Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06784/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th November 2016
On 6th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

mr Vishal Maheshbhai Sharma
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R Sharma (Counsel)
For the Respondent: Mr T Whitwell (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. On 11th February 2015, the appellant was served with notice of refusal of leave to enter. He is a citizen of India who arrived at Heathrow Airport with leave to remain as a spouse or partner, given to him on 25th November 2013. However, the Immigration Officer found that false documents had been relied upon by the appellant in order to obtain his leave to remain. His leave was cancelled under paragraph 321A(2) of the Immigration Rules (“the rules”) and also on the basis that what was described as his employment of deception amounted to a significant change of circumstances, justifying cancellation of leave under paragraph 321A(1) of the rules.

2. The basis of the decision was use of a certificate by the appellant as showing his abilities in English, following a test taken at the Premier Language Training Centre on 20th August 2014, was false. The certificate, from Educational Testing Service (“ETS”) had prompted an inquiry by the respondent using voice verification software. The Immigration Officer refers in the notice of decision to a finding by ETS that there was significant evidence that a single person undertook multiple tests on that occasion and that the appellant’s certificate was fraudulently obtained.

3. In a decision promulgated on 9th October 2015, the appellant’s appeal against refusal of leave to enter was dismissed by First-tier Tribunal Judge Cameron (“the judge”). Before the judge was a substantial body of evidence adduced by the respondent, including witness statements. The judge heard evidence from the appellant and also from his wife. Overall, the judge found that he was not satisfied that the appellant had shown on a balance of probabilities that he undertook the test himself and was therefore satisfied, to the same standard, that the certificate he relied upon was not genuine. He concluded that the Immigration Officer correctly found that the appellant had used deception when relying upon the certificate to seek to remain in the United Kingdom.

4. Permission to appeal was granted on 6th April 2016. The judge granting permission considered that the decision did not show the weight attached to different features of the evidence, including the witness statements provided by the respondent. In a rule 24 response provided by the Secretary of State later that month, the appeal was opposed. The findings of fact made by the judge, leading to the conclusion that the appellant had used deception, were open to him on the evidence.

Submissions on Error of Law

5. When the matter first came before me on 2nd August 2016, submissions were made by the parties, Mr Sharma for the appellant and Ms Z Ahmad for the Secretary of State, concerning error of law. Mr Sharma said that the appellant had a right of appeal, and was not caught by the judgment in Shehzad and Another [2016] EWCA Civ 61. That case concerned a removal decision under section 10 of the 1999 Act, the appellant’s leave having been curtailed after ETS informed the respondent’s officials that there was an anomaly in their English language tests, indicating that the tests had been taken by proxy. The Court of Appeal found that Mr Shehzad had not made a human rights claim before bringing his appeal and so had no in-country right of appeal under section 92(4)(a) of the 2002 Act. In the present appeal, the appellant was given a period of leave as a spouse and so had made a human rights claim before bringing his appeal against refusal of leave to enter.

6. In considering the evidence, including witness statements made by Ms Collings and Mr Millington, the judge erred in asking himself whether the Secretary of State had provided sufficient evidence to discharge the evidential burden, in the absence of any independent evidence from the Secretary of State. At paragraph 94 of the decision, the judge erred in directing himself that the relevant question was whether the appellant had shown, on a balance of probabilities, that he took the English language test himself. The correct approach, in the light of SM and Qadir [2016] EWCA Civ 1167 was this: first, assess whether the Secretary of State has discharged the initial evidential burden; second, consider whether the appellant has provided an innocent explanation to meet the prima facie case and, finally, ask whether the Secretary of State had discharged the legal burden of showing that her case on deception has been made out. The judge referred to the generic evidence produced by the Secretary of State and seemed to simply decide whether it was admissible, rather than giving it due weight. He took into account the expert evidence of Dr Harrison but made no real assessment of it and, again, did not clearly attribute weight to it. The judge also took into account Project Façade material as supporting the Secretary of State’s stance that the appellant relied upon a proxy. However, that evidence did not clearly reflect all the tests taken at the centre in the period of time concerned. It appeared to be an assessment of only 75% of the test taken.

7. The appellant had gained pre-entry qualifications in English and there was no reason for him to take another test, still less to cheat in such a test. The judge gave adverse weight to the presence of an agent at the test centre and payment by the appellant of a high fee but he had not properly considered the innocent explanation offered by the appellant. Even if he were entitled to draw adverse inferences, this was not sufficient to enable a rational conclusion that the Secretary of State had discharged the legal burden upon her. The judge was required to weigh all the evidence in the round and, in the light of SM and Qadir, perhaps to give little weight to the affidavit evidence from Mr Millington and Ms Collings.

8. Ms Ahmad doubted that the application for leave which resulted in a spousal grant to the appellant amounted to the making of a human rights claim. There was a difference between seeking leave as a spouse and seeking to remain on the basis of human rights. The guidance given in Shehzad and Another fell to be applied. The correct conclusion was that the Tribunal had no jurisdiction. In any event, the decision showed that the judge was satisfied that the Secretary of State had discharged the evidential burden. He then went on to make an assessment of the individual case, without error. Even if it were accepted that there was an error in relation to the burden on the appellant, there were sufficient factual findings at paragraphs 67 to 115 of the decision to sustain the decision. The judge took into account adverse findings such as the presence of the agent and the high fee and scrutinised the evidence carefully. The grounds did not suggest that anything had been overlooked by the judge.

9. In a brief response, Mr Sharma said that it was clear from the grounds of appeal before the judge that the Secretary of State’s assessment was challenged and the case on further appeal did not amount to a mere disagreement with the judge’s findings. The judge had failed to ask himself what weight should be given to the Secretary of State’s witness evidence and there was only fleeting reference to Dr Harrison’s report.

10. Having considered the brief submissions regarding Shehzad and section 113 of the 2002 Act, which contains a definition of a “human rights claim”, I gave directions for the error of law hearing to be relisted. I did so because the definition that appears in that section appears to require a person to have made a claim to the Secretary of State that removing him, requiring him to leave or refusing him entry would be unlawful under section 6 of the Human Rights Act 1998. The appellant’s immigration history appeared to reveal an application for leave to remain as a spouse, leave being given in that capacity on 25th November 2013. The application itself was not before the Upper Tribunal and, in any event, I considered that further consideration was required regarding whether an application for leave to remain could rationally fall within the definition of a human rights claim contained in section 113.

Submissions on 28th November 2016

11. On this occasion, Mr Sharma appeared for the appellant and Mr Whitwell, Senior Home Office Presenting Officer, for the respondent. Mr Sharma handed up a skeleton argument which contained his submissions regarding Shehzad and whether or not the appellant has an in-country right of appeal. He said that the appellant’s second period of leave was granted to him as a spouse and it necessarily followed that he had made a human rights claim, in his application for such leave. A supplementary bundle of documents was prepared and there was also a supplementary witness statement, setting out the appellant’s recollection of events when he was interviewed by the Immigration Officer and refused entry clearance. Mr Sharma said that the form the appellant completed, FLR(M) must be read as revealing a human rights claim within the meaning of section 113. When the appellant presented at port, he clearly sought entry. The appellant’s case was that the Secretary of State had taken his application as a human rights claim. It therefore fell within section 92(4) of the 2002 Act, in its un-amended form, the appellant being a person who had made a human rights claim while in the United Kingdom. Mr Sharma handed up a copy of the guidance given to case owners on rights of appeal, in the version published on 15th November 2016. The application for leave as a spouse was accompanied by a letter from the appellant’s solicitors in which it was asserted that a genuine and subsisting marriage existed. The Secretary of State was given correspondence which showed clearly the prospect of separation should the appellant be removed. The appellant and his wife were contemplating separation at the time of the interview at Heathrow airport. The Secretary of State plainly took all of this as a claim which engaged human rights.

12. Mr Whitwell said that the implicit human rights nature of the claim did appear to be revealed in the documents the appellant sent to the Secretary of State. Those that revealed the mutual feelings between the appellant and his wife were rather beside the point, however. The guidance did clearly show that there was no need to expressly state in any case that a claimant was making a human rights claim. The difficulty was that the correspondence was clearly not written with any regard to the prospective removal of the appellant. The November 2016 guidance was not in place when the decision giving rise to the present appeal was made. The key question was whether the guidance in Shehzad had an impact in this case. So far as evidence was concerned, Mr Whitwell said that the Secretary of State now had the audio recordings and maintained her stance that the appellant had used deception. This was important because the appellant’s solicitors had been pressing for this evidence to be made available. This had now been achieved.

13. In a brief response, Mr Sharma said that the version of the form (FLR(M)) completed by the appellant came into being after the change to the rules in 2012. The case he made clearly fell within Appendix FM of the rules.

Conclusion on Error of Law

14. The first point to consider is whether the appellant has an in-country right of appeal at all, in the light of Shehzad. Is his case substantially different from that of the appellant, Mr Shehzad, who was served with notice of a removal decision under section 10 of the 1999 Act? Having given this matter considerable thought, and having been assisted by the parties’ representatives, who made available form FLR(M) and relevant guidance issued to caseworkers, I conclude that the answer is yes. Section 113 of the 2002 Act defines a human rights claim as a claim made by a person to the Secretary of State at a place designated by her (although no such place has been designated) “that to remove the person from or require him to leave the United Kingdom or to refuse him entry to the United Kingdom (this last phrase being added by the Immigration Act 2014 before the decision giving rise to the appeal was made) would be unlawful under section 6 of the Human Rights Act 1998.”

15. On arrival from India, the appellant was interviewed by an Immigration Officer on 11th February 2015. There is no dispute between the parties that in that interview, the appellant was questioned in detail about his circumstances, including his family circumstances. The witness statement he made on 28th November 2016 contains the unsurprising recollection that he told the Immigration Officer that he was living with his wife and her family and that they could not live without each other. It is also not in dispute that the Immigration Officer telephoned the appellant’s wife and asked her questions about the family’s circumstances. I accept the claim revealed in the witness statement that he sought to persuade the Immigration Officer that cancelling his visa, with inevitable removal, should not occur without his being given a chance to explain that he had not used deception in an earlier application for leave. Taking a sensible and pragmatic approach, the inference I draw from the interview is that the appellant sought to resist removal precisely because of his family circumstances here. In those circumstances, I accept that he made a human rights claim immediately before service upon him of notice of refusal of leave to enter, on the same day. He is not, therefore, a person who falls within the category of claimants who have no in-country right of appeal, as explained in Shehzad.

16. Turning to the substantive merits of the case that the judge made an error of law, it is apparent from the decision that it has been prepared with considerable care by the very experienced author of it. Mr Sharma drew attention to the clear guidance given by the Court of Appeal in SM and Qadir [2016] EWCA Civ 1167 and to the judge’s own analysis, which appears at paragraph 94 of the decision. Of course, that paragraph cannot be read in isolation from the rest of the decision but it is clear that it represents the conclusion of the assessment and reasoning, beginning as it does with the words “taking into account all of the evidence available”. The judge finds that the appellant has not shown on a balance of probabilities that he undertook the English language test himself and then follows this with a conclusion that he (the judge) is satisfied on a balance of probabilities that the certificate provided was not genuine. This amounts to a reversal of the burden of proof. The Secretary of State is required to show that she has discharged the burden of showing falsity or deception. The judge was required to ask himself first, whether the Secretary of State had discharged the evidential burden, in the light of what has been described in similar cases as her “generic evidence”, meaning the several witness statements. If so, her case requires a response from an appellant, who might, as appears in this appeal, offer an explanation. The next question is whether the Secretary of State has discharged the legal burden upon her and has proved her case. I conclude, therefore, that the decision does contain an error of law and must be set aside and remade.

17. As to venue, Mr Whitwell informed me that the Secretary of State now has available the audio recordings in the case, which the appellant’s solicitors have been seeking. That evidence was not before the First-tier Tribunal Judge. Although at first sight it would be attractive to keep the case in the Upper Tribunal, I agree with Mr Whitwell’s submission that as this evidence will form a salient feature in the remaking of the decision, the appropriate venue is the First-tier Tribunal.

18. The decision will be remade at Taylor House before a judge other than First-tier Tribunal Judge Cameron.

Notice of Decision

The decision of the First-tier Tribunal is set aside. It will be remade in the First-tier Tribunal at Taylor House. No findings of fact are preserved.

Signed Date

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY

No anonymity direction has yet been made in these proceedings and there was no application before me. In these circumstances I make no direction.

Signed Date

Deputy Upper Tribunal Judge R C Campbell