Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10283/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 13 June 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

Md Forhaduzzaman
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. P Lewis, Counsel, instructed by Lawmatic Solicitors
For the Respondent: Mr. T Lindsay, Senior Presenting Officer
DECISION AND REASONS
Introduction
1. The appellant appeals a decision of Judge of the First-tier Tribunal Watson sent to the parties on 19 November 2019 dismissing his appeal against a decision of the respondent to refuse his human rights (article 8) application. The respondent’s decision is dated 29 May 2019.
Facts
2. The appellant is a national of Bangladesh and is presently aged 36.
Immigration History
3. The appellant secured entry clearance as a Tier 4 Student migrant on 3 January 2011 and was granted leave to enter this country on 10 January 2011. On 19 October 2011 he took a TOEIC test at Westlink College. He subsequently applied for leave to remain and his leave was varied so as to expire on 30 April 2014. In making the application he relied upon a TOEIC certificate he had secured from Education Testing Services (‘ETS’) following his test at Westlink College.
4. The appellant applied for further leave to remain, which was refused by the respondent by a decision dated 15 March 2013. On the same day his existing leave to remain was curtailed to expire on 14 May 2013 as the licence of his sponsor had been revoked.
5. He applied for further leave to remain on 29 May 2013, which was granted by the respondent to run from 25 June 2013 to 9 April 2016.
6. On 30 January 2015 the respondent served upon the appellant a form IS.151A cancelling his leave to remain, observing the appellant’s reliance upon his TOEIC certificate in his May 2013 application and confirming that she had been informed by ETS that the appellant had used deception in his speaking test held at Westlink College.
7. On 5 June 2015 the respondent refused to grant the appellant leave to remain on human rights grounds. The appellant subsequently brought a judicial review challenge which was conceded by the respondent on 18 February 2019. The respondent gave the appellant 28 days to make further submissions.
Decision
8. The respondent received the appellant’s further submissions on 16 May 2019 and again refused the human rights application by a decision dated 29 May 2019. The respondent observed, inter alia:
‘In your application dated 29 May 2013 you submitted a TOEIC certificate from Education Testing Service (‘ETS’).
ETS has a record of your TOEIC test taken on 19 October 2011 at Westlink College. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test 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. Your scores from the test taken on 19 October 2012 have now been cancelled by ETS. On the basis of the information provided to her by ETS, the SSHD is satisfied that your certificate was fraudulently obtained and that you used deception in your application of 29 May 2013.
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 disregard 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.
Accordingly, I am satisfied that your presence in the UK is not conducive to the public good because your conduct makes it undesirable to allow you to remain in the UK. Your application is therefore refused under paragraph S-LTR.1.6 of the Immigration Rules.
Consequently you fail to meet the suitability requirements of paragraph 276ADE(1)(i) with reference to paragraph S-LTR.2.2(a) and S-LTR.1.6 of the Immigration Rules.’
Decision of the First-tier Tribunal
9. The appeal came before the Judge sitting at Taylor House on 11 November 2019. The appellant gave evidence.
10. The Judge noted the following at [6]:
‘6. A recording of the test. No party requested that I listen to this. It was agreed by the appellant that it was not his voice on the recording. Emails requesting the voice recording with details of date of birth and date of test, passport and certificate details attached. Response with the audio file for ‘the identified test taker’.’
11. The Judge additionally noted at [16]:
’16. There is no doubt that there has been widespread fraud in the taking of English Language tests. We are all aware of this and it is shown in the generic evidence. The appellant has obtained a voice recording and agrees that it is not his own voice on the recording.’
12. In a section of her decision subtitled ‘Burden upon appellant’ the Judge observed, inter alia:
’19. I find that the appellant has not shown on the balance of probabilities that he is a person who has been wrongly identified as having a false test (i.e. is one of the 1 or 2% that could be a false positive).’
Decision
13. The appellant relied upon several grounds of appeal. Following discussion between the representatives prior to the hearing Mr. Lindsay accepted that though not addressed in the grounds of appeal the first line of [19] of the Judge’s decision clearly established that she had misapplied the burden of proof. He quite properly noted that the erroneous application of the burden of proof led to the two appeals in DK & RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC) being remitted back to the Upper Tribunal from the Court of Appeal.
14. In the circumstances, Mr. Lindsay accepted on behalf of the respondent that the Judge’s decision was subject to a material error of law and should properly be set aside. Unsurprisingly, Mr. Lewis agreed with the course identified by Mr. Lindsay. It is unfortunate that the error was made as otherwise the Judge had sought to undertake a careful examination of the evidence in front of her, but the failure to appropriately identify the party upon whom the burden of proof falls is clearly a material error of law. The only proper course is to set aside the decision.
Resumed Hearing
15. I am satisfied that the consideration of the evidence in this matter will be significant and in those circumstances, being mindful of the relevant Practice Direction, I consider that the appropriate course of action is for this matter to be remitted to the First-tier Tribunal.
16. The parties agree that [6] and [16] of the Judge’s decision should be preserved.
Decision
17. The decision of the First-tier Tribunal sent to the parties on 19 November 2019 is set aside by reason of material error of law.
18. The resumed hearing will take place in the First-tier Tribunal at Taylor House. It is to be listed before any Judge other than Judge Watson.
19. The findings of fact at [6] and [16] of the First-tier Tribunal decision are preserved.

Signed: D O’Callaghan
Upper Tribunal Judge O’Callaghan

Date: 20 June 2022