Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/15222/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 April 2019
On 3 May 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

Syed Kazim Haider Rizvi
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. D. Revill, Counsel instructed by Elaahi & Co. Solicitors
For the Respondent: Mr. S. Walker, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against a decision of First-tier Tribunal Judge Cohen, promulgated on 11 January 2019, in which he refused the Appellant's appeal against the Respondent's decision to refuse leave to remain on human rights grounds.

2. Permission to appeal was granted as follows:-
"It is arguable that the judge erred in finding that respondent had discharged the initial evidential burden notwithstanding difficulties with the ETS spreadsheet information provided (which was seemingly the only non-generic evidence relied on). All grounds are arguable."
3. The Appellant attended the hearing.

4. It was accepted by Mr. Walker on behalf of the Respondent that the decision involved the making of a material error of law in relation to the Judge's consideration of the evidence provided by the Respondent to show that the Appellant had used deception.

5. Given this, I stated that I found the decision involved the making of a material error of law. I set the decision aside. I remitted the appeal to the First-tier Tribunal to be reheard.

Error of Law

6. It was submitted at ground 1 that the Judge had failed to address the submissions made by the Appellant regarding the evidence provided by the Respondent to support his allegation of fraud. In particular, he had failed to address the fact that the tests were said to have been taken in October and November 2011, but used by the Appellant in an application in June 2011. He had failed to address the point that there was no certificate, and therefore no evidence to show that the certificate numbers were connected to the Appellant. Thirdly, he had failed to address the fact that there was nothing from ETS to say whether the Appellant fell into the category of those who had used an imposter, or those whose tests were invalid due to test administration irregularity.

7. It was accepted by Mr. Walker that the evidence provided by the Secretary of State was lacking insofar as the dates did not seem to correlate. The Appellant's appeal had been dismissed largely due to the fact that the Judge found that the evidential burden had been met by the Respondent. This was on the basis of reliance on documents which Mr. Walker accepted were not clear, and which may be flawed in showing that the Appellant had used deception.

8. I find that the submissions set out in the grounds of appeal, summarised at [6] above, were not properly taken into account by the Judge. He accepted at [27] that the Respondent had satisfied "the higher burden of proof which applies to an allegation of fraud". There is no reference at [24] to [26], when the Judge refers to the evidence provided by the Respondent, to the fact that the dates do not correlate. Neither is there any reference to the fact that no certificate was provided so as to show that the numbers referred to on the ETS spreadsheet referred to the Appellant. There is no detailed consideration of the evidence provided by the Respondent.

9. I find that insufficient reasons have been given for the Judge's finding that the Respondent had provided evidence to show that the initial burden of proof had been met, such that the burden of proof shifted to the Appellant. I find that this is a material error of law.

10. In relation to the other grounds, it was accepted by Mr. Walker, as had been stated by Judge Pickup in his decision of 23 January 2019 refusing permission to appeal from the First-tier Tribunal, that the Judge had made a further error of law in referring to evidence that was not before him, and made assumptions based on that evidence. This related to his statement at [27] where he referred to "evidence given to me in previous appeals" (ground 2).

11. Ground 3 refers to the failure to consider relevant material when considering the evidence of the Appellant, after the Judge had found that the burden of proof shifted to him. I do not need to consider this any further, as I have found that there was a material error of law in the Judge's finding that the burden had so shifted.

12. I have found that the decision involves the making of a material error of law. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

13. I thanked Mr. Walker for his approach to the Appellant's appeal.

Notice of Decision

14. The decision of the First-tier Tribunal involves the making of a material error of law and I set the decision aside. No findings are preserved.

15. The appeal is remitted to the First-tier Tribunal.

16. No anonymity direction is made.

Directions
1. It emerged at the hearing that neither the Appellant nor the Respondent had a copy of the supplementary bundle which had been served by the Respondent on the day of the hearing in the First-tier Tribunal, although there was a copy on the Tribunal file. This contained additional material relating to the ETS test. The Respondent is to serve this bundle on the Appellant as soon as possible, and in any event at least fourteen days in advance of the hearing in the First-tier Tribunal.
2. The appeal is to be listed at Taylor House.
3. The appeal is not to be listed before Judge Cohen.

Signed Date 1 May 2019

Deputy Upper Tribunal Judge Chamberlain