Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Appeal Number: HU/18997/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 May 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

usman nasir
(ANONYMITY DIRECTION not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr Tufan, Senior Presenting Officer

DECISION AND REASONS
Procedural History in the Upper Tribunal
1. I issued my first decision in this appeal on 2 December 2020. In that decision, I found that the First-tier Tribunal had erred in law in failing to make a finding on the question of whether the appellant had used a proxy in his February 2013 TOEIC test. I ordered that the FtT’s decision would be set aside and that the appeal would be listed for a de novo resumed hearing before the Upper Tribunal.
2. With the consent of the advocates who appeared at the hearing in 2020, I also ordered that the resumed hearing should not take place until the Upper Tribunal had issued its final decision in the test cases concerning the July 2019 All Party Parliamentary Group (“the APPG report”) on the ETS saga. In the event, the President and the Vice President issued two decisions in that case. The first (DK & RK (Parliamentary privilege; evidence) India [2021] UKUT 61 (IAC) was reported on 27 January 2021. The second (DK & RK (ETS: SSHD evidence, proof) India [2022] UKUT 112 (IAC) was reported on 25 March 2022. (I shall refer to those decisions as DK & RK (No 1) and DK & RK (No 2) respectively.) The resumed hearing was listed on the first available date after the second decision had been issued, which was 5 May 2022
3. The notice of hearing was sent by email to the appellant and the respondent on 14 April 2022. It was also sent to the solicitors who were on record as acting for the appellant, Bukhari Chambers. In the evening of 3 May 2022, Bukhari Chambers sent an email to the Upper Tribunal asking for an adjournment of the hearing. Their letter stated that the appellant had been unable to place them in funds for the hearing. He sought additional time within which to raise funds so that he could be represented at the hearing. He did not wish to secure alternative representation or to attend in person.
4. I refused the application for an adjournment on 4 May 2022, noting that the application was made shortly before the hearing; that it gave little indication of how or when the appellant might be able to fund representation; but that the appellant would be at liberty to renew his application in person at the hearing.
5. So it was that the appellant attended before me without representation on 5 May 2022. He did renew his application for an adjournment, stating that he was stressed and that he knew nothing of the law in this area. I refused the application as I was satisfied that it was fair to do so. As I set out in my first decision (appended hereto), these proceedings have a long history and it was by no means clear from what the appellant said to me that he stood any realistic chance of raising the funds needed to instruct solicitors. He is not in work and is ‘sofa-surfing’. He has lived for years on the charity of others and stated to me in terms that his friends and family were tired of his requests for financial help. He suggested that he might sell his mobile telephone but he accepted that this would not raise the sum he required. I explained to the appellant that the dispute was essentially a factual one and that he was not required to have a detailed knowledge of the ETS litigation. I was satisfied that I could consider the appeal fairly without adjourning for an indeterminate period in the hope that the appellant could secure representation.
Background
6. I set out in my first decision the salient parts of the chronology of this case and it suffices for present purposes to note that the appellant brought this appeal against a decision which was made by the respondent on 5 November 2019. That decision was the refusal of a human rights claim which the appellant had made on 5 February 2019. The respondent initially refused that application on 10 April 2019 and the appellant appealed against that decision. His appeal was due to be heard on 19 September 2019 but the respondent withdrew the decision after considering the witness statement which the appellant had made in that appeal. The respondent then issued the decision of 5 November 2019, in which she considered all that had been said by the appellant in his original representations and in his subsequent statement.
7. The claim which the appellant presented to the respondent might be summarised quite shortly. He denied that he had cheated in his 2013 TOEIC test and stated that the false allegation against him had ruined his education and his potential career. He stated that he was in a relationship with another Pakistani national and that they had a daughter together who was born on 21 June 2017. Her well-connected and influential family did not approve of the relationship and had threated to kill them.
The Respondent’s Decision
8. At [5] of her decision, the respondent set out the appellant’s lengthy immigration history, which (as noted in my first decision) comprises a number of applications under the Immigration (EEA) Regulations as well as others on human rights grounds. As we shall see, it also includes the appellant’s wife’s claim for asylum, in which the appellant was named as a dependent.
9. At [6] of her decision, the respondent noted that the appellant’s wife and child were not able to sponsor his application as neither had any status in the UK.
10. At [8]-[13], the respondent refused the appellant’s private life application on grounds of suitability because she concluded, in reliance on evidence from Educational Testing Services, that the appellant had fraudulently obtained a TOEIC certificate from Cauldon College on 27 February 2013. She concluded that the appellant had used a proxy to take that test and she noted that it had been submitted in support of a previous application for leave to remain. Further and more detailed reasons for that conclusion were given at [33]-[53] of the letter.
11. The respondent did not in any event accept that the appellant would experience very significant obstacles to his reintegration to Pakistan, having lived there for the first 21 years of his life: [18]-[22]. The respondent did not accept that the appellant’s removal would be in breach of Article 8 ECHR as he could return to Pakistan with his wife and daughter, and it had been found in his wife’s appeal that there was no threat to them from his wife’s family: [23]-[32].
The Appellant’s Appeal
12. The appellant appealed to the First-tier Tribunal. In support of that appeal, he filed a bundle of 124 pages, including an updated witness statement. The appellant’s appeal was dismissed for reasons which need not be set out in this decision, given that the appeal is to be remade with no findings of fact preserved.
13. Having refused the appellant’s application for an adjournment, I asked him some questions in order to gain an understanding of his current circumstances before he was cross-examined by Mr Tufan.
14. The appellant said that it had been his intention to come to the UK, complete his studies and then return to Pakistan. He had then met his wife and fell in love. He had only been back to Pakistan once, in 2014, and he had stayed there for 24 days. After that, he had returned to his place of study (Williams College) but had discovered that his leave had been revoked due to the allegation that he had cheated in his TOEIC test. He had taken that issue all the way to the Court of Appeal and had been fighting for eight years or more.
15. The appellant stated that his wife had come to the UK in 2016. She was of the Baluchi tribe, whereas he was Punjabi. The tribes did not get on and there had been threats to kill them as a result of the marriage. She was still in the UK and was doing a law degree but she had failed to secure asylum as a result of the FtT’s dismissal of her appeal in 2018. It had had a massive impact on them and the relationship had eventually broken down. The appellant and his wife now lived separately and his daughter lived with her mother. They lived in Harpenden. The appellant tried to see them every day. The appellant felt that he had lost everything in the last twelve years and had achieved nothing.
16. Day-to-day, the appellant stated that he would sometimes go to a friend’s house or to his uncle’s house in Manchester. He thought that he would soon be bankrupt as he owed more than £16,000 on credit cards. The bailiffs tried to recover the debt regularly. His brother in Croydon had Indefinite Leave to Remain. His brother’s wife was a German national. He could count on them to feed him if he was hungry. The appellant stated that he continued to have an amicable relationship with his wife. I asked whether they were formally married. He said that the marriage had taken place by Skype and that it was a proxy marriage. He did not know whether the marriage had been registered with the Union Council.
17. Cross-examined by Mr Tufan, the appellant confirmed that his leave had been curtailed in 2014. He had not wished to stay in the UK indefinitely, but he felt that he had little choice after they had received threats from the Baluchi community in Pakistan. Intermarrying was not permitted by that community and they had been scared to return. He had also wanted to clear his name after the allegation of fraud was made against him. He and his wife had married in October 2014, he thought, but he was not sure whether it was an official marriage. Her brother, sister and her sister’s husband had attended the wedding.
18. Mr Tufan put to the appellant a suggestion that his wife had stated that she was single when she made her application for entry clearance. He accepted that was so but he stated that she had family in the police and her brother was in the intelligence services in Pakistan and she had not wanted them to know about the relationship. He continued to see his wife and daughter every day. He confirmed that neither of them had leave to enter or remain.
19. The appellant stated that he had undertaken his TOEIC test at Cauldon College in February 2013. He was not sure where that was. He thought it was possibly in Harrow or maybe in East London. He was living in either Crystal Palace or Peckham Rye at the time. Mr Tufan noted that the Project Façade report in the respondent’s bundle stated that the college was in Essex. The appellant protested that he had been there once only and that it was ‘ages ago’. He did not go there himself – he had been taken there by car by a person from the solicitor’s firm which was representing him at the time. He could not recall exactly where it was. He thought that the firm was called Abdullah & Co. It was not operational anymore. It was that firm which had arranged the appellant’s TOEIC test. They had done so because his TOEFL certificate had expired. The appellant had not booked the test himself.
20. Mr Tufan asked how long the journey to the test centre had taken. The appellant did not know. He stated that the man who had driven him was called Khizar. He had not seen him after that, although he had located him on social media. On his Facebook account, Khizar said that he had gone back to Pakistan. He had tried to contact the solicitors by phone and in person but their office (“somewhere on the Bakerloo line”) had closed. The appellant wasn’t friends with Khizar on Facebook and his main concern had been to get in contact with the solicitor. The appellant was unable to give Khizar’s surname. He had found him on Facebook by searching for the name ‘Khizar’. He was unable to state what Khizar’s role might have been at the firm. He saw him sitting at a desk with a computer and had not asked. He did not know whether he worked there; he had gladly accepted a lift when it was offered. Even now, he found train travel confusing. They had travelled from the solicitor’s office (“on the brown line”). He did not know how long it had taken.
21. The appellant denied that Khizar had sat the test for him. He had noticed nothing abnormal at the centre but he was not familiar with these procedures. When asked what had happened, he said that he could not remember but he went on to state that he had been put in a small room at Cauldon College. The test-takers had not sat next to each other; they were more spaced out (“one after one”). There had been a few people on one side and a few on the other. There was a door at the back of the room. The appellant had answered the questions which were put to him and then the college took a photo of him and stated that he could go.
22. Mr Tufan reminded the appellant that he had given evidence before the FtT in 2018 and that Judge Bird had found him to be an untruthful witness. Why, he asked, should this Tribunal take a different view? The appellant stated that he had contested the allegation of fraud for eight years. “So many people get out of this shit”, he said, quite upset. He was just trying to clear his name. He had taken the test. He knew people who could not speak English after they had been in the UK for thirty or forty years. He had no need to pay someone to take his test and he had not done so. He had missed the funeral of his grandmother so that he could stay in the UK to context the allegation. He did not agree with the people who said that he could start life afresh in Pakistan. He had been in his early twenties when he came to the UK. He was surprised at Mr Tufan’s suggestion that he should leave the UK and start again in Pakistan.
23. I asked the appellant whether there was anything he wished to add. He said that he had been arrested in the UK but no charges had been brought. It was all resolved and there were no convictions. He had been arrested in December 2021 and in March 2022. It was in relation to a domestic incident before he had moved out of the matrimonial home. The stress of the case had contributed to the problems in the relationship. He had only recently moved out.
Submissions
24. In his submissions, Mr Tufan suggested that the first question was whether the appellant had cheated in his test. The respondent had produced the usual generic evidence and the Look Up Tool to show that the appellant’s results had been invalidated by ETS. It was well established in the authorities that these documents discharged the evidential burden on the respondent and called for a cogent explanation. There was also a Project Façade report showing the scale of the cheating at Cauldon College. Mr Tufan did not know whether there had been a prosecution. The appellant protested that his English was good but the Upper Tribunal had previously observed that there might be a myriad of reasons why a person proficient in English might cheat.
25. The burden was on the respondent. The standard was the civil standard. It was no longer necessary as a result of DK & RK (No 2) to pass the burden to and fro between the parties. The reality was that significant weight was to be given to the respondent’s evidence and there was insufficient evidence from the appellant to counter the pull of that evidence. The appellant’s oral evidence had been unsatisfactory in a number of respects. He had said that he was taken to Cauldon College by Khizar but he was unable even to state whether Khizar worked at the firm or not. He had handed money to this man without knowing his role. He had thought that the test was in Harrow but it was in Essex. There was no innocent explanation to weigh against the cogent evidence adduced by the respondent. The appellant said that he had located Khizar on Facebook but he had not sought evidence from him. He had been found to be untruthful by Judge Bird and his evidence in this appeal was equally unsatisfactory.
26. The senior panel of the Upper Tribunal which had considered DK & RK (No 2) had stated that there was no reason to think that the ETS documents did not accurately identify those who had cheated. It had considered the APPG report and the evidence upon which it was based. No weight was given to the concerns expressed by the witnesses before the APPG. Whilst it could not be said that there would never be any errors, it could safely be assumed that the false positive rate was very low. A conclusion that the appellant had cheated was determinative of any claim under the Immigration Rules and Article 8 ECHR on the facts of this case. The appellant’s wife had no leave. Nor did his child. There was no reason to think that they could not (and should not) leave the UK with him, it having been found by Judge Bird that there was no risk to them in Pakistan. There were no other very significant obstacles to the appellants’ re-integration to his country of nationality. He had family there and his father had funded him in the past.
27. In response, the appellant stated that his father had not assisted him for many years. His brother was an accountant and had his own family to support. The whole family lived together in a small house. He had lived in Pakistan for 22 years but most of his adult life had been in the UK. He wished to be a police officer in the UK. He had not researched the law on the ETS allegation but he knew that he had done the test. He asked that I should allow his appeal. His wife still received threats from her family and that could be confirmed by the child protection authorities.
28. I reserved my decision after hearing from the appellant in closing.
Analysis
29. The first issue, as Mr Tufan submitted, is necessarily the allegation of fraud which the respondent first made against the appellant when she curtailed the leave to remain he had secured in (partial) reliance on the TOEIC certificate he obtained from Cauldon College. I should begin my analysis of that issue by stating that the burden of proof is on the respondent to establish that it is more likely than not that the appellant used deception in a previous application. Following DK & RK (No 2), a self-direction in those terms will suffice, and there is no need to refer to the burden moving between the parties in the manner of a boomerang or a pendulum. Nothing turns on that in any event, since it has long been established that the respondent’s generic evidence plus the Look Up tool (a copy of which is in the respondent’s bundle) suffices to discharge any initial burden.
30. It is not in dispute that the appellant relied upon a TOEIC certificate from Cauldon College in support of a previous application for leave to remain. Rather confusingly, the refusal letter suggests that the appellant relied on the certificate, which was issued in February 2013, in support of an application for leave to remain which he made in April 2012. The explanation for those dates is to be found at [9]-[10] of the appellant’s statement before the FtT: he applied for an extension in April 2012 but the college lost its sponsorship licence and he was given time in which to find a new sponsoring college. He did so, and was then required to submit an English language test in support of that application. That explains why the certificates post-date the application by nearly a year.
31. Other matters are also not in dispute between the parties. It is accepted that Cauldon College issued two certificates. The first showed that the appellant had scored 160 out of 200 in the Speaking component and that he had also scored 160 out of 200 in Writing. The second showed that he had scored 455 out of 495 in Listening and 395 out of 495 in Reading. The appellant’s total score was given as 850 on the top right-hand corner of the second certificate.
32. Mr Tufan did not dispute that the appellant came to the UK with some academic success under his belt. The CAS to which I have already referred shows that he achieved a Diploma in Commerce from the Punjab Board of Technical Education in Lahore, amongst other achievements. It is also clear from the 2012 CAS which appears at page 46 of the appellant’s bundle that the appellant had taken a TOEFL test before he came to the UK and that his results in that test equated to level B2 on the CEFR. He then studied courses at NQF level 4 and 6 in the UK. I am entitled to take judicial notice of the fact that the latter is equivalent to a bachelor’s degree. I also note that the appellant gave evidence in English before me and that he was highly proficient in doing so. The weight which can be given to that is extremely limited, however, on account of the passage of time and the fact that there might be any number of reasons why a person who can speak English would have chosen to use a proxy: MA (Nigeria) [2016] UKUT 450 (IAC) refers, at [57].
33. The background to the ETS scandal needs very little introduction. The BBC Panorama programme broke the story in 2014, revealing with covert camera footage that proxies had taken English tests for individuals at two test centres. The methodology which ETS used to detect the presence of a proxy taker is described in the witness statements made by Rebecca Collings and Peter Millington. The evidence has been considered in countless decisions in the past decade or so and I propose to say only this about it. ETS used computerised voice recognition technology in the first instance. It then analysed the recordings of each test using this equipment. Where the technology detected the same voice on two or more recordings, those recordings were considered independently by two analysts. Where the analysts agreed that the voice on the recordings was the same, ETS would invalidate the test result.
34. The perceived limitations of the system which ETS decided to use have been explored in a great number of authorities. They were also considered in the APPG report. As a result of DK & RK (No 2), there is no need to rehearse the way in which the authorities have charted the development of the evidence and the various criticisms which have been levelled at it. It suffices, instead, to note the main conclusions in DK & RK (No 2).
35. At [67], under the sub-heading “The Import of the General Evidence”, the Upper Tribunal observed that the ‘evidence showing fraudulent activity in a number of ETS centres) is overwhelming.’ That did not establish that any individual certificate was fraudulently obtained but it provided the context within which such allegations were to be evaluated. At [73], the Upper Tribunal added that ‘any assessment of whether the burden of proof is discharged in an individual case falls to be determined against the background of the fact that there were many thousands of results obtained fraudulently’.
36. From [80], the Upper Tribunal engaged with the possibility that the methodology I have described at [32] above would reach an erroneous conclusion. It considered the evidence given by the expert, Professor Sommer, and what had also been said to it by civil servants with experience of the Look Up Tool and the systems which underpinned it. At [87], it turned to consider what had been said to the APPG by Professor Sommer and others. Having done so, the Upper Tribunal concluded that it found nothing in the transcripts of the evidence before the APPG to substantially undermine the evidence adduced by the Secretary of State.
37. From [103], the Upper Tribunal undertook its analysis of all of the evidence. In that paragraph, it concluded that:
the voice recognition process is clearly and overwhelmingly reliable in pointing to an individual test entry as the product of a repeated voice. By "overwhelmingly reliable" we do not mean conclusive, but in general there is no good reason to doubt the result of the analysis.
38. At [105], the Upper Tribunal dismissed a criticism expressed particularly by Professor Sommer to the APPG, which was that there was little or nothing to link a particular recording to the test actually taken. It concluded that:
There is no reason at all to suppose that they would be other than extremely careful to ensure that the fraudulent entries were indeed credited to the fraudulent candidates. The suggestion of any general mix-up at this stage runs counter to the ordinary experience of the provision of a service.
39. At [106], the Upper Tribunal noted that ‘nobody seems to be suggesting that [ETS] cannot be relied upon to attribute test entries to candidates correctly.’ It underlined at [107] that the evidence was not to be regarded as determinative but that there was ‘every reason to suppose that the evidence is likely to be accurate’. At [109], the Upper Tribunal explained why it was not concerned about the absence of direct evidence from ETS. At [110], it rejected what was said by the appellants in those cases about the precise process for analysing the evidence. At [112], it explained why it did not consider that the respondent was in breach of her duty of candour.
40. At [127] and [129], the Upper Tribunal expressed the following general conclusions:
[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.
[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.
41. With that possibly overlong introduction, I return to the specific evidence in the appellant’s case. The Look Up Tool shows that the appellant’s Speaking and Writing scores were deemed to be invalid by ETS. The registration number on the TOEIC certificate which appears at I1 of the respondent’s bundle tallies with the number given on the Look Up Tool record at G5 of that bundle.
42. The respondent’s bundle also contains a record which shows that 56% of tests which were taken at Cauldon College on 27 February 2013 (that being the day on which the appellant supposedly took the Speaking and Writing Tests) were deemed to be invalid. There is also the Project Façade Report, which shows that 55% of tests taken at Cauldon College between 16 November 2011 and 5 February 2014 were found to be invalid. An ETS audit at the college showed evidence of ‘remote testing’, whereby more individuals supposedly took the test than were physically present in the room. An individual who was interviewed under caution admitted that he had received a certificate but had not taken the test. One of the directors of the centre had a contact list which described a number of individuals as ‘pilot’ – a term associated with employment as a proxy in such cases.
43. I should also note that the further context is provided by the Upper Tribunal’s decision in MA (Nigeria) (citation as above), because the lead appellant in that case had also acquired certificates from Cauldon College. Those certificates bore dates in February and March 2013, which was said by the Upper Tribunal to be ‘the peak period of cheating and manipulation in the ETS/TOEIC saga.’
44. The weight which should be attached to the respondent’s evidence is now entirely clear and it is fair to say that all of the criticisms levelled at that evidence have been found to be ill-founded by the President and the Vice President in DK & RK (No 2). The appellant did not ask me to depart from that guidance and having considered for myself whether I should do so, I can see no proper reason to take that unusual course. The Upper Tribunal received a large amount of documentary evidence and it heard oral evidence from relevant lay and expert witnesses. Its conclusions represent the last and decisive word on this long-running ‘saga’ and I am satisfied that I should follow those conclusions. The respondent’s evidence is not determinative, but it is sufficient to discharge the burden of proof to the civil standard in the absence of credible countervailing evidence.
45. I have found no such evidence in this case. The appellant protests, as he has for many years, that he took the test and that there must have been some sort of mistake. The chances of that are small, however, according to DK & RK (No 2). In any event, I accept Mr Tufan’s submission that there were difficulties with the appellant’s evidence which reduce the weight which I can properly attach to his assertion of having taken the test. I give the following examples:
(i) The appellant was found not to be a credible witness by Judge Bird in 2018. She gave cogent reasons for finding that the appellant and his wife were not reasonably likely to be telling the truth about having been threatened by her family. Whilst the appellant might have lied to Judge Bird in 2018 and told the truth before me, it is relevant to bear in mind that he has in the past been prepared to give untruthful evidence in an attempt to remain in the United Kingdom.
(ii) The appellant was unable to state where Cauldon College was. He thought that it was in Harrow but, as Mr Tufan stated, the Project Façade report shows that it was in Essex. I am not satisfied that the passage of time is a sufficient explanation for the appellant’s failure to recall the location.
(iii) The appellant also stated that he was unable to state where the college was located because he had only been there once. That is a surprising assertion because the appellant relied on two TOEIC certificates in support of his application for leave to remain. The first shows that the Speaking and Writing tests took place on 27 February 2013. The second shows that the Listening and Writing tests took place on 28 February 2013. At the very least, therefore, the appellant should have been to Cauldon College twice, yet he was clear in his evidence to me that he had only been there once, on which occasion he was driven by a man called Khizar. The statement he prepared for the FtT hearing also makes reference to only a single trip to the college, at [16].
(iv) The appellant’s evidence about Khizar having driven him to the college was unsatisfactory. Khizar was not named in the appellant’s otherwise comprehensive statement before the FtT and I formed the impression that the name was made up on the spur of the moment when Mr Tufan asked the question. That impression was cemented by the evidence which followed, in which the appellant stated that he had managed to locate Khizar on social media using only his first name but that he had not thought to ask him to provide any evidence in support of this appeal.
(v) I do not understand why the appellant – who has until recently been represented by expert solicitors – has not sought the voice recordings which are so central to his case. It has been an established feature of these cases for many years that the recordings are available via ETS’s solicitors in the UK and I have dealt with many cases in which they have been sought and provided. If, as the appellant claims, he is the innocent victim of a terrible muddle, I would have expected his former solicitors to have taken this obvious step.
46. I do not lose sight of the fact that the appellant has contested the allegation of fraud for the best part of a decade. He explained to me that it had ruined him and destroyed his relationship with his wife. These may be the actions of an innocent man who is determined to clear his name or they might be the actions of a guilty man who is determined to remain in the United Kingdom by hook or by crook. Given the cogency of the respondent’s evidence and the doubts I have about the appellant’s evidence, I reach the clear conclusion that the appellant fits the latter description.
47. I therefore find on the balance of probabilities that the appellant made an application for leave to remain in April 2012 and that he subsequently supplied the respondent with a fraudulently obtained TOEIC certificate in support of that application. The respondent was undoubtedly entitled to refuse the appellant’s application under the Immigration Rules for that reason. His conduct was sufficiently reprehensible and there was no reason to exercise discretion in his favour.
48. I also find that the appellant would not encounter very significant obstacles to his reintegration to Pakistan. He lived there until he was in his early twenties and although he has been in the UK for many years, he does not claim to have lost touch with his country of nationality or to be unable to speak Urdu. Insofar as he relies on the risk to him in that country, his claims were rejected by Judge Bird and there is no reason for me to depart from the starting point provided by her decision, given the obvious overlap in the evidence: AA (Somalia) & AH (Iran) v SSHD [2007] EWCA Civ 1040. It might well be the case that his whole family live in a single house and that there is little surplus money but there is nothing before me to suggest that the appellant would not, within a reasonable time, be able to establish a network in Pakistan and acquire employment there. I note that he claimed before me that he wished to become a police officer in this country and I cannot understand why a similar career path would not be available to him in his country of nationality. Whilst there may be difficulties, they do not reach the threshold contemplated by paragraph 276ADE(1)(vi) of the Immigration Rules.
49. I am satisfied that the appellant has a private life in this country, composed of his relationships with friends and family here. There is no reason to doubt, for example, that he has a brother and an uncle to whom he is able to turn for support in this country.
50. I am also satisfied that the appellant continues to have a relationship with his young daughter. His relationship with his wife has recently come to an end after the police were called to the family home on two occasions (information which was volunteered by the appellant) but I accept that his relationship with his former wife is amicable and that he is permitted to see his daughter regularly.
51. I proceed on the basis that the respondent’s decision to remove the appellant will interfere with his private life but not with his family life with his daughter. Whilst his uncle and his brother are entitled to remain in the UK, his wife and his daughter are not, and I accept the submission made by Mr Tufan that I should proceed on the basis that they can return to Pakistan together and continue their family life there. There is no evidence before me to show that the appellant’s wife or child have an application for leave to remain outstanding. She is a failed asylum seeker, as he confirmed in his oral evidence. There was some rather vague reference to child protection issues but there is no evidence of this and I am inclined to the view that they are more likely to be centred on the domestic issues which caused the relationship to break down, rather than anything to do with the matters rejected by Judge Bird in 2018.
52. Considering the public interest in immigration control, which weighs heavily against the appellant in this case as a result of his attempt to subvert those controls by the submission of a false English language certificate, I find that the respondent is amply able to demonstrate that the appellant’s removal from the United Kingdom is a proportionate measure. That course will not, in my judgment, give rise to unjustifiably harsh consequences. He will be separated from his contacts in the UK and he will encounter some difficulty, beneath the threshold in the Immigration Rules, in readjusting to life in Pakistan. Those consequences are entirely justified, however, in light of my finding that the appellant sought to subvert immigration control in 2013 and has continued, untruthfully, to protest his innocence ever since.
Notice of Decision
The decision of the First-tier Tribunal having been set aside, I remake the decision on the appeal by dismissing it on all grounds.
No anonymity direction is made.

M.J.Blundell
Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 May 2022

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal Number: HU/18997/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 November 2020 (via Skype)

…………………………………

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

USMAN NASIR
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bukhari of Bukhari Chambers Solicitors
For the Respondent: Mr Tufan, Senior Presenting Officer

DECISION AND REASONS
1. This is an ETS case with a difference. The appellant is a Pakistani national who was born on 2 June 1989. He appeals, with permission granted by Judge Osborn, against a decision which was issued by Judge Griffith (“the judge”) on 21 April 2020. By that decision, the judge dismissed the appellant’s appeal against the respondent’s refusal of his human rights claim.
2. The appellant has a long immigration history. I need not set it out in full. For present purposes, it suffices to note that he entered the UK as a student in March 2011. His leave in that capacity was subsequently extended but was then brought to an end in August 2014 when he was served with (what I understand to have been) a notice under s10 of the Immigration and Asylum Act 1999. That notice was served because the respondent believed that the appellant had, in 2012, obtained a TOEIC English language certificate by the use of a proxy. The appellant challenged that decision by way of an application for judicial review. He also made a host of different applications for leave to remain or for residence documentation under EU Law. Eventually, on 14 January 2019, those two different strands were brought back together when the judicial review proceedings, which had by that stage reached the Court of Appeal, were the subject of a consent order which was sealed by Master Meacher. The Statement of Reasons which accompanied the order sets out with precision and concision the reasons that agreement had been reached between the parties:
[1] The case turns on the respondent’s decision to refuse or curtail the appellant’s leave. The decision to refuse or curtail leave relied, in part, on the alleged use of dishonesty by the appellant in the taking and passing of an English language exam administered by the English [sic] Testing Service (“ETS”).
[2] The appellant has challenged the decision above by way of judicial review.
[3] The appellant has also made a human rights claim which was certified as ‘clearly unfounded’ pursuant to s94 of the Nationality, Immigration and Asylum Act 2002.
[4] The respondent has reviewed her position in light of Ahsan et al v Home Secretary [2017] EWCA Civ 2009. In accordance with the findings of that case and taking a pragmatic approach in the circumstances relevant to this appeal, the respondent proposes the certificate in the human rights decision is withdrawn. The decision is remitted to the respondent to reconsider her decision in light of the withdrawn certificate, and with particular regard to the materiality of the fraud accusation to the human rights claim. A new decision will be forthcoming to the appellant.
3. So it was that the respondent agreed, in the recitals to the Consent Order, that the appellant could make further human rights representations which she would duly consider. In the event of there being a further refusal and an appeal against the same, it was also agreed between the parties that:
AND UPON the respondent agreeing that in the event that the First Tier Tribunal finds in an appeal from the refusal of such a human rights claim that the appellant did not cheat, the respondent will take reasonable steps to put the appellant in the position he would have been in had the ETS deception allegation and the decision based upon it, not been made.
4. The appellant did make further human rights submissions, which centred on his ties to the UK and Article 8 ECHR. It was noted that he was in a relationship with a failed asylum seeker and that they had a young child together. The respondent refused the application on 5 November 2019. She concluded that the relationships could not satisfy Appendix FM as the appellant’s partner and child had no immigration status. She concluded that the appellant fell, in any event, for refusal under the suitability grounds of refusal due to his ETS fraud. It was not accepted that there would be very significant obstacles to the appellant’s reintegration to Pakistan or that his removal would be in breach of Article 8 ECHR. The appellant appealed against this decision to the FtT.
5. The appeal was heard by the judge, sitting at Hendon Magistrates’ Court on 6 March 2020. The appellant was represented by Mr Bukhari, the respondent was represented by Mr O’Monaghan, a Presenting Officer. The respondent relied on the customary generic and specific evidence of the fraud allegation. Mr Bukhari relied, amongst other documents, upon the report of the All Party Parliamentary Group on TOEIC, dated 18 July 2019. It seems that Mr O’Monaghan found himself in some difficulty as a result of the report; the judge noted at [29] his acknowledgment that it undermined the respondent’s evidence but he stated that he had no instructions not to pursue the appeal on account of it.
6. In her evaluation of the evidence, the judge expressed some concerns about the appellant’s credibility but it seems that she had more concerns about the weight which she could properly attach to the respondent’s evidence in the face of the severe criticism of it by the APPG: [57]-[61]. The conclusion she ultimately reached was as follows:
[62] Even if it is accepted that the initial evidential burden on the respondent has been discharged, and notwithstanding my concerns about the credibility of the appellant and whether he has provided an innocent explanation, the report of the APPG is sufficiently undermining that I am unable to make any finding as to whether the respondent has discharge the legal burden that the appellant was guilty of cheating.
7. In the remaining paragraphs of her decision, the judge considered whether the appellant’s removal would be in breach of Article 8 ECHR, whether inside or outside the Immigration Rules. She held that he could not satisfy paragraph 276ADE(1)(vi) of the Immigration Rules and that his removal would not otherwise contravene the ECHR. In making these findings, she returned, on at least two occasions, to her conclusion at [62], stating that she was unable to come to any ‘firm finding’ on the ETS allegation: [64] and [71], for example.
8. The grounds of appeal focus, as one might expect, on the judge’s failure to make a finding on the allegation of deception which has followed the appellant for the last six years. In granting permission to appeal, Judge Osborn noted that it was ‘at least arguable’ that the judge had erred in failing to make a firm finding one way or the other on that issue.
9. At the start of the hearing, I asked Mr Tufan whether it was to be submitted by the respondent that the judge’s decision represented an adequate resolution of the issues in the appeal. Acknowledging the importance of a firm finding on the question of deception, Mr Tufan accepted that the judge had fallen into legal error in failing to reach a definite conclusion, to the civil standard, on the central point in the appeal. I agreed, and I indicated that I did not need to hear from Mr Bukhari and that the judge’s decision would be set aside.
10. As to relief, I explained to the advocates that I was aware that there was to be a new test case in which consideration would be given to the APPG report, amongst other matters. I understood that it was to be heard before the end of the year, and suggested that the proper course would be to stay the appellant’s appeal to await the decision on that case. Both advocates were content with that course of action, and I indicated that I would so order.
Notice of Decision
The decision of the FtT involved the making of an error on a point of law. That decision is set aside in full. The decision on the appeal will be remade in the Upper Tribunal on a date to be notified.
No anonymity direction is made.

M.J.Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber