Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13734/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 January 2017
On 06 February 2017

Before

UPPER TRIBUNAL JUDGE PITT

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Hafiz Muhammad Fawad Ul-Haq
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr N Bramble, Senior Home Office Presenting Officer
For the Respondent: Mr M A Saeed, Solicitor, Legal Solutions Advocates & Solicitors

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Lodge dated 13 October 2016 which allowed the human rights appeal of Mr Ul-Haq.
2. For the purposes of this decision I refer to Mr Ul-Haq as the appellant and to the Secretary of State as the respondent, reflecting their positions before the First-tier Tribunal.
3. The appeal was brought before the First-tier Tribunal by the appellant against a decision made by the Secretary of State on 8 December 2015. The decision concerned the widely known issue of using a proxy to sit an ETS/TOEIC test. The facts of this case are slightly different from the mainstream of those cases, however.
4. The appellant here applied in time on human rights grounds for further leave to remain with his wife and stepchildren. The respondent found against him under the family life provisions of Appendix FM as follows:
"It is not accepted that you meet the requirements of S-LTR in paragraph R-LTRP.1.1.(d)(i) for the following reasons. Paragraph S-LTR.1.6 states that an applicant will normally be refused if
'The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.'
You were invited for an interview on 16 January 2015 which was deemed as non credible as the interviewer felt that you had not entered the UK to study and you had not completed none of your courses.
At the interview, you spoke of your second English test taken at Harrow International Business School, 3 months after the original test which was taken on 5 February 2014 at Queensway College.
Your representative's letter of 2 December 2015 confirms that you took the second test because your were not issued a certificate in respect of your first test on 5 February 2014. Therefore this confirms that the you took the invalid test.
In fraudulently obtaining a TOEIC certificate in the manner outlined above, you willingly participated in what was clearly an organized 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."
5. The respondent referred to the appellant "fraudulently obtaining a TOEIC certificate". Her evidence, however, at appendix H of her bundle showed only two parts of the ETS/TOEIC test at Queensway College in February 2014 as "invalid" but not all four of the components of that test. As the refusal letter also indicates the appellant did not rely on these invalid test but provided an English language certificate obtained via Harrow International Business School in May 2014. It is undisputed that this certificate was valid. The respondent's case at its highest therefore could only be that the appellant had taken half an "invalid test" and never sought to rely on that in an application to the respondent. That, in my judgement, is a different situation from an applicant who seeks to rely on a false test certificate in support of an application for leave.
6. When the case came before the First-tier Tribunal the appellant did not dispute that he had sate the two modules he had taken at Queensway College or that they had been declared to be invalid. As in his earlier correspondence with the respondent, his case was that he had been a victim of dishonesty by Queensway College. He had taken the first two parts of the test but had been unable to arrange to sit the second part. Knowing that he needed an English language test result, he went to another college to obtain one.
7. The judge makes his findings on the appellant's conduct at [16] to [22] of the decision and concluded that the appellant did meet the suitability requirements. At [16] and [17] the judge correctly indicated that the Secretary of State's refusal was somewhat unclear because of the reference to a false TOEIC certificate when it is not disputed that no such certificate has ever existed in this case. The judge goes on at [18] and [19] to make his findings on suitability:
"18. The Appellant's case is that he sat half the test, two modules, and was awaiting details of the second half but never received an appointment letter. He tried to contact the centre but they would not respond. That scenario has a ring of truth and is corroborated to some extent by the fact that the Appellant never submitted an invalid certificate. He never did that I find because he was never issued with one in the first place.
19. On the balance of probabilities I find that the Appellant has been the victim of deception and not the perpetrator. I might add that at the hearing he was extremely fluent in English and within the Appellant's bundle are a number of certificates, pages 7 - 12, demonstrating his English ability. I find he had no need to cheat to obtain a TOEIC and that is another reason to reject the Respondent's case",
8. It is the findings in these two paragraphs that the respondent challenges now. The respondent's concern is that the First-tier Tribunal judge did not appear to refer to the respondent's evidence, at appendix H, J and K of the bundle at all, or accept, in line with UTIAC and Court of Appeal decisions, that the respondent's generic evidence together with the invalid test results showed that the evidential burden on her was met; SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC) and Majumder and Qadir [2016] EWCA Civ 1167 applied.
9. The respondent is correct to point out that here there is no reference to the generic witness statements. It is not correct to suggest that the First-tier Tribunal judge was not aware of the invalid test results at appendix H as they are an implicit part of his finding that the appellant was a victim of deception by Queensway College.
10. It is not my view that the failure to refer to or take into account the respondent's generic witness statements contained in appendix J and K of the respondent's bundle amounted to material error. Those witness statements address the situation where an applicant provides a TOEIC certificate that ETS state is invalid and fraudulently obtained using a proxy. They do not address the situation of an applicant relying on a valid certificate and being shown to have taken only half an invalid test, rthen approaching another, genuine test centre. The inference of dishonesty drawn from the first scenario is not as easily reached on the circumstances of this appellant. In my judgement the respondent's generic evidence did not address the circumstances of this case and the FTTJ did not err materially in failing to accept it as meeting the evidential burden.
11. It is therefore my conclusion that a material error does not arise as the respondent's generic material did not meet the different evidential burden on her here as it addressed different facts from those of this appellant. It is worth noting also that the First-tier Tribunal Judge, having heard the appellant's evidence and so being in a good position to make findings on his credibility, had the type of detailed personal evidence found in the above cases of being capable of showing the legal burden as not met even in a standard ETS/TOEIC case.
12. For these reasons I do not find that the First-tier Tribunal erred materially in the approach to the respondent's generic evidence.
DECISION
13. The decision of the First-tier Tribunal does not disclose an error on a point of law and shall stand.

Signed Date 2 February 2017
Upper Tribunal Judge Pitt