Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/10635/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons promulgated
On 10 October 2016
On 29 November 2016

Before

Deputy Judge of the Upper Tribunal I. A. Lewis

Between

Priyanka Niranjanbhai Shah
(Anonymity order made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Ms M Malhotra of Counsel instructed by Law Lane.
For the Respondent: Mr K Norton, Home Office Presenting Officer.

DECISION AND REASONS
1. This case comes before me to remake the decision in the appeal following the decision of Deputy Upper Tribunal Judge Woodcraft promulgated on 8 September 2016 finding an error of law in the decision of First team Tribunal Judge Ford (promulgated on 7 January 2016).

Background
2. The Appellant, a national of India born on 7 July 1981, appeals against a decision of the Respondent dated 17 March 2015 cancelling her earlier leave pursuant to paragraph 321A(1) of the Immigration Rules, and consequently refusing leave to enter. The Respondent was satisfied that the Appellant had previously obtained leave as a Tier 4 Migrant on 10 October 2013 (valid until 14 February 2015) in reliance upon a TOEIC certificate from Educational Testing Service which was fraudulently obtained.
3. The Appellant's immigration history, and the details of the Respondent's decision are known to the parties, are set out in the documents on file, and also are adequately recorded in the respective decisions of Judge Ford and Judge Woodcraft: it is unnecessary to rehearse them in further detail here. Suffice to say for present purposes that in setting aside the decision of First-tier Tribunal Judge Ford, Deputy Upper Tribunal Judge Woodcraft set the parameters for the hearing before me, with reference to the guidance in Shehzad [2016] EWCA Civ 615, in the following terms:
"[T]he Respondent had discharged the initial burden of proof upon her of establishing deception. The case upon rehearing will be for the Appellant to provide an innocent explanation." (paragraph 10).
Preliminary Matters
4. In correspondence with the Tribunal the Appellant's representatives had raised an issue in respect of potential adjournment of the hearing. Ms Malhotra indicated that no such application was pursued before me.
5. Although it was necessary to afford the representatives some reading time - a supplementary bundle having been submitted by the Respondent and a further witness statement filed on behalf of the Appellant - in due course both representatives indicated that they were ready to proceed with the appeal.
Consideration
6. It is clear that Judge Woodcraft concluded that the Respondent had discharged the initial burden of proof to establish deception by reference to supporting evidence for Rebecca Collins and Peter Millington, and the ETS records wherein the Appellant test results were judged to have been invalid (rather than merely questionable). It is unnecessary to revisit this finding.
7. In her evidence before me, the Appellant adopted her witness statements of 9 December 2015 and 7 October 2016. She was then cross-examined and re-examined. I have kept a note of her evidence in the record of proceedings, and have had regard to everything that was said during the hearing in reaching my decision.
8. Essentially, the Appellant denies the Respondent's core allegation that somebody else took her ETS test in May 2013. In her submissions Ms Malhotra emphasised that the Appellant had given an account of the circumstances of taking the test that rang true, and also that it was apparent from her command of English that she was not a person who needed to cheat in order to secure a satisfactory result in an English test. Indeed it was this latter aspect that it was suggested was a key fact and powerful indicator that it was unlikely that the Appellant would have cheated.
9. It is a feature of this case that the Appellant when interviewed on 17 March 2015 upon her return to the UK after a trip to India, said that she had not sat any further English tests other than the IELTS in 2008 and the ABE for her indefinite leave to remain; she denied submitting a TOEIC test in 2013. On appeal the Appellant has sought to explain the answers on the basis of confusion and poor memory recall in circumstances where she had just arrived in the UK after some eight hours travelling. I note that First-tier Tribunal Judge Ford did not accept this explanation: he found, in effect, that the Appellant was alert to the by then widely publicised issues in relation to ETS tests, and was essentially evasive. However, in his overall evaluation Judge Ford concluded that the reason for evasion was not so much deception as a wish to avoid "being tarred with the same brush" as others: see paragraphs 17 and 18.
10. I have read the interview conducted on 17 March 2015 very carefully, and have considered the Appellant's response to it on appeal. I do not accept her explanation of fatigue and confusion. It is clear that she gave a very detailed account of the earlier IELTS test. Moreover in so far as she was being asked about English language testing there was more than sufficient to trigger her memory in respect of the 2013 test, and indeed a direct question in this regard. I do not accept that she answered question 28 in the interview in the negative because she had forgotten in her tiredness.
11. I conclude on a balance of probabilities that the Appellant deliberately told an untruth at the interview on 17 March 2015. Irrespective of the motivation for this untruth, the fact that it was deliberately told is necessarily damaging to her overall credibility. Moreover, in my judgement it is also damaging to the credibility that she has offered a false explanation for the circumstances of the telling of this untruth.
12. In such circumstances, and generally, I am not satisfied that the fact that the Appellant is able now to advance an account consistent with the notion of arranging and attending a TOEIC test, is a reliable indicator of the truth of that account.
13. Accordingly, what I am left with to balance against the Respondent's evidence is the, albeit well-founded, assertion that the Appellant very probably did not need to cheat to secure a satisfactory results in her English language testing. Whilst I take that into account, I am not prepared to conclude that this is sufficient to outweigh the evidence provided by the Respondent. It is readily possible to envisage circumstances in which a competent student nonetheless cheats: for example, possibly because it is easier, or because of some malign influence, or because of a lack of confidence in their own ability. Whilst I accept that the Appellant's ability is a helpful and relevant indicator as to the likelihood of cheating (or more particularly not cheating), it is not determinative.
14. In all such circumstances I conclude that the Respondent has discharged the burden of proof in establishing that the Appellant did not herself sit her TOEIC examination, and the Appellant has failed to offer an 'innocent explanation', or otherwise demonstrate contrary to the Respondent's evidence that she did indeed sit her own exam.
15. I conclude that the Respondent's invocation of paragraph 321A(1) was appropriate: the Respondent's decision was in accordance with the Immigration Rules.
16. Ms Malhotra indicated that she had no instructions to abandon any arguments on Article 8 of the ECHR, but she acknowledged that the Appellant's case in this regard would be in some difficulty in the event of an adverse conclusion in respect of the issue of deception. She did not seek to lead out any further evidence from the Appellant in this regard, or develop matters in submissions. Mr Norton, for the Respondent, emphasised, as per the Notice of Immigration Decision, the circumstances of the deception and in turn the impact upon the way in which the Respondent's husband had secured his British citizenship. Moreover there was no particular evidence before the Tribunal to suggest that the couple could not establish and continue their family life together in India.
17. In circumstances where the Article 8 case has not been articulated or amplified before me, I do not propose to rehearse the relevant case law and statutory provisions in respect of public interest. In my judgement it is sufficient to say that the Respondent's position - that the removal of the Appellant is proportionate in circumstances where she has practised deception, and there being no adequate evidence that family life cannot be established and enjoyed in her country of nationality with her partner who is also Indian in origin - is the position that I reach on the available evidence. The Respondent's decision does not breach the Appellant's or anybody else's human rights.

Notice of Decision
18. The appeal is dismissed.
19. No anonymity order is sought or made.

Deputy Judge of the Upper Tribunal I. A. Lewis 26 November 2016

TO THE RESPONDENT
FEE AWARD (This is not part of the Decision)
I have dismissed the appeal and accordingly there can be no fee award.

Deputy Judge of the Upper Tribunal I. A. Lewis 26 November 2016