Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06752/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 July 2016
On 23 August 2016

Before

UPPER TRIBUNAL JUDGE PITT
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

the Secretary of State for the Home Department
Appellant
and

MR ZIAUR RAHMAN
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr C Avery, a Home Office Presenting Officer
For the Respondent: Ms A Hizami, of Counsel

DECISION AND REASONS
Introduction
1. No anonymity direction is made.
2. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Gibbs who, in a decision promulgated on 13 January 2016, allowed the appeal of Mr Rahman ("the claimant"). The claimant had appealed against the Secretary of State's decision to refuse his application for leave to remain in the United Kingdom as a Tier 4 (General) Student. The Secretary of State refused to grant further leave to remain under paragraphs 322(1A) and 245ZX of the Immigration Rules HC395 (as amended).
Background Facts
3. The claimant is a citizen of Bangladesh whose date of birth is 16 April 1973. On 28 March 2014 he applied for further leave to remain in the UK as a Tier 4 (General) Student. The Secretary of State refused that application on the basis that the claimant had obtained his Test of English for International Communication ('TOEIC') certificate fraudulently. The Secretary of State also considered that the claimant had not provided evidence that he had a valid Confirmation of Acceptance for Studies ('CAS').
The appeal to the First-tier Tribunal
4. The First-tier Tribunal found that the Secretary of State had not discharged the burden of proof upon her to demonstrate that the claimant had used deception when obtaining his TOEIC certificate. The judge also found that, although the claimant had not provided a valid CAS, this was as a result of the problems with his TOEIC certificate. On that basis the judge found that the Secretary of State had failed in her duty to give the claimant an opportunity to address the grounds for refusal relying on the case of Naved (Student - fairness - notice of points) Pakistan [2012] UKUT 14 (IAC).
The Appeal to the Upper Tribunal
5. The Secretary of State sought permission to appeal to the Upper Tribunal. The first ground of appeal was that the judge had erred in concluding that the claimant in the instant case was in a similar position to that in the case of Patel (Revocation of sponsor licence - fairness) India [2011] UKUT 211. The Secretary of State asserts that the claimant's application for further leave was submitted on 28 March 2014 and that there was no accompanying CAS as confirmed by the claimant. It was submitted that the First-tier Tribunal Judge made a mistake as to a material fact. The Secretary of State refers to the Educational Testing Services' ('ETS') Secure English Language Test ('SELT') source data document which was attached as Annex A to the witness statement of Ms Singh. It was submitted that this document indicated that the Secretary of State was notified by ETS on 30 May 2014 of the questionable nature of the claimant's tests taken on 25 July 2012 and the invalidation of the two tests taken on 22 August 2012. The Secretary of State asserted that as this notification occurred some two months after the submission of the claimant's application for further leave, it was an impossibility for this to have caused any interference in the claimant's ability to obtain a CAS.
6. The second ground of appeal asserts the judge erred in concluding that there is no specific reference to the claimant in the evidence provided by the Secretary of State to support the allegation of fraud. It is also asserted that the First-tier Tribunal failed to apply the correct standard of proof.
7. On 10 June 2016 First-tier Tribunal Judge Landes granted the Secretary of State permission to appeal. However, that permission was restricted solely to the First-tier Tribunal's findings and conclusion with regard to the CAS. The Secretary of State was not granted permission to appeal against the findings of the judge in relation to the ETS language certificate or with regard to the judge's findings and application of the standard of proof.
The Hearing before the Upper Tribunal
8. Mr Avery relied upon the grounds of appeal. He submitted that the ETS results were not available at the time that the claimant had submitted his application: the problems associated with ETS had only just become publicly available. He submitted that in this case, even if the claimant's college had refused to issue the CAS on the basis of concerns with regard to the TOEIC certificates, if that was based upon the general knowledge in the academic community following the Panorama programme that would not be the fault of the Secretary of State and therefore no fairness issues arose. It was some two months later that the Home Office was given specific information about the claimant.
9. Ms Hizami submitted that from the evidence in front of the judge the claimant found it impossible to get his CAS in March 2014 because he was tainted by the general awareness in the academic community that there were problems with certificates obtained through ETS. When asked where in the determination this was made clear in terms of the timing, she indicated that that was not in the determination. We referred Ms Hizami to various pieces of evidence that were in the bundle and asked her to take us to evidence that was before the First-tier Tribunal judge that supported the judge's finding that it was because of difficulties with the ETS certificates that the college had refused to provide the claimant with a CAS. We noted that the Record of Proceedings indicated that the judge had asked the claimant a question to confirm that he did not have a CAS to which the claimant responded that was correct and that he 'had an offer letter and they said they would provide him with a CAS letter but then they said there was a problem because of the TOEIC and now the licence is revoked'.
10. Ms Hizami was asked to consider her Record of Proceedings. She indicated that she had recorded 'and they said they would think about giving me a CAS. The college revoked licence he's lost his money'. We also referred Ms Hizami to the offer letter that was before the judge dated 29 March 2014. It is clear from that offer letter that the claimant's college, Global Vision College, indicated that the claimant would be eligible for a CAS once he had met a number of conditions which included payment of a tuition fee and administration fee and providing evidence of his English language test certificate.
11. We also referred to the claimant's witness statement which, at paragraph 23, indicated that "in these circumstances it was open to the Secretary of State to refuse my application on the basis that I have not provided a CAS and therefore was not eligible for 30 points for attributes". No reference was made in that witness statement to difficulties in obtaining a CAS as a result of problems with ETS TOEIC certificates.
12. Ms Hizami did not take us to any other evidence to support the judge's finding that it was as a result of the problems with the ETS test certificates that the claimant had not been provided with a CAS at the time of his application. She indicated that if our conclusion was that there was no evidence to support the judge's findings on the CAS we should still preserve the findings regarding the issue of deception in relation to the language testing certificate.
Discussion
13. The First-tier Tribunal Judge in this case found at paragraph 24 that:
"24. The appellant accepts that when he made his application on 28 March 2014 he did not provide a valid CAS. His evidence is that he was able to provide an offer letter from Global Vision College but they would not issue a CAS because of the problems with his TOEIC certificate. Although Ms Nizami concedes that the appeal cannot succeed under the Immigration Rules because of this her submission is that the appellant has been treated unfairly because he was not given the opportunity to respond to the allegations made against him.
25. I find that the appellant finds himself in a situation analogous to that in Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211 in so far as he has been placed at a disadvantage because of decisions taken by both ETS and the respondent about which he has not been consulted or had the opportunity to challenge. It was because of this that he was unable to obtain a new CAS. The appellant is now aware of the standing of his TOEIC certificate and he is therefore aware of the remedial action that he must take to ensure he can obtain a valid CAS. I am satisfied that it is only fair that he be afforded the opportunity to obtain a CAS?" (emphasis added)
14. We consider that the judge has fallen into error and has made a material mistake of fact. It is clear that a mistake of fact can amount to an error of law - see MM (Unfairness; E & R) Sudan [2014] UKUT 00105 (IAC). What is required is that there is a mistake or ignorance of a relevant fact and that the fact is established in the sense that it could be shown by objective and uncontentious evidence.
15. In this case it is clear from the offer letter, referred to above, that Global Vision College, as at the date of the claimant's application for further leave to remain, had not refused to issue a CAS because of any concerns about an English language test certificate. There is no mention in that letter of any concerns about the claimant's test certificate. The letter indicates that the reason that no CAS at that point had been provided was because the claimant has not paid the relevant fees and had not even provided his TOEIC certificate to the college. Further, the evidence in the document annexed to Ms Singh's witness statement shows that ETS did not notify the Home Office of the invalidity of his test results until the end of May 2014 which is two months after the claimant had submitted his application.
16. The judge appears to have assumed that the reason that no CAS was provided at the date of application was connected to the issues with the TOEIC. It was our view that the evidence before the judge did not allow for this conclusion and that a material mistake of fact was made. The decision of the First-tier Tribunal is set aside for these reasons
17. The Tribunal's finding that the burden of proof (to prove that the claimant's ETS TOEIC test certificate was obtained by deception) had not been discharged and therefore the claimant's application should not have been refused under paragraph 322(1A) of the Immigration Rules stands, however.
Re- Making the Decision
18. As above, the evidence here indicates that at the time of the claimant's application no valid CAS had been provided because the claimant had not paid the requisite fees nor had he provided his TOEIC certificate to the college. The respondent was not required to wait for the CAS before making her decision or revert to the claimant on the grounds of fairness. The appeal has to fail where no CAS was provided with the application.
Notice of Decision
The decision of the First-tier Tribunal is set aside to the extent set out above. We re-make the appeal as refused.
The Tribunal's finding that the burden of proof (to prove that the claimant's ETS TOEIC test certificate was obtained by deception) had not been discharged and therefore the claimant's application should not have been refused under paragraph 322(1A) of the Immigration Rules stands.

Signed P M Ramshaw Date 23 August 2016

Deputy Upper Tribunal Judge Ramshaw