Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12111/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 December 2018
On 14 January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

mr Md Mohiuddin
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mrs A Holmes, Home Office Presenting Officer
For the Respondent: Mr R Jesurum, Counsel instructed by Zahra & Co

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge O'Malley in which she allowed the appeal of the Respondent (who I shall call "the Claimant"), a citizen of Bangladesh, against the Secretary of State's decision to refuse leave to remain in the United Kingdom on human rights grounds.

2. The application under appeal was refused on 26 September 2017. The Claimant exercised his right of appeal to the First-tier Tribunal. The appeal came before Judge O'Malley on 2 October 2018 and was allowed on human rights grounds. The Secretary of State applied for permission to appeal to the Upper Tribunal. The application was granted by First-tier Tribunal Judge L Murray on 31 October 2018 in the following terms

The grounds assert that the Judge erred in failing adequately to address why the explanation offered by the Appellant in relation to the Respondent's evidence that he had used a proxy in his TOIEC test was an innocent one. It is asserted that the Tribunal failed to give adequate reasons for holding that a person who clearly speaks English would have no reason to secure a test certificate by deception.

It is arguable that the First-tier Tribunal did not give adequate reasons for finding that the appellant had provided an innocent explanation for his score of 200 out of 200 in October 2011 particularly in view of the fact that he had failed the test twice in the months before the test of October 2011 in respect of which fraud was alleged.

SM and Qadir (ETS-Evidence-Burden of Proof) [2016].

Background

3. The history of this appeal is detailed above. The Claimant (the Appellant in the appeal to the First-tier Tribunal) is a citizen of Bangladesh born on 10 October 1975. He arrived in the United Kingdom on 19 April 2007 as a student and his leave to remain was subsequently extended until 21 September 2017 as an entrepreneur. On 1 April 2017 the Claimant applied for leave to remain on the basis of long residence. This application was refused on 26 September 2017 and is the subject of this appeal.

4. The basis of the refusal was, essentially, two-fold. Firstly, the Secretary of State considered that the Claimant had fraudulently used a proxy during a TOEIC speaking test on 18 October 2011 in connection with a previous application to extend leave to remain. As a result, the Secretary of State considered that the Claimant's presence in the United Kingdom was not conducive to the public good because his conduct made it undesirable for him to be allowed to stay in the UK. Secondly the Secretary of State considered that as a result of his use of deception his application under paragraph 276 ADE (1) failed the suitability requirement of the Immigration Rules.
5. The appeal came before Judge O'Malley and was allowed. The Judge found firstly that the Claimant did not use a proxy during the English language test and did take and pass all the TOEIC tests. Secondly, she found that the Claimant had been living in the United Kingdom for more than 10 years, that he has a number of business in the United Kingdom and that he has a family life in the United Kingdom with his wife and children. The Claimant's wife and children are all Bangladeshi citizens. The Judge found that as the Appellant met the requirements of the Immigration Rules and further that as his daughter was a qualifying child under the terms of the Nationality Immigration and Asylum Act 2002 it would be disproportionate to expect the Claimant to leave the United Kingdom.
Submissions

6. At the hearing before me Mrs Holmes appeared on behalf of the Secretary of State and Mr Jesurum represented the Claimant. Mr Jesurum applied to submit a Rule 24 response out of time. Ms Holmes raised no objection and, the rule 24 response being no more than a set of written submissions, I granted the application.

7. Mrs Holmes relied on the grounds and said that whereas the Tribunal accepted that the evidential burden fell upon the Claimant to offer an innocent explanation the Judge had not adequately addressed why she found that he had done so. It was not clear why the evidence he presented excluded the use of a proxy test taker. Mrs Holmes accepted that a supplementary bundle has been filed by the Claimant at the First-tier Tribunal hearing which included a detailed explanation of the circumstances under which the Claimant took the test and a photograph of the test location.

8. I did not ask Mr Jesurum to address me. I said that I was satisfied that the Judge had taken account of all relevant evidence, including the public interest, and had reached a sustainable conclusion on the facts before her and I gave an extempore decision dismissing the Secretary of State's appeal.

Decision
9. This is a TOEIC case where it is suggested by the Secretary of State that the Claimant used a proxy test taker at the Portsmouth International College. An interesting feature of this case is that it is common ground between the Secretary of State and the Claimant that the voice on the voice recordings of the test taken is not the voice of the Claimant. At the hearing before the First-tier Tribunal it was accepted by the Judge that the Secretary of State passed the first evidential burden and therefore that it turned to the Claimant to offer an innocent explanation. The Claimant did offer an innocent explanation. His innocent explanation is very clear, that was that he at no time went to Portsmouth or to the Portsmouth International College. He did not need to because he took the test at Opal College in London. He gave details as to when he took the test and the location in which he took the test. He provided a supplementary witness statement giving those details that included a photograph of the location of where the test took place and he gave oral evidence to support that supplementary witness statement. Having heard the Appellant's evidence the Judge was satisfied that he had given an innocent explanation and that he had taken the test himself at Opal College.

10. The Secretary of State was not represented at the First-tier Tribunal hearing. In seeking permission to appeal to the Upper Tribunal it does not appear that the Secretary of State took any note of the evidence presented to the First-tier Tribunal by the Claimant. This is unfortunate. Where the Secretary of State chooses not to field a representative before the First-tier Tribunal but then seeks to argue that the First-tier Tribunal did not take account of the evidence that was before it the Secretary of State should at the very least review the evidence that was before the Tribunal. If the Secretary of State had done so in this case it is unlikely that he would have pursued this appeal.

11. In conclusion the Judge gives more than adequate reasons for reaching her decision and in those circumstances, I find no error of law in the Judge's decision. The appeal of the Secretary of State is therefore dismissed.

Summary

12. Appeal dismissed. The decision of the First-tier Tribunal stands.

Signed Date 2 January 2019
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J F W Phillips
Deputy Judge of the Upper Tribunal