Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07268/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision and Reasons Promulgated
On 26 January 2017
On 02 February 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Secretary of State for the Home Department
Appellant
and

Adeel Aslam
[No anonymity direction made]
Respondent

Representation:
For the claimant: In person, not legally represented
For the appellant: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Broe promulgated 5.8.15, allowing the claimant's appeal against the decision of the Secretary of State, dated 11.2.15, to cancel his continuing leave to remain in the UK as a Tier 4 Student Migrant, and to refuse entry to the UK.
2. The Judge heard the appeal on 15.7.15.
3. First-tier Tribunal Judge Chambers refused permission to appeal on 13.1.16. However, when the application was renewed to the Upper Tribunal, Upper Tribunal Judge Grubb granted permission to appeal on 29.1.16.
4. First-tier Tribunal Judge Pedro granted permission to appeal on 18.5.16.
5. Thus the matter came before me on 26.1.17 as an appeal in the Upper Tribunal.
Error of Law
6. For the reasons summarised below I found no material error of law in the making of the decision of the First-tier Tribunal as to require the decision of Judge Broe to be set aside.
7. The claimant's application was refused pursuant to paragraph 320(7B) of the Immigration Rules because in an application resulting in the grant of leave on 5.12.13, he submitted a TOEIC English language certificate. Entry clearance was refused on the basis that the certificate had been fraudulently obtained by a proxy test taker and thus he used deception in order to obtain leave.
8. As in many other similar cases, ETS concluded that the claimant's certificate had been fraudulently obtained using a proxy test taker. Reliance was made on the now familiar generic evidence.
9. Judge Broe dealt with the case on the papers and noted the generic statements in relation to voice recognition software at [6], [9] and [10] of the decision, but found that the evidence adduced by the Secretary of State made no reference at all to the claimant.
10. The grounds of appeal assert that the judge's reasoning for allowing the appeal were entirely inadequate. Reliance was placed on the generic evidence, asserting that it detailed "extensively the investigation undertaken by ETS on this appellant's case ..." It is also asserted that paragraph 2 of the Immigration Officer's explanatory statement reveals that checks with ETS confirmed that the English language certificate submitted by the appellant was fraudulently obtained."
11. In granting permission to appeal, Judge Grubb considered that the Judge "does not appear to take into account the IO's evidence in the decision notice and explanatory report concerning the ETS response in respect of the appellant as being such a person. In failing to take that into account, the Judge arguably erred in law in finding that the respondent had not discharged the burden of proof upon her."
12. The recent decision of SM and Qadir (ETS - evidence - Burden of Proof) [2016] UKUT 229 (IAC), promulgated on 21.4.16, held that the generic evidence in combination with the evidence particular to the appellants in that case, sufficed to discharge the evidential burden of proving dishonesty, in which case the burden switches to the appellants, though the legal burden remains on the Secretary of State.
13. However, it is clear, and Mr Mills accepts, that there was no evidence before the First-tier Tribunal specific to this appellant. The usual computer printout linking the claimant's identity to the test centre, date of test, and impugned certificate, was not present in the Secretary of State's bundle.
14. In the circumstances, the First-tier Tribunal Judge was quite correct to find that none of the evidence related directly to this claimant. It follows that the evidence could not and did not cross the threshold of the evidential burden on the Secretary of State and thus the legal burden could not be discharged.
15. Judge Broe was entirely correct to allow the appeal. For the reasons outlined above, the Secretary of State's appeal against the decision of the First-tier Tribunal must fail.
Conclusion:
16. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such as to require decision to be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains allowed.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Deputy Upper Tribunal Judge Pickup

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: No fee has been paid by the claimant for these proceedings.

Signed

Deputy Upper Tribunal Judge Pickup

Dated