Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/00228/2016
IA/00568/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 February 2019
On 06 March 2019

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

Mr KHURRAM BAIG
Mrs SIDRA BAIg
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr S Karim, Counsel instructed by AWS Solicitors
For the Respondent: Ms S Cunha, Home Office Presenting Officer

DECISION AND REASONS
1. In a decision sent on 29 October 2018 Judge Burns of the First-tier Tribunal dismissed the appeal of the appellants, citizens of Pakistan, against the decision made by the respondent on 12 January 2016 to refuse leave to remain. (The appellants are husband and wife. Since the wife's appeal is heavily dependent on the first appellant, I shall hereafter refer for convenience to "the appellant"). The judge set out at paragraph 5:
"5. The Respondent's remaining substantive reason for refusal obstacle of both applications is that for the purposes of the First Appellant's application dated 29/10/2011 he had (subsequent to the date of the original application) submitted a TOEIC certificate from the Educational Testing Service (ETS) which certificate was based on a test allegedly taken by the Appellant at the Premier Language Training Centre, Trocoll House, Wakering Road Barking Essex 1G118PD on 16/1/2013, and that there was significant evidence to conclude that the certificate was fraudulently obtained by the use of a proxy test-taker. Hence paragraph 322(1A) of the Immigration Rules applied, which requires that leave to remain must be refused where false representations or false documents or information has been submitted, and 322(5) which provides that leave may be refused in the light of the Appellant's prior conduct".
2. The judge referred to leading cases on TOEIC/ETS cases, specifically Qadir [2016] UKUT 00229 (IAC) and Shehzad [2016] EWCA Civ 615 and concluded at paragraphs 33-36 as follows:
"33. In the particular case before me I am satisfied that the Respondent's evidence (which includes generic evidence but also a spreadsheet showing that the First Appellants' particular test was tested and found to be invalid), passes the onus to the Appellants to show he was not complicit in fraudulent testing.
34. For the reasons set out in paragraphs 15 to 27 above I find the evidence of the First Appellant and Mr Arshad to be inconsistent and unreliable.
35. On the one hand I have admissible generic but also specific evidence of the type recently accepted by the Court of Appeal, which suggests that there is a substantially less than one percent chance of error in the finding that the Appellant's test taken in January 2013 was taken by a proxy rather than by the Appellant himself. On the other hand I have the Appellant's unsatisfactory and inconsistent assertions that he did take the test himself.
36. I find on a balance of probabilities that the Appellant's test was taken by a proxy rather than by him, and it follows that he must have been complicit in false test provision in support of his 2011 application, and so he was rightly refused ILR by the Respondent under the Immigration Rules".
3. The judge went on to state, as regards Article 8, that:
"45. The First Appellant has a bad immigration record as it is now established that he has attempted to deceive the Respondent. To allow him to remain now undermines immigration control.
46. The private and family life on which the Appellants rely was established when they were in the UK precariously so little weight should be given to it.
47. The Appellants do not have a genuine and subsisting parental relationship with a qualifying child as their son is not yet 7 years of age. However I accept that he is nearly that age and he will have started to put down some roots in the UK.
48. I have had regard to the fact that under Article 3(1) of the UN Convention on the Rights of the child "in all actions concerning children ... the best interests of the child shall be a primary consideration" and that Section 55 of the Borders Citizenship and Immigration Act 2009 requires immigration decisions to be discharged having regard to the need to safeguard and promote the welfare of children who are in the UK.
49. I find that the best interests of the Appellant's son will be served by him being removed with his parents to Pakistan. It would be reasonable for him to be so removed. His parents have spent most of their formative years in Pakistan and they have relatives and family there to help and support them.
50. I have taken what the Second Appellant has written in her witness statement about family matters and conditions in Pakistan into account.
51. Taking all the above matters into account, I find that public interest outweighs the family and private life considerations and that the refusal of the Appellants' human rights claim is proportionate and lawful under section 6 of the Human Rights Act 1998".
4. There are two sets of grounds, one drafted by Mr Karim, one by Mr Balroop. The latter essentially goes into more detail rather than raising further grounds. As amplified by Mr Karim the grounds raised the following main submissions. It was said that the judge erred in:
(1) wrongly relying on paragraph 322(1A) as well as paragraph 322(5) against the appellants when the former had no application;
(2) in failing to consider the discretion and the balancing exercise required by paragraph 322(5) (reference was made to Ngouh, R (on the application of) v SSHD [2010] EWHC 2218 (Admin) (27 August 2010);
(3) in failing to apply the three-stage test as adumbrated in Qadir;
(4) in failing to make clear and properly reasoned findings with regards to the appellant's evidence regarding the test and his innocent explanation;
(5) in not having regard to the factors set out in paragraph 69 of Qadir; and
(6) in conducting a flawed and inadequate assessment of Article 8 treating the ETS issue as being determinative.
5. I am grateful to both representatives for their helpful submissions.
6. I consider ground (1) does not identify any error of law. Whilst the respondent's decision letter and the respondent's submissions before the FtT Judge did invoke paragraph 322(1A) in addition to paragraph 322(5) (see paragraph 5), the judge's decision focussed on the issue of deception, the judge concluding at paragraph 36 that:
"36. I find on a balance of probabilities that the Appellant's test was taken by a proxy rather than by him, and it follows that he must have been complicit in false test provision in support of his 2011 application, and so he was rightly refused ILR by the Respondent under the Immigration Rules".
Irrespective of whether this assessment was intended to address the paragraph 322(1A) issue, the judge's reasoning as set out here clearly addressed the subject matter of paragraph 322(5). I would accept as a matter of construction that paragraph 322(1A) must be referring to a current, not an historic, act of deception, but that does not affect the applicability of paragraph 322(5). If there was any error here, it was not material.
7. I would agree with ground (2) that the judge failed to take into account that paragraph 322(5) was a discretionary provision, but I do not consider this resulted in any material error because the judge's findings as to the appellant's use of deception were clearly informed by the view that the appellant's conduct was intentional and that it merited the application to him of paragraph 322(5).
8. Mr Karim submits as part of ground (2) that the judge also failed to treat application of paragraph 322(5) as one requiring a balancing exercise. It is correct that the judge does not expressly identify the need to undertake a balancing exercise, but I agree with Ms Cunha that the judge's assessment was in substance one that balanced factors for and against. An illustration of that is at paragraph 35 wherein the judge found:
"35. On the one hand I have admissible generic but also specific evidence of the type recently accepted by the Court of Appeal, which suggests that there is a substantially less than one percent chance of error in the finding that the Appellant's test taken in January 2013 was taken by a proxy rather than by the Appellant himself. On the other hand I have the Appellant's unsatisfactory and inconsistent assertions that he did take the test himself".
9. I see no merit in ground (3). The judge addressed at length the guidance given in Qadir and his summary at paragraph 29 encapsulates the three-stage test set out in Qadir:
"29. In such cases the legal burden of proof (of the Appellant's dishonesty) rests on the Respondent throughout and the standard of proof "belongs to the higher end of the balance of probabilities". There is also an initial evidential burden on the Respondent to adduce sufficient evidence to raise the facts in issue. Once this initial burden is discharged the onus passes to the Appellant to raise an innocent explanation. If he does so then the onus passes back to the Respondent to show that on a balance of probabilities that the Appellant's prima facie explanation is to be rejected".
10. The grounds contend that the judge erred in failing to apply in full the guidance contained in paragraph 57 of Qadir, in particular the second stage. Having explained at 57(a) that the respondent bears the initial evidential burden, Mr Justice McCloskey stated that:
"(b) The spotlight thereby switches to the applicant. If he discharges the burden - again, an evidential one - of raising an innocent explanation, namely an account which satisfies the minimum level of plausibility, a further transfer of the burden of proof occurs".
Mr Karim submits that the reference herein to "minimum level of plausibility" imports a lower standard of proof than the balance of probability.
11. However, first of all, I do not understand the Tribunal in Qadir to have been dealing in (b) with the standard of proof at all; it was concerned therein solely with the burden of proof. Second, on the basis of the judge's findings of fact as set out at paragraphs 33-36, the appellant had clearly failed to give an account which satisfied the minimum level of plausibility. Third, the judge only applied the balance of probabilities in the context of paragraph 57(c), that is, at the stage when the respondent has discharged the initial burden (a); the appellant has then attempted an innocent explanation (b); and the inquiry had moved on to (c). Paragraph 57(c) states:
"(c) Where (b) is satisfied, the burden rests on the Secretary of State to establish, on the balance of probabilities, that the Appellant's prima facie innocent explanation is to be rejected".
12. Strictly speaking, on the basis of the findings of fact made, the judge should in the appellant's case have ended the three-stage test at stage (b), but in any event the conclusion as stated in paragraph 36 (which is directed at stage (c)) and strictly speaking only arises if an applicant has provided a prima facie innocent explanation), is one that was entirely within the range of reasonable responses.
13. As regards ground (4), I am unable to agree that the judge failed to give adequate reasons for disbelieving the appellant's attempt at an innocent explanation. Ground (4) targets paragraph 15, but in fact the judge's reasons on the issue of deception commence at paragraph 10 and continue until paragraph 27, addressing matters for and against the appellant. Mr Balroop's grounds take issue with a number of the judge's identifications of inconsistencies, but I consider none amount to more than a mere disagreement with the judge's finding to different effect.
14. Turning to ground (5), Mr Karim highlights the list of relevant factors which the Upper Tribunal in Qadir saw as necessary to consider, namely:
"69. We turn thus to address the legal burden. We accept Mr Dunlop's submission that in considering an allegation of dishonesty in this context the relevant factors to be weighed include (inexhaustively, we would add) what the person accused has to gain from being dishonest; what he has to lose from being dishonest; what is known about his character; and the culture or environment in which he operated. Mr Dunlop also highlighted the importance of three further considerations, namely how the Appellants performed under cross examination, whether the Tribunal's assessment of their English language proficiency is commensurate with their TOEIC scores and whether their academic achievements are such that it was unnecessary or illogical for them to have cheated".
Mr Karim also assails what the judge said in paragraph 14:
"14. Mr Balroop submitted that the First Appellant had no reason to cheat in 2013 because by then also he must have been proficient in English having been already taught English in Pakistan; he had already successfully studied in the UK from 2005 completing courses taught in English, and he had already successfully passed the City and Guilds English exam in 2011. I accept these studies and exams and have examined the certificates. I accept these as providing some evidence in the First Appellant's favour of some level of proficiency in English on his part by January 2013. However, I have no way of comparing the standard of the 2013 TOEIC English test with the standard of English which the First Appellant may have required to complete his earlier studies and to obtain the City and Guilds test certificate. Furthermore, even if he was sufficiently proficient in English to have passed the 2013 TOEIC English test, he may have had some other undisclosed motive for preferring not to take it personally".
15. In my judgement, the grounds are incorrect to assert that the judge failed to have regard to these factors. A fair reading of paragraphs 10-27 discloses that all these factors were in the mind of the judge. Significantly, when it came to the issue of prior proficiency in English, the judge stated at paragraph 14 that he accepted that the appellant's previous exam results provided "some evidence in the ... Appellant's favour of proficiency in English on his part by January 2013". Mr Karim is right to say that the final sentence of paragraph 14 is speculation (he points to the words "... he may have had some undisclosed motive for preferring not to take it personally") but that was simply part of a proper weighing of the possibilities in advance of concluding at paragraphs 15-27 that the evidence the appellant gave about the circumstances in which he claimed to have taken the test was "unconvincing", "vague", "evasive" and marred by a "number of inconsistencies".
16. In light of the appellant's failure to succeed on grounds (1)-(5), ground (6) really lacks traction since the appellant's representative, Mr Balroop, conceded at the hearing that if dishonesty in the test was accepted "it would be difficult to make out any successful argument for the Appellants in this regard" (paragraph 37). The assessment of the appellant's Article 8 circumstances which the judge went on to conduct at paragraphs 38-51 was one that the judge was entitled to make which took into account all relevant considerations. It is wrong of the grounds to state that the judge treated his adverse finding on the deception issue as determinative. That ignores the purport of paragraphs 46-51 entirely.
17. For the above reasons I conclude that the judge did not materially err in law and accordingly his decision to dismiss the appellants' appeal must stand.
No anonymity direction is made.

Signed Date:28 February 2019

Dr H H Storey
Judge of the Upper Tribunal