HU/05732/2020

• Status of case: Unreported
• Hearing date: 8 Jun 2022
• Promulgation date: 18 Aug 2022
• Publication date: 18 Jul 2024
• Last updated on: 18 Jul 2024

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05732/2020


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On the 8 June 2022
On the 18 August 2022



Before

UPPER TRIBUNAL JUDGE STEPHEN SMITH

Between

Basanta Sunar
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr J. Chhotu, Counsel (direct access)
For the Respondent: Mrs A. Nolan, Senior Home Office Presenting Officer


DECISION AND REASONS
1. This decision is the remaking of the appeal brought by the appellant against a decision of the Secretary of State dated 13 March 2020 to refuse his human rights claim, made on 13 January 2020. The appeal was brought under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). It was originally heard by First-tier Tribunal Judge Suffield-Thompson (“the judge”) and dismissed in a decision promulgated on 25 June 2021. By a decision dated 1 March 2022, I set aside the decision of the First-tier Tribunal on the basis that it involved the making of an error of law, with certain findings of fact preserved. I gave directions for the appeal to be re-heard in this tribunal, and it was against that background that the matter resumed before me on 8 June 2022. I reheard the appeal pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
2. My decision of 1 March 2022 (“the error of law decision”) may be found in the Annex to this decision.
FACTUAL BACKGROUND
3. The appellant is a citizen of Nepal. He was born in December 1981. I summarised the factual background to these proceedings in the following terms, at paragraphs 2 to 4 of the error of law decision:
“2. The appellant entered the United Kingdom as a student in September 2009 with leave in that capacity that was extended until 14 September 2014. He has not held leave since.
3. The central issue in the appeal before the judge was whether the appellant had cheated in a secure English language test administered by the organisation called Educational Testing Service (“ETS”). On 19 June 2013 the appellant took an English speaking test at the Premier Language Training Centre in Barking, London. He passed, and was issued with a “Test of English for International Communication” (“TOEIC”) certificate, which he submitted to the Secretary of State with an application to renew his leave to remain, made on 13 September [2013]. The application was refused, as was a subsequent application for leave outside the rules, submitted on 2 February 2016. The applicant brought judicial review proceedings against the Secretary of State, which were settled by consent in December 2019.
4. In January 2020 the appellant made a further human rights claim, and it was that refusal decision that was under appeal before the judge below. The Secretary of State refused the claim on suitability grounds, as a result of the appellant’s alleged use of a proxy test-taker in the TOEIC speaking test in June 2013, and also on the basis that the appellant did not meet the requirements of the Immigration Rules, and there were no exceptional circumstances such that it would be unduly harsh for him to be removed to Nepal.”
4. I found that the judge had made an error of fact in her analysis of whether the appellant had used a proxy test taker at the English language test on 19 June 2013, in that she ascribed significance to the appellant accepting that the voice on the recording of the test was not his. There had, in fact, been no recording, and the appellant had not accepted that the voice was not his, with the consequence that that mistake of fact contaminated the judge’s analysis of that issue. I set the decision aside.
5. I preserved the judge’s findings at [50] that the appellant’s then representative had accepted that he would not face “very significant obstacles” to his integration in Nepal for the purposes of paragraph 276 ADE(1)(vi) of the Immigration Rules. I also preserved the judge’s conclusion at [63], in which she conducted her own analysis of the appellant’s prospective circumstances in Nepal and concluded that he would be well-placed to resume life in the country upon his return. I gave directions for the appellant to rely on new evidence pursuant to rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, if so advised.
Documentary evidence
6. Pursuant to the directions given in the error of law decision, on 19 April 2022 the appellant applied for an extension of time within which to obtain the recording of his speaking test from ETS, sought disclosure from the Secretary of State of her records relating to the TOEIC “tape”, and applied to adduce evidence from Mr Plowright, his counsel before the First-tier Tribunal.
7. At the resumed hearing, Mr Chhotu, who represents the appellant on a direct access basis, handed up a revised bundle, and helpfully provided a partially bound copy of the respondent’s bundle. I additionally had access to all the materials that had been before the First-tier Tribunal.
The issues in this appeal
8. In the human rights claim he made on 13 January 2020, the appellant stressed the length of his residence in the UK (ten years), denied having used a proxy in a TOEIC test, and underlined his ability to speak English. The appellant was on notice that the TOEIC test may have been an issue since the refusal of an earlier application, in circumstances that did not attract a right of appeal, on 29 September 2014. He submitted that he would face very significant obstacles to his integration in Nepal, since he had lost all familiarity with the country. He would not be able to work there, and, in any event, assisted his father with his day to day life (paragraph 21). He wanted to contribute to UK society by working and paying taxes.
9. The Secretary of State opposed the appellant’s appeal on largely the same basis that she refused the human rights claim on 13 March 2020, as summarised at [4] of the error of law decision.
10. Against that background, the focus of the resumed hearing was:
a. the Secretary of State’s case, and the appellant’s response to it, that he had used a proxy in a TOEIC test at the Premier Language Centre, Barking, London, on 19 June 2013, and so failed to meet the suitability requirements under S-LTR4.2.;
b. the fairness or otherwise of the appellant not having the recording of his claimed participation in the test on 19 June 2013, whether through the failures of ETS or the Secretary of State; and
c. whether the appellant’s counsel before the First-tier Tribunal had conceded that paragraph 276ADE(1)(vi) could not be met, and whether the appellant would be permitted to resile from that concession, if so made.
The hearing
11. The appellant gave evidence in English. He adopted his witness statements dated 14 February 2022 and 6 June 2022, and the undated statement he relied upon before the First-tier Tribunal. I permitted a number of additional, clarificatory questions during the appellant’s evidence in chief, and he was cross-examined. I heard submissions. I do not propose to set out the entirety of the evidence or submissions here but will outline them to the extent necessary to reach and give reasons for my findings, below.
The law
12. This is an appeal brought under Article 8 of the European Convention on Human Rights ("ECHR"). The essential issue for my consideration is whether it would be proportionate under the terms of Article 8(2) of the Convention for the appellant to be removed, in light of the private life he claims to have established here. This issue is to be addressed primarily through the lens of the Immigration Rules, and also by reference to the requirements of Article 8 of the Convention directly (see Razgar [2004] UKHL 27 at [17]).
13. The relevant Immigration Rules are contained in paragraph S-LTR.4.2. of Appendix FM:
“The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful).”
14. Also relevant is paragraph 276ADE(1)(vi), which concerns whether an individual faces “very significant obstacles” in the country to which he would have to go if required to leave the UK.
15. The appellant bears the burden of demonstrating that Article 8 ECHR is engaged. Once he has done so, it is for the Secretary of State to establish that the appellant’s removal would be justified pursuant to paragraph (2) of the Article.
16. In addition, since the Secretary of State has alleged deception, she bears the burden of proving that allegation. The position was recently summarised in the following terms in the judicial headnote to DK & RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 IAC (“DK and RK No. 2”):
“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.”
DISCUSSION
17. I did not reach my findings in the case until having considered the entirety of the evidence, in the round.
Article 8 engaged
18. I find that the appellant’s removal would amount to an interference with the “private life” he has established in the UK since his arrival in September 2009. His removal would have consequences of such gravity so as potentially to engage the operation of article 8. It would be in accordance with the law, in the sense that it would be governed by a legal framework coupled with a right of appeal to this Tribunal. It would, in principle, be capable of being regarded as necessary in a democratic society on the basis of one of the derogations listed in Article 8(2) ECHR. The remaining question is whether the appellant’s prospective removal would be proportionate sought to be achieved. To address that question, I will analyse the appellant’s prospective removal under the Immigration Rules and outside the rules.
The Immigration Rules
Paragraph S-LTR.4.2.
19. I will first address the Secretary of State’s allegations that the appellant used a proxy in a TOEIC test at the Premier Language Centre on 19 June 2013: the legal burden is on the Secretary of State to establish these allegations to the balance of probabilities standard. If the Secretary of State establishes, to the balance of probabilities standard, that the appellant used a proxy test taker on that date, and that he relied upon the ensuing certificate in his application for leave to remain dated 13 September 2013, the Secretary of State will have succeeded in establishing that paragraph S-LTR.4.2. is engaged. It is a discretionary ground for refusal, in that it is provides that an application “may” be refused if the paragraph applies: I will return to this point.
20. The evidence relied upon by the Secretary of State consists of the so-called “generic evidence” relied on in cases of this nature, plus evidence individual to this appellant, in the form of the ETS “lookup tool”, exhibited by the statement of Kelvin Hibbs, a senior caseworker in the Home Office. Mr Hibbs states that lookup tool demonstrates that the speaking and writing tests taken by the appellant at the Premier Language Training centre on 19 June 2013 were “invalid”.
21. The Secretary of State also relies on a report entitled ‘Project Façade – criminal inquiry into abuse of the TOEIC’ focussing on the Premier Language Centre in Barking. There was no challenge to the report. At paragraph 11, the report states that, between 20 March 2012 and 5 February 2014, the Premier language training centre undertook 5,055 TOEIC speaking and writing tests, of which 3,780 were identified as “invalid” by ETS, a total of 75%, and the remaining 25%, 1,275, were categorised as “questionable”. The conclusion of the report is that that there was “organised and widespread” abuse of TOEIC testing at the centre.
22. I find that the Premier Language Centre was, to adopt the terminology of DK and RK (No. 2) at paragraph 119, a “fraud factory”. I find that the Project Façade report was entitled to describe the misconduct at the Premier language centre as “organised and widespread”.
23. I find that in light of the factual analysis in DK and RK (No. 2), that evidence relied upon by the Secretary of State is, in principle, “amply sufficient” to “require a response” from the appellant (see the judicial headnote, at [3]). As the Court of Appeal recently confirmed in Secretary of State for the Home Department v Halima Akter and others [2022] EWCA Civ 741 at paragraph 29, where the issues in this case arise from the same factual matrix as the evidence in DK and RK (No. 2), the case has precedential authority.
24. The appellant vehemently denies the allegations. In his written and oral evidence he maintains that he has been unfairly required to respond to them, as the Secretary of State has not disclosed to him or his current or previous legal representatives the alleged voice recording. He maintained that his entire life has been “ruined” by the allegation that he used a proxy, and that he is marred by the allegation against him of dishonesty. He has engaged in correspondence with the Secretary of State attempting to elicit a copy of the recording, to no avail. He invited me to make a finding that there was no evidence of any tape or other recording of his participation in the test and that, as such, there is no evidence to justify the Secretary of State’s invocation of paragraph S–LTR.4.2.
25. I deal with the fairness issues as follows. There is no requirement for the Secretary of State to obtain the recording of a TOEIC candidate’s test in an appeal against the refusal of a human rights claim. The duty to which the Secretary of State is subject is not to “knowingly mislead”. See DK and RK (No. 2) at paragraph 112:
“Nor, we should add, and despite what is suggested by [counsel for one of the appellants], is there any breach of any duty of candour owed by the Secretary of State in these cases. That duty is a feature of judicial review proceedings: in an appeal the equivalent duty is to ensure that the Secretary of State does not 'knowingly mislead' ( R v SSHD ex parte Kerrouche (No 1) [1997] Imm AR 610). But even if there were a duty of candour here, there is no basis for saying that it has been breached. There is nothing apparently available to the Secretary of State that ought to have been disclosed to the court and has not been.
26. There is no suggestion that the Secretary of State holds the recording of the appellant’s purported test. The generic evidence relied upon by the Secretary of State sets out in significant detail the steps taken by ETS to analyse the recordings held on its systems, and the process for conveying the product of that analysis to the Secretary of State. The recordings themselves are not passed to the Secretary of State. The refusal letter dated 13 March 2020 expressly stated that ETS conducted analysis of the recording “and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker…” (emphasis added). At no stage is there any suggestion that the recordings were, or could be, conveyed to the Secretary of State. The Secretary of State is not under a duty to disclose what she does not hold. Nor is she under a duty to obtain material for an appellant which may assist his or her case in these circumstances.
27. Some confusion may have arisen at the hearing after Mrs Nolan put to the appellant in cross examination that he had not approached the law firm Jones Day Solicitors which is said to have been engaged by ETS, and which, she put to the appellant, would have been able to secure the recording on his behalf, had he requested it. Mr Chhotu submitted that the line of questioning adopted by Mrs Nolan demonstrated that the Secretary of State had unfairly withheld from the appellant details of where he would have been able to access the recording, and that she had withheld that information prior to the hearing for tactical reasons. He submitted that it was anathema to the overriding objective of this tribunal to tolerate the Secretary of State’s practice of withholding these essential details until the very last minute, and then to seek to impugn the appellant’s credibility on the basis of his failure to obtain material which, until the questions were put to him in cross examination, he had no awareness of.
28. In my judgment, no unfairness arose, and the Secretary of State did not breach her duty of disclosure to the appellant. In addressing this issue, it is important to distinguish the two parallel considerations at play. On the one hand, there is the fairness point relied upon by Mr Chhotu; the question is whether the appellant has been denied a fair hearing on account of the fact it was not until cross-examination that he was aware of the ability to locate a copy of the recording in this way? On the other hand, there is the substantive impact, on the appellant’s credibility, of the steps (if any) he took to obtain the recording, from any source.
29. I accept that neither the appellant, nor, it seems, Mr Chhotu, knew that Jones Day had been appointed by ETS to field enquiries of this nature. To the extent that Mrs Nolan sought to impugn the appellant’s credibility for having not contacted Jones Day specifically, I find that his credibility is not harmed. I accept that it would be unfair to hold against the appellant his failure to take specific steps of which he was not aware. To that extent, no unfairness arose from this line of questioning, since I accept that it would be unfair to hold the appellant’s lack of knowledge of this specific process against him.
30. I do not consider that the Secretary of State could be said knowingly to have misled the appellant about the apparent ability he enjoyed to request a copy of the recording(s) through Jones Day solicitors. The appellant sent an email to the Secretary of State’s email inbox used for responding to directions issued by this tribunal on 26 March 2022 in these terms:
“I have attempted to obtain copies of my ETS documents, but the ETS telephone number does not longer exist [sic]. I am now requesting the Home Office to provide a copy of the ETS tests that the Home Office is relying upon.”
The Secretary of State did not reply.
31. As stated above, there is no suggestion that the Secretary of State has ever held copies of the recordings in question. If follows that she did not knowingly mislead the appellant by failing to provide material that was not in her possession. The case advanced by Mr Chhotu is that, upon being asked by the appellant some seven and a half years after the original allegations were made for copies of the recordings, by failing to point out to the appellant that he could approach Jones Day, the Secretary of State knowingly mislead him, and breached her duties towards him. I reject this submission. The request to the Secretary of State was for the Home Office to provide copies of recordings that it did not hold. By not responding the Secretary of State cannot be said knowingly to have misled the appellant, since she did not hold the very recordings he asked her to provide.
32. I reject Mr Chhotu’s submission that it was a breach of the Secretary of State’s disclosure duties for her not to address the separate issue of where, if she did not hold the recordings, the appellant may have sought to obtain them. The appellant did not put that question to the Secretary of State; his approach to the Secretary of State came very late in the day and was premised on the footing that the Secretary of State held material not in her possession. There can be no suggestion that the Secretary of State knowingly sought to mislead the appellant by not addressing a question that was not put to her.
33. I therefore turn to Mr Chhotu’s final point concerning fairness, namely that it was unfair for the appellant not to have the opportunity to seek the recording directly from Jones Day. I reject the submission that the hearing was unfair, for the following reasons.
a. First, Mr Chhotu expressly did not apply for an adjournment. He stated that he was content to proceed.
b. Secondly, I have accepted that the appellant’s credibility is not harmed on account of his failure to contact Jones Day specifically, so no unfairness can arise on that account.
c. Thirdly, it is important to recall that the Secretary of State first refused an application for leave to remain on the basis of the TOEIC issue as long ago as 29 September 2014. The evidence before me is that the first time the appellant sought to engage with the Secretary of State to obtain a copy of the recording of the test was by email on 22 March 2022, and only then by using an email address normally only used for this tribunal to send directions to the Secretary of State. He has known since the decision of Judge Suffield Thompson on 25 June 2021 that the issue of the recordings would be a potentially significant issue in the resolution of his appeal. The appellant’s evidence was that he commissioned his former legal representatives to obtain a copy of the recording, but they failed to do so: I will return to this point. The appellant has had plenty of time to take steps to seek the recording.
34. I therefore turn to the appellant’s evidence. In his statement before the First-tier Tribunal (“the FTT statement”) he described in detail the process of taking the test and what took place. This evidence is of little relevance to the underlying issue of whether he did, in fact, take the test, since the evidence in DK and RK (No. 2) is that the candidates attended the test centre alongside proxy test takers.
35. A point of significance in relation to the appellant’s attempts to obtain the recordings is that the FTT statement is completely silent in about the attempts he now claims that he took at the time to obtain a copy of the recording, or otherwise seek redress from the Premier Language College. Under cross-examination before me, he claimed to have contacted the college by telephone, describing a conversation in which the college told him that they had “a problem”, but that they could not say anything. By contrast, at paragraph 34 of the FTT statement, he said, “I paid a fee to sit the exam after which I had no contact with the specific college and there am unaware of the allegations.” That was also his oral evidence before Judge Suffield-Thompson: see bullet point four at paragraph 43 of her decision. Although that decision has been set aside, it represents a record of the evidence the appellant gave on these issues on that occasion.
36. Under cross-examination, the appellant said that “at the time” the allegations were first made against him, he contacted his then lawyers, who advised him that they had attempted to make contact with ETS directly. Again, this is a feature of the appellant’s oral evidence that is absent from any of the written evidence.
37. I find that the appellant only began to take steps to obtain the recording of the tests in March 2022. Despite the original allegations being made against him over seven years previously, he did nothing at the time, or for seven years thereafter. I reject the appellant’s oral evidence that he contacted the college at the time of the original allegations, and prefer his written evidence prepared for the First-tier Tribunal, which stated that he had no further contact with the college after the test. There is no other account the appellant is able to highlight to demonstrate that he took the steps he now claims to have taken to obtain a copy of the recordings. In particular, although the appellant seeks to attribute the failure to obtain the recordings to his former solicitors, he has taken no steps to complain against them, or otherwise refer them for regulatory investigation. When challenged on this point under cross-examination, the appellant said that the reason he had not done so it was because he “totally trusted” his then solicitor. In my judgment, that explanation is inconsistent with the allegation the appellant now seeks to advance against his former solicitors of a serious dereliction in their duty. I reject the appellant’s evidence in this respect. I find that it is more likely than not that he did not seek to enlist the assistance of his solicitors to obtain a copy of the recordings.
38. I note that the appellant claims to have had no motive or requirement to cheat and much to lose. However, it is by no means the case that his English was good. He struggled throughout the hearing before me, as he appears to have done before Judge Suffield-Thompson. His accent was very strong. His grammar is poor. Around nine years have elapsed since he claimed to have passed the speaking test with a score of 200 (that is, full marks); one would expect even better spoken English in light of the passage of time. I find that someone of the appellant’s poor English skills would have had a motive to cheat. The fact that the appellant had lots to lose is nothing to the point. The widespread evidence of TOEIC cheating suggests that many thought they could do so with impunity.
39. Drawing this analysis together, therefore, I find that the appellant has only taken very recent steps to obtain the recording of the test that he claims to have attended in June 2013. The other steps he claims to have taken, namely by contacting the college and through his former solicitors, lack credibility. In my judgment this is a significant feature of the appellant’s conduct which causes me to doubt his overall credibility in relation to his case that he did sit the test on 19 June 2013 himself without the use of a proxy. That is not to say that the legal burden of disproving the allegations falls on the appellant’s shoulders: it remains with the Secretary of State at all times. However, pursuant to DK and RS (No. 2), the appellant can be expected to respond to the allegations. I find his conduct and explanations in response to the allegations to lack credibility.
40. Against that background, I return to the evidence of the Secretary of State. I will not set it out in detail here since it is well documented in DK and RK (No. 2). Of significance for present purposes are the conclusions in DK and RK (No. 2); see paragraph 127:
“Where the evidence derived from ETS points to a particular test result having been obtained by the input of a person who had undertaken other tests, and if that evidence is uncontradicted by credible evidence, unexplained, and not the subject of any material undermining its effect in the individual case, it is in our judgment amply sufficient to prove that fact on the balance of probabilities.” (emphasis added)
41. See also paragraph 129:
“In these circumstances the real position is that mere assertions of ignorance or honesty by those whose results are identified as obtained by a proxy are very unlikely to prevent the Secretary of State from showing that, on the balance of probabilities, the story shown by the documents is the true one. It will be and remain not merely the probable fact, but the highly probable fact. Any determination of an appeal of this sort must take that into account in assessing whether the respondent has proved the dishonesty on the balance of probabilities.” (emphasis added)
42. In my judgment, it is highly probable that the appellant used a proxy at the Premier Language College on 19 June 2013. I reject the explanation proffered by the appellant. I find that the Secretary of State has proved her case, to the balance of probabilities standard.
43. It follows that paragraph S-LTR.4.2. was, in principle, engaged. The appellant made false representations in the application for leave to remain he submitted on 13 September 2014.
44. Since paragraph S-LTR.4.2. is discretionary, I must address whether it should be invoked. Having set out the evidence to demonstrate that the appellant relied on a fraudulent certificate, the refusal letter dealt with the exercise of discretion in the following terms:
“In fraudulently obtaining a TOEIC certificate in the manner outlined above, you willingly participated in what was clearly an organised and serious attempt, given the complicity of the test centre itself, to defraud the SSHD and others. In doing so, you displayed a flagrant regard for the public interest, according to which migrants are required to have a certain level of English language ability in order to facilitate social integration and cohesion, as well as to reduce the likelihood of them being a burden on the taxpayer.”
45. I agree with that analysis and adopt it for the purposes of my own assessment. I find that it is appropriate to invoke paragraph S-LTR.4.2.
Very significant obstacles and the ‘concession’
46. A significant feature of the appellant’s case before me was that his counsel before the First-tier Tribunal, Mr Plowright, made a concession that he was not authorised to make that the appellant would not face very significant obstacles to his integration in Nepal, for the purposes of paragraph 276ADE(1)(vi) of the Immigration Rules.
47. On one view, this is a non-issue in light of two factors. First, since the appellant cannot meet the suitability requirements of the Immigration Rules in light of my analysis above, any analysis of paragraph 276ADE(1)(vi) is rendered otiose. Secondly, the preserved findings of fact at paragraph 63 of the judge’s decision were reached the context of an assessment of Article 8 ‘outside the rules’, which entailed the judge analysing whether it would be “unduly harsh” for the appellant to return to Nepal in any event. Those findings were not reached on the basis of any apparent concession on behalf of the appellant, but by reference to the judge’s unchallenged findings of fact; those findings would be determinative of a finding of “very significant obstacles” against the appellant in any event. The judge reached the following findings:
“The appellant claims that he is highly educated having a degree from Nepal and many qualifications from colleges [in] the UK and there is nothing in the evidence before me to suggest he would not be able to obtain employment to support himself on return. He is a single man with no claimed health problems. He is clearly resourceful, having been able to maintain himself for many years in London. These factors would stand him in good stead on return. The appellant speaks Nepali and although he has been in the UK for 15 years the evidence before me from his friends indicates that he operates almost exclusively within the Nepalese community. He has lived in Nepal for the majority of his life [and] so [will] be familiar with social and cultural norms in that country even though he has been away from his home country for a considerable period. He has a mother and brother there with whom he can live.”
48. I can therefore deal briefly with this aspect of the appellant’s case. I begin by recalling what the judge said about the ‘concession’, at [50]:
“In this case Mr Plowright accepted that if the tribunal found that he had cheated on his test then he accepted that there were no very significant obstacles under paragraph 276ADE(1)(vi) nor that he has any family members here in the UK.”
49. It is clear from correspondence between Mr Plowright and the appellant dated 15 March 2022 that Mr Plowright’s view about the evidence was that it did not enable him properly to argue that the appellant would face very significant obstacles to his integration in Nepal. It appears that Mr Plowright did not so much as make a formal concession, but rather, pursuant to his duty to the tribunal, accepted what the parameters of the evidence were, and did not seek to invite the judge to reach findings that would have been wholly unmerited on the evidence. He was right to do so.
50. However, it was plain to me at the resumed hearing that the appellant had a strong (albeit not well-founded) sense of injustice arising from what took place below. This is more likely to have arisen from his misunderstanding at the distinction between a concession being made and a point not being pressed.
51. As I confirmed to the appellant at the hearing, I allowed him to withdraw the ‘concession’ made at the First-tier Tribunal concerning paragraph 276ADE(1)(vi), to the extent one was made. There was no prejudice to the respondent in permitting the appellant to do so, since he could not succeed under the rules in any event, and the judge’s preserved findings at [63] remain intact.
52. Approaching the issue of paragraph 276ADE(1)(vi) afresh, therefore, I find that the appellant cannot succeed under this paragraph. This is because he has not met the suitability requirements as set out above.
53. In any event, pursuant to the judge’s analysis at [63], there is no rational basis upon which the appellant can demonstrate the presence of very significant obstacles to his integration in Nepal. In additional evidence in chief, the appellant said that his mother has sadly died, although there is no documentary evidence of this, and it did not feature in his witness statement dated 6 June 2022. Even assuming that the appellant’s mother has died, that will not affect his integration to Nepal; the preserved findings reached by the First-tier Tribunal are that the appellant, as a single man, will not experience health problems, and will be able to work. He is resourceful. He speaks Nepali. The evidence was that most of his friends are from the Nepalese community. He will be familiar with the social and cultural norms of the country. He still has a brother in Nepal with whom he can live.
54. Considering the preserved findings of fact at [63] with the additional evidence now before me, I find that the appellant would not face very significant obstacles to his integration in Nepal, even putting to one side the fact that paragraph 276ADE(1)(vi) is not available to him on suitability grounds.
Article 8 outside the rules
55. Save for the death of his mother, the appellant has not advanced any reasons as to why I should depart from Judge Suffield-Thompson’s analysis of why it would not be unduly harsh for him to return to Nepal. The death of his mother does not detract from his ability to live with his brother, if he so chooses.
56. I will approach Article 8 outside the rules through a ‘balance sheet assessment’.
57. Factors militating in favour of the appellant’s removal include:
a. The public interest in the maintenance of effective immigration controls. This is a statutory consideration pursuant to section 117B(1) of the 2002 Act.
b. The appellant does not meet the requirements of the Immigration Rules, for the reasons given above.
c. The reason the appellant is incapable of meeting the rules is because he used a proxy in an English language test taken at the Premier Language Centre on 19 June 2013. This militates heavily in favour of his removal.
d. The appellant’s immigration status has been at best precarious and is currently unlawful. It attracts little weight: see section 117B(4)(a) and (5) of the 2002 Act.
58. Factors mitigating against the appellant’s removal include:
a. The appellant has lived in the United Kingdom since September 2009.
b. Although he will not face “very significant obstacles” to his integration in Nepal, he nevertheless has a subjective fear that his reintegration in the country will be a very difficult process.
c. The appellant’s strong desire is to remain in the United Kingdom, to complete his studies, and to secure work enabling him to contribute to the economy.
d. The appellant speaks English which is a neutral factor under section 117B(2) of the 2002 Act.
e. There is no evidence that the appellant is currently dependent upon public funds, which is a neutral factor under paragraph 117B(3) of the 2002 Act.
59. Drawing this analysis together, I find that the reasons in favour of removing the appellant outweigh those in favour of not doing so. The appellant used a fraudulently obtained TOEIC certificate in an attempt to deceive the Secretary of State into granting him leave to remain to which he was not otherwise entitled. I accept that it has taken a number of years for that allegation to be the subject of judicial scrutiny, but that is not capable of outweighing the strong public interest which counts against permitting the appellant to remain in the country. For the reasons given above his removal to Nepal will not be unduly harsh and he will not face very significant obstacles to his integration.
60. I find that the appellant’s removal will be proportionate for the purposes of Article 8 (2) ECHR.
61. This appeal is dismissed.
Notice of Decision
The decision of Judge Suffield-Thompson involved the making of an error of law and is set aside.
I remake the decision and dismiss the appeal.
No anonymity direction is made.

Signed Stephen H Smith Date 4 August 2022
Upper Tribunal Judge Stephen Smith
TO THE RESPONDENT
FEE AWARD
As I have dismissed the appeal there can be no fee award.

Signed Stephen H Smith Date 4 August 2022
Upper Tribunal Judge Stephen Smith


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05732/2020


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 17 February 2022, via Microsoft Teams


…………………………………


Before

UPPER TRIBUNAL JUDGE STEPHEN SMITH

Between

Basanta Sunar
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr J. Chhotu, Counsel (direct access)
For the Respondent: Ms S. Cunha, Senior Home Office Presenting Officer


DECISION AND REASONS
1. This is an appeal against a decision of First-tier Tribunal Judge Suffield-Thompson (“the judge”) promulgated on 25 June 2021, in which she dismissed an appeal of the appellant, a citizen of Nepal born in December 1981, against a decision of the Secretary of State to refuse his human rights claim, dated 13 March 2020.
Factual background
2. The appellant entered the United Kingdom as a student in September 2009 with leave in that capacity that was extended until 14 September 2014. He has not held leave since.
3. The central issue in the appeal before the judge was whether the appellant had cheated in a secure English language test administered by the organisation called Educational Testing Service (“ETS”). On 19 June 2013 the appellant took an English speaking test at the Premier Language Training Centre in Barking, London. He passed, and was issued with a “Test of English for International Communication” (“TOEIC”) certificate, which he submitted to the Secretary of State with an application to renew his leave to remain, made on 13 September 2014. The application was refused, as was a subsequent application for leave outside the rules, submitted on 2 February 2016. The applicant brought judicial review proceedings against the Secretary of State, which were settled by consent in December 2019.
4. In January 2020 the appellant made a further human rights claim, and it was that refusal decision that was under appeal before the judge below. The Secretary of State refused the claim on suitability grounds, as a result of the appellant’s alleged use of a proxy test-taker in the TOEIC speaking test in June 2013, and also on the basis that the appellant did not meet the requirements of the Immigration Rules, and there were no exceptional circumstances such that it would be unduly harsh for him to be removed to Nepal.
5. The judge identified that the three issues for resolution were whether the appellant met the Immigration Rules, whether he cheated in the TOEIC test in 2013, and whether it would be a breach of Article 8 of the European Convention on Human Rights for the appellant to be removed from the UK. See [22].
6. Having directed herself concerning the legal framework for considering appeals involving allegedly “invalid” TOEIC certificates, the judge reached her operative credibility findings concerning the appellant’s alleged use of the proxy test taker on 13 June 2013 at [43]. The judge rejected the “innocent explanation” the appellant had advanced to refute the Secretary of State’s allegations against him. Her reasons included the following: the prevalence of deception at the Premier English Language College, the fact the appellant did not attempt to contact the college when presented with the allegations of deception, and the fact he had not sought to retake the test. The judge found some aspects of the appellant’s evidence to have been learnt from a “script”, rather than being genuine. The appellant’s English was poor. He struggled to understand some questions and his ability to speak was, at times, also very poor. His ability in the language was at odds with the very high test results he purportedly obtained in the TOEIC test. His evidence had been contradictory and inconsistent.
7. Two of the reasons given by the judge lie at the heart of the appellant’s appeal. In the third unnumbered bullet point at [43], the judge said:
“The appellant accepts that the voice on the audio recording which has been attributed to his test is not his voice.”
I refer to this sentence as “the third bullet point”.
8. Then, at the fifth unnumbered bullet point, the judge said:
“I acknowledge that ultimately the voice recording itself might prove to be of little value. If the voice recording was not of the appellant that would not necessarily be conclusive proof of deception. As the Upper Tribunal found in MA at [11] to [18] having considered extensive evidence from three experts they concluded there were ‘…enduring unanswered questions and uncertainties relating in particular to systems, processes and procedures concerning the TOEIC testing, the subsequent allocation of scores and the later conduct and activities of ETS’ [47]. However, when looking at the circumstances and evidence in this case in the round I find the appellant’s failure to provide evidence that he requested the voice recording from ETS undermines his account and the innocence of his explanation when set against the evidence of cheating at Premier Language College. On balance, I find the appellant’s failure to obtain the recordings because he knew the voice on the recording would not be his, and I have given this weight in my assessment of the evidence as a whole.” (Emphasis original).
I refer to this sentence as “the fifth bullet point”.
9. Having rejected the appellant’s claimed “innocent explanation”, the judge found that he did not satisfy the suitability criteria contained in the Immigration Rules. In relation to his likely reception in Nepal, the judge recorded the following submission by Mr J. Plowright, Counsel who appeared on behalf of the appellant at the remote hearing before her:
“[50] In conclusion, I find the respondent’s grounds for refusing his human rights application on suitability grounds (paragraph S-LTR.1.6) are made out. There is, therefore, no requirement for me to go on to consider whether the remaining provisions of paragraph 276B or 276ADE(1)(vi) are met in his case. In this case Mr Plowright accepted that if the tribunal found that he had cheated on his test then he accepted that there were no very significant obstacles under paragraph 276ADE(1)(vi) nor that he has any family members here in the UK.”
10. The judge dismissed the appeal.
Issues on appeal to the Upper Tribunal
11. Broadly speaking, there are two grounds of appeal, as reformulated and advanced by Mr Chhotu before me:
a. First, the judge erred in fact when stating, at [43], that the appellant accepted that the voice recording of the speaking test was not his. There had been no voice recording. The judge made a mistake of fact that contaminated her overall credibility assessment;
b. Secondly, the ‘concession’ made by Mr Plowright had been without his authority. The judge should not have accepted it.
Mr Chhotu said that he did not rely on the remaining grounds of appeal.
12. At the time of the hearing below, and when the application was initially made for permission to appeal to this tribunal, the appellant was represented by Diplock Solicitors. Diplock Solicitors came off the record in 2021, and the appellant is now represented, on a direct access basis, by Mr Chhotu. The appellant claims that he has been unable to secure from Diplock solicitors a copy of the file relating to his case, or any assistance in connection with the grounds of appeal that challenge their conduct of the proceedings below.
13. Permission to appeal was granted by First-tier Tribunal Judge Dempster on the basis of amended grounds of appeal settled by Mr Chhotu.
14. The hearing before me took place remotely, having been listed at a time when that was necessary in order to guard against the spread of Covid-19. Neither party raised any fairness issues arising from the mode of the hearing and I am satisfied that the proceedings were conducted fairly.
Submissions
15. Mr Chhotu’s submissions were wide-ranging and lengthy, but ground 1 boiled down to the essential proposition that the judge made a material mistake of fact in relation to her statement that the appellant accepted that the voice recording was not his. That was simply an error, submitted Mr Chhotu. There was no recording. The appellant had not accepted anything about his voice not being on the recording. This was an error of fact that contaminated the judge’s overall credibility assessment.
16. Secondly, Mr Chhotu submitted that Mr Plowright of counsel acted beyond his authority in conceding that there would be no “very significant obstacles” to the appellant’s integration in Nepal. The judge’s summary of Mr Plowright’s submissions did not accord with her handwritten Record of Proceedings in any event, and Mr Plowright had no authority to make that concession. The appellant had written to Diplock Solicitors asking for their assistance in putting the allegations to Mr Plowright but, as with his attempts to secure copies of his file and appeal papers, he received no response.
17. Mr Chhotu also highlighted a number of authorities, including DK and RK (Parliamentary privilege; evidence) [2021] UKUT 00061 (IAC). The reported decision in DK and RK concerned a preliminary issue in relation to the extent to which it would be possible or appropriate for a tribunal to admit a report of the All Party Parliamentary Group (“the APPG”) on TOEIC. The panel held that the report was not admissible, but that a transcript of the evidence that the APPG heard would be, and gave directions to that effect, in order for the evidence to be considered at a resumed hearing. The evidence before the APPG appears to have addressed issues including alleged flaws in the evidence relied upon by the Secretary of State to demonstrate that candidates cheated in TOEIC tests. The resumed hearing in DK and RK took place in November 2021 before the President and Vice President of this tribunal, and judgment is awaited. Mr Chhotu submitted that, ideally, the hearing before me would be adjourned pending the final decision in DK and RK, although did not make an application for me to adjourn.
18. The Secretary of State submitted a rule 24 notice dated 16 November 2021, and a skeleton argument dated 3 February 2022. In summary, the Secretary of State’s position, including that advanced by Ms Cunha at the hearing, was that, while the judge did appear to have made a mistake in relation to the existence of the voice recording, it was not material.
19. In Ms Cunha’s submission, the judge redeemed the error in the third bullet point through her analysis contained in the fifth bullet point, in which she summarised concerns about the evidential continuity of ETS voice recordings, and observed that the failure to obtain the recording “might prove to be of little value”. Having set out those factors, the judge reached a legitimate conclusion concerning the appellant’s failure to obtain the recording as being a factor adverse to his credibility. In conducting that analysis, the judge demonstrated that she was fully aware of the fact that there was no recording, and that the appellant could not properly be said to have accepted that his voice did not feature on it. There were many other reasons relied upon by the judge to reach her conclusion; the third and fifth bullet points were peripheral to that reasoning. The mistake was immaterial, submitted Ms Cunha.
20. In relation to the second ground, there was no evidence of any attempts to put the allegation to Mr Plowright, or otherwise seek his views directly. Merely doing so through Diplock Solicitors was insufficient: a direct approach was necessary, if not a referral to the Bar Standards Board.
Discussion
Preliminary observations
21. Although Mr Chhotu submitted that his focus was upon grounds 1 and 2 as set out above, his oral submissions nevertheless emphasised an additional criticism contained in the written grounds of appeal. The grounds contend that the judge erred by approaching the appeal relating solely to the requirements of Article 8 of the European Convention on Human Rights, rather than the Immigration Rules, at [11] and [50]. I can deal with this point shortly. It is well established in this jurisdiction that the sole ground of appeal in an appeal against the refusal of human rights claim is that the decision was unlawful under section 6 of the Human Rights Act 1998: see section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002.
22. In order to address the proportionality of an appellant’s prospective removal, a tribunal is required, first, to address that question through the lens of the Secretary of State’s Immigration Rules, before doing so outside the rules. See, for example, TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109 at [22], per Sir Ernest Ryder, the then Senior President of Tribunals:
“The structure of decision making in appeals of this kind will usually involve the application being considered under the relevant provisions of the Rules and, if the appellant does not qualify under the Rules, outside the Rules to determine whether removal would amount to a breach of article 8.”
That is precisely the approach adopted by the judge. There is no merit to this criticism by Mr Chhotu.
Ground 1: the recording
23. In principle, an error of fact may amount to an error of law. See R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9.vii], in which the Court of Appeal said that an error of law may be present in relation to:
“Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.”
24. It is common ground that the judge’s inclusion of the third bullet point was an error: there was no voice recording. By definition, the appellant could not have accepted that the “recording” was not of his voice. The factual basis of the third bullet point was without foundation and was irrational. It was inconsistent with the judge’s subsequent analysis which held against the appellant his failure to obtain the recording.
25. Plainly, neither the appellant nor his then advisers were responsible for this mistake.
26. The crucial question is whether the mistake was in relation to a “material fact” and whether unfairness to the appellant resulted. As to that assessment, appellate tribunals and courts are to exercise restraint when reviewing the findings of first instance judges, for it is trial judges who will have had the benefit of hearing “the whole sea of evidence”, whereas an appellate judge will merely be “island hopping” (see Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114]). As Lady Hale PSC said in Perry v Raleys Solicitors [2019] UKSC 5 at [52], the constraints to which appellate judges are subject in relation to reviewing first instance judges’ findings of fact may be summarised as:
“…requiring a conclusion either that there was no evidence to support a challenged finding of fact, or that the trial judge’s finding was one that no reasonable judge could have reached.”
27. In my judgment, bearing in mind the context of an allegation of dishonesty and the clarity with which such findings should be reached, the fifth bullet point does not redeem the third bullet point. The third bullet point was extraneous to the issues and the evidence in the case, and its provenance in the decision is not clear. It went directly to a material fact in the proceedings, namely whether the appellant used a proxy in the TOEIC test. It was a finding wholly unsupported by evidence. The judge may have had another case in mind, or may, at that stage in her decision, have misunderstood the evidence. The reasoning of the fifth bullet is wholly inconsistent with that of the third bullet point, and it is not possible for this tribunal to say with the requisite confidence that the erroneous inclusion of the third bullet point played no part in the judge’s overall analysis, especially as the judge concluded the fifth bullet point by stating that she would consider the points she discusses in that paragraph in the context of her assessment of the evidence as a whole, which would have included the erroneous inclusion of the bullet point concerning the recording.
28. I have also considered whether the force of the remaining reasons given by the judge are sufficient to outweigh the erroneous presence of the third bullet point. The remaining analysis in the judge’s decision is clear and thorough, admirably so in light of the fact she promulgated the decision the day after the hearing. In my judgment, however, the remaining analysis in the decision is not sufficient to redeem the erroneous inclusion of the third bullet point. The appellant is entitled to an adjudication of the allegations of dishonesty against him that is sufficiently clear; he is entitled to reasons that do not feature plain, and significant, factual errors. Unfairness to the appellant has resulted through the judge’s error of fact in the third bullet point.
29. I find that ground 1 is made out.
Ground 2: the concession
30. Ground 2 contends that Mr Plowright, the appellant’s then counsel, made a concession without authority concerning whether the appellant would face “very significant obstacles” to his integration upon his return to Nepal. The headnote to BT (Former solicitors' alleged misconduct) Nepal [2004] UKIAT 00311 sets out the approach to advancing grounds of appeal based on the alleged misconduct of former representatives:
“If an appeal is based in whole or in part on allegations about the conduct of former representatives, there must be evidence that those allegations have been put to the former representative, and the Tribunal must be shown either the response or correspondence indicating that there has been no response.”
31. The appellant has not directly put to Mr Plowright the allegation against him that he made a concession without authority. While he has done so indirectly, through Diplock Solicitors, at no stage has he sought directly to put the allegation to Mr Plowright, nor raised a complaint against him with the Bar Standards Board. I do not consider the indirect approach to Mr Plowright to be sufficient, especially given that, on the appellant’s own case, Diplock Solicitors have singularly failed to respond to any of his queries throughout the proceedings, and so would be an unreliable conduit through which to advance an allegation of this gravity against Mr Plowright. While the appellant has provided a witness statement in which he sets out his attempts to engage with Diplock Solicitors, and through them Mr Plowright, it does not take matters further, as the appellant has not raised the matter directly with Mr Plowright. I find that there is insufficient evidence to impugn Mr Plowright’s conduct of the proceedings below, and, for the avoidance of doubt, he emerges unscathed from these proceedings.
32. Further, at [63], the judge engaged in a substantive analysis of the very issues which would go to the presence of “very significant obstacles” in any event, demonstrating not only that the concession was properly made on the evidence at that stage, but that it would have been unrealistic for the appellant to have maintained otherwise. The judge said:
“The appellant claims that he is highly educated having a degree from Nepal and many qualifications from colleges [in] the UK and there is nothing in the evidence before me to suggest he would not be able to obtain employment to support himself on return. He is a single man with no claimed health problems. He is clearly resourceful, having been able to maintain himself for many years in London. These factors would stand him in good stead on return. The appellant speaks Nepali and although he has been in the UK for 15 years the evidence before me from his friends indicates that he operates almost exclusively within the Nepalese community. He has lived in Nepal for the majority of his life [and] so [will] be familiar with social and cultural norms in that country even though he has been away from his home country for a considerable period. He has a mother and brother there with whom he can live.”
33. Finally, it is nothing to the point that the judge’s handwritten Record of Proceedings did not feature as much detail as her written judgment. The Record of Proceedings is an aide-mêmoire. Judges cannot reasonably be expected to take a complete note capturing the detail of a transcript. The appellant had not applied for a transcript of the hearing below, or enquired as to whether one would be available, given it was conducted by CVP. The judge promulgated her 17 page decision at record pace (the day after the appeal) and would have had the previous day’s proceedings firmly in mind.
34. I therefore dismiss the appeal under ground 2.
Conclusion
35. In light of the flaws in the judge’s reasoning concerning the appellant’s English language test, it will be necessary for the decision to be set aside. However, the judge’s analysis concerning the absence of very significant obstacles to the appellant’s integration has not been impugned, and I therefore preserve her findings at [50], as well as those at [63].
36. The decision will be remade in this tribunal. The substantive appeal will be listed on the first available date after three months, to allow a reasonable period of time for the decision in DK and RK to be reported.
37. At the resumed hearing it will, of course, be open to the appellant to apply to withdraw the concession made on his behalf by Mr Plowright, or to demonstrate that matters have moved on since that hearing. The appellant may apply to rely on additional evidence before the Upper Tribunal, and he may wish to seek to obtain the voice recording from ETS, plus any additional evidence concerning his claimed very significant obstacles to integration in Nepal. He must file and serve an application to rely on such further evidence within 28 days of being sent this decision.


Notice of Decision

The appeal of Judge Suffield-Thompson involved the making of an error of law and is set aside, subject to the savings set out at paragraph 35.

The decision will be remade in this tribunal at a face to face hearing, time estimate 2 hours, no interpreter required, listed on the first available date after three months.

Within 28 days of being sent this decision, either party may file and serve an application to rely on additional evidence under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, together with that evidence, or apply for an extension of time within which to make such an application.


No anonymity direction is made.


Signed Stephen H Smith
Date 28 February 2022
Upper Tribunal Judge Stephen Smith