified in the document is the Appellant.
12. In respect of the article from the BBC, it was not evidence that was before the First-tier Tribunal or the UT in DK and RK 1 or 2. However, given what the UT said in DK and RK 1 about the admissibility of the APPG report, I attach limited weight to this evidence. The point is not raised in Ms t Taking into account all the evidence including that which was not before the First-tier Tribunal in 2017 or 2019, I find that the SSHD has discharged the burden of proof. I do not accept the Appellant’s evidence. I find that he used a proxy test taker in 2012.
13. The Appellant cannot meet the IR. He relies on very significant obstacles to integration into India, however, the evidence falls very short of establishing this. He has been out of India for 12 years. However, his parents are in India. He has not advanced evidence of family life in the United Kingdom. The Appellant stated that he has not been able to get married, but there is no evidence that he is still in a relationship with an Italian national. He has not advanced evidence of a significant private life, albeit I take into account that he has been here since 2009. In any event, I accept that removal will interfere with the Appellant’s private life. I have taken into account what the Appellant has stated in his witness statement about having “nothing left in India having spent the most important years of my life in the United Kingdom”, however there is no evidence to support this claim. Any interference is proportionate, properly taking into account S117B of the 2002 Act.
Notice of Decision

The appeal is dismissed under Article 8 ECHR.

Signed Joanna McWilliam Date 4 July 2022

Upper Tribunal Judge McWilliam