Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11660/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 19 December 2016
On: 27 January 2017

Before

Deputy Upper Tribunal Judge Mailer

Between

Mr Mohammad Motiur Rahman
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent
Representation

For the Appellant: Mr S Ali, counsel
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a national of Bangladesh, born on 1 January 1979. His appeal to the First-tier Tribunal against the respondent's decisions dated 14 March 2015 cancelling his continuing leave to remain in the UK as a Tier 2 (General) Migrant and to remove him by way of directions, was dismissed by First-tier Tribunal Judge Wright in a decision promulgated on 16 March 2016.
2. The Judge found that the appellant had previously used deception, including the use of a proxy taker, to obtain an English language certificate.
3. In granting permission to appeal, Upper Tribunal Judge Grubb stated that it is arguable that the Judge's approach to the ETS evidence may no longer be sustainable in the light of the SM and Qadir case, compromised by the secretary of state in the Court of Appeal. It would be for the appellant to establish if any error of law was material, given the other matters referred to by the Judge, and in particular those at [22].
Background
4. The appellant entered the UK on 18 April 2008 on a work permit visa valid until 12 March 2013. A new work permit was granted on 5 August 2009 valid until 5 August 2014.
5. On 17 September 2012, he submitted a Tier 2 General Migrant application in order to undertake employment as a chef at Cinnamons in Woking. This was granted on 16 November 2012, valid until 27 September 2017. The appellant submitted his ETS TOIEC English language certificate. He claimed to have taken a TOEIC English language test at the Premier Language Training Centre on 21 August 2012.
6. On 5 February 2014, he submitted a new Tier 2 General Migrant application for indefinite leave to remain, which was withdrawn on 22 April 2014 after the Home Office requested evidence of his employment over the previous five year period.
7. The appellant returned to the UK on 13 March 2015 having visited Bangladesh. He was served with Home Office form IS 81 suspending his visa and requiring him to submit to further examination by way of interviews, regarding his alleged obtaining of leave by deception, namely his ETS TOIEC English Language test score, which was cancelled as invalid following the ETS investigation.
8. On 14 March 2015, his leave was cancelled under paragraph 321A(1) and (2) of the Immigration Rules. That Rule sets out the grounds on which leave to enter or remain which is in force is to be cancelled at port.
9. Paragraph 321A (1) provides for cancellation where:
(a) There has been such a change in the circumstances of that person's case since the leave was given that it should be cancelled or:
(b) False representations were made or false documents were submitted (whether or not material to the application, and whether or not to the holder's knowledge), or material facts were not disclosed, in relation to the application for leave; or in order to obtain documents from the secretary of state or a third party required in support of the application.
10. The Judge noted on the cancellation notice dated 14 March 2015 that the officer was satisfied that the appellant had used false documents, the ETS TOEIC English language certificate - in order to obtain his Tier 2 (General) leave to remain but which would have been refused under paragraph 320(7A) of the Rules if the true facts were known.
11. It was also contended that the appellant admitted to working in breach of his Tier 2 (General) conditions that were granted to him on 5 August 2009.
12. His leave was cancelled under paragraph 321A(1) and (2).
13. The Judge was not satisfied on the evidence that the appellant's account of having personally taken the English language test on 21 August 2012 is a consistent and credible one. The credibility of the appellant was "fatally" undermined for reasons set out in (i-vii) of [22] of the decision.
14. In the circumstances, when the immigration interview which was signed by the appellant as well as the evidence adduced by the respondent involving the use of voice verification software to check the ETS record of the appellant's speaking test and confirming that there was significant evidence to conclude that his certificate was fraudulently obtained, the Judge was satisfied that the appellant had obtained his Tier 2 General Migrant leave to remain by deception. He directed himself in accordance with authority as set out at [23].
15. Accordingly the appeal fell for mandatory refusal as the respondent had established on the balance of probabilities as a precedent fact that the basis for the general ground under 321A(2) was made out on account of both the English language certificate as well the appellant having worked without the necessary work permit/paperwork [24].
16. The Judge was also satisfied that the respondent had established on the balance of probabilities that there had been such a change in the circumstances of his leave since it was given, that it should be cancelled.
17. He went on to state that even if he is wrong about the appellant not having personally taking the English test, he nevertheless was satisfied that he clearly admits on numerous occasions during the interview to effectively having cheated during the tests and therefore that he has still deceived the authorities in obtaining the grant of Tier 2 General Migrant leave on 16 November 2012 [26].
18. His appeal was accordingly refused under the Rules. The Judge also considered an Article 8 claim outside the rules. He did not find that the removal of the appellant would constitute an interference with his Article 8 rights which is disproportionate to the legitimate public end of maintenance of a coherent and fair system of immigration control.
19. Mr Ali, who did not represent the appellant at the hearing, referred to the appellant's evidence before the First-tier Tribunal. He submitted that the appellant admitted that his friend helped him when he was preparing for the test but not at the time of the test itself. He therefore gave an innocent explanation.
20. He referred to questions 144-145 at the interview. The appellant was asked "when someone helps you in a test, is that cheating?" The appellant gave no answer. He answered at question 144 "yes or no." The appellant answered that that you can discuss a little bit in the exam.
21. Mr Ali referred to the appellant's evidence and witness statement. The interviewer made him "more stressed" after the long journey. He may have messed up some answers as he was feeling sleepy. It is not easy to remember everything relating to the test taken in August 2012. He wanted a Bengali interpreter for the convenience of communication.
22. He stated earlier that he did not think that much before answering. He was asked 158 questions. He thought it would be a short interview and thus said that he was fit to be interviewed and did not want to eat or drink anything. The interview however lasted more than two and a half hours. It was not read back to him as it was written on the record.
23. The appellant also contended with regard to a breach of conditions relating to his visa granted on 5 August 2009 that the Rules allowed him to work part time for another employer at the same trade. The amount provided by the respondent for different employers was consistent with the part time working. He was thus not required to get any permission from the respondent to work part time for a different employer as his original job was ongoing.
24. It was also contended that with regard to the supplementary employment, the respondent served a statement from HMRC and an extract relating to the employment record of an employee. That was produced to show that the appellant was in breach as he was working for other employers previously. However, at paragraph 8 of the grounds for permission to appeal, it is asserted that it was proved at the hearing that the NI number did not match to that of the appellant and he never worked for those employers.
25. He only worked up to 20 hours a week and the respondent did not adduce any evidence that he actually worked for more than 20 hours. The guidance states that permission was not required for supplementary work.
26. In his later grounds for permission to appeal presented to the Upper Tribunal, the appellant referred to the decision in SM and Qadir v SSHD (ETS - evidence - burden of proof) [2016] UKUT 00229 in connection with ETS/TOEIC appeals which had been recently upheld by the Court of Appeal. The respondent's appeal was dismissed with the consent of the secretary of state. The appellant's appeal was not heard prior to the decision in SM and Qadir which had not been promulgated then.
27. On behalf of the respondent, Mr Singh referred to the Rule 24 response.
28. He submitted that the First-tier Tribunal Judge directed himself appropriately. The grounds relating to the secretary of state withdrawing her appeal at the Court of Appeal in SM and Qadir are misconceived.
29. In fact the secretary of state indicated to the Court of Appeal in the case of Qadir that 40 ETS cases before the Court of Appeal would be reviewed in the light of the decision of the Upper Tribunal in Qadir, which was no longer being challenged. The respondent indicated that it was likely that she would concede some cases where the evidence of deception relied upon is "limited".
30. Mr Singh submitted that none of the categories applied to this case. The secretary of state's review was confined only to those cases before the Court of Appeal and it is not a general review of all ETS cases "per se."
31. In the present appeal, there was a clear admission by the appellant that he used a proxy (who happened to be his friend) to help him pass the TOIEC test.
32. Mr Singh set out in detail the appellant's interview on 13 March 2015.
33. Mr Singh noted that the appellant had been asked questions during his interview about his writing score. He replied that did not remember. He was asked whether he got any help on his writing test. He replied that his friend explained to him and he wrote that down. He does not remember the kinds of questions. He said whatever he did not understand with regard to that test his friend explained to him. He said he asked his friend for help with maybe 40 or 50 questions. He said that he just asked him what he did not understand.
34. He was asked (Question 115) whether he only took a listening and writing test with TOIEC in 2012. He agreed that it was just those two. It was put to him at the interview that the TOIEC certificate of 2012 shows that he scored 180 out of 200. He agreed. He was asked (Question 117) whether, if his friend had not helped him he would have got a much smaller score. He answered "could be a bit up and down."
35. It was put to him (Question 118) that the TOIEC certificate that he used was in his submission for the Cinnamons job and visa. That showed someone with his name sat a speaking and reading test as well. He answered "maybe, I don't remember."
36. He was then asked (Question 119) "so you don't remember at all having taken a speaking or reading test?" He answered "yes." He then confirmed that he did not remember whether or not he took those tests.
37. He was then asked (Question 21) with regard to the TOIEC speaking test whether somebody else took it. He said "Ok - I think I did the test but don't remember."
38. The question was repeated. He was again asked with regard to the speaking test taken, whether somebody took it for him. There was no reply to that question.
39. He was asked at Question 123 whether he had anything to say in response to that. He replied that "they talked to me in the test, but I don't know if anyone else took the test." He was asked what they said to him "in the test." He answered that he did not remember. They spoke in English and then explained it in Bengali. The same person asked him in English and then explained in Bengali.
40. He stated with regard to the English speaking test that "my friend was taking the test with me" (Question 132).
41. It was put to him - Question 136 - that there was information available showing that someone took the speaking and reading test for him. He replied "I don't know." He then said that he did take the test.
42. He was asked whether his friend helped him on the reading test as well. He replied "yes" - Question 138.
43. He was asked about the reading test. When asked how it took place, he replied "what reading test? What is a reading test?" - Question 140.
44. He also admitted during interview that he worked at Roy Whitney Ltd without a work permit visa. He stated that he did not have any paper to work there but it was not a proper job. He just helped them.
45. It was put to him that he also admitted that his friend helped him in his TOEIC exam, to which he answered "yes." It was also put to him that if his friend had not helped him, he would have got very low marks, to which he replied "a bit less, yes."
46. He was directly asked at Question 144, whether, "when someone helps you in a test, is that cheating?" He gave no answer.
47. He was then asked "yes or no". He answered "you can discus a little bit in the exam" - Questions 144-146.
48. It was put to him that the records show that he did not even sit the speaking or reading exam, but someone else did. He did not respond.
49. It was put to him that he said in very broken English at the beginning of the test that he wanted Bengali with no English. Accordingly, how could he have scored full marks on his TOEIC speaking test, namely 200/200? There was again no response. He was asked whether he had a response. He replied "I have nothing to say."
50. Mr Singh submitted that the point taken on behalf of the appellant, namely that he obtained assistance from his friend prior to the test being taken is accordingly not correct. It is particularly striking that he obtained full marks for speaking.
51. Accordingly, Mr Singh submitted that the findings by the Judge at [22] were open to him. He referred in particular to the finding at paragraph [22(v)] that the appellant made disingenuous attempts during cross examination to suggest that his friend, whom he could not even name initially in interview, and who did not appear as a witness at the hearing or make a witness statement, in fact only helped him during what amounted effectively to preparation for the English language test, as opposed to during the test itself.
52. Mr Singh submitted that each page of the interview record was signed by the appellant, including the front page. The appellant wanted a Bengali interpreter. He stated at the end of the interview that he understood the questions.
53. The Judge also found at [26] that the appellant had in any event clearly admitted on numerous occasions during the interview to effectively having cheated during the test and therefore, that he has still deceived the authorities when obtaining the grant of the Tier 2 General Migrant leave on 16 November 2012. The Judge referred to Questions 90-103, 107, 112-114, 131, 138, 142-146.
54. Mr Singh referred to Questions 29-31 of the interview. There the appellant accepted that he did not work from December 2010 until June/July 2012, namely, one and a half years. He said that he was looking for a good restaurant. He worked for one or two hours now and then. He was asked what he did for one and a half years when he was in the UK. He said he was in his relative's house. He was not doing anything. He just ate and slept. He only worked at the Roy Whitney restaurant, namely his cousin's, one or two hours "to help him." (Questions 34-42) This was not permanent work.
55. Ms Singh submitted that the appellant left the Shadhana restaurant in December 2010 and had not worked there until 2012. This indicates that he did not work for that restaurant but for Whitney. The Judge's findings at [22(iv)] are accordingly sustainable.
Assessment
56. I have had regard to the interview record at appendix G which took place on 13 March 2015. It commenced at 19h43 until approximately 22h.14. The appellant stated at the outset that he wanted a Bengali interpreter as "I understand very little English." A Bengali interpreter was accordingly booked.
57. The appellant was asked whether he understood the interpreter, to which he replied "yes." He also stated that he does not want to eat or drink anything.
58. He signed the interview on 13 March 2015 at 22h14. He has also signed each of the 20 pages of the interview.
59. At the end of the interview, the appellant was asked whether he wished to add anything. He replied "what can I say?"
60. The appellant answered the questions at the interview. He was able to give substantial detail. He was able to concentrate. During the course of the interview he appeared to become annoyed. He stated that he has not eaten or slept and that is why. He was reminded that he had been asked if he wished to eat "now". He replied that he did not want to eat anything.
61. He was then given the opportunity to obtain a drink. He then left the interview room in order to obtain a hot drink (G9).
62. The Judge considered the evidence of the appellant, both oral and documentary as well as submissions.
63. He was not satisfied on the evidence that the appellant's account of having personally taken the test was a consistent and credible one. The Judge has set out his reasons for that finding at [22(i-vii)]. That included his inability to remember so many things about the English language test that he claimed to have sat personally.
64. The Judge accepted the record of the interview as accurate, even making allowances as requested by counsel, for his recent journey from Bangladesh.
65. The appellant made a "clear admission" of having worked for Raj Whitney Ltd, his cousin's restaurant, without the necessary permit or paperwork at a time when he was unemployed or was not working with permission anywhere else. He was thus not undertaking "supplementary" work as was subsequently claimed. He was therefore in breach of his Tier 2 conditions.
66. The appellant sought to cover up his having worked without the necessary permit or paperwork after leaving the Shadhana Tandoori Restaurant by asking the interpreter not to tell the interviewer about this work at his cousin's restaurant.
67. The appellant disingenuously sought to contend that his friend only assisted him in preparing for the English language test as opposed to during the test itself. That person was not called as a witness and the appellant could not even remember his name initially in the interview.
68. The judge also considered the appellant's request for an interpreter for the appeal hearing despite his claim to having personally taken and passed the test in August 2012 with record scores of 465/495 for listening; 180/200 for writing and 435/495 for reading and finally 200/200 for speaking.
69. In those circumstances, the Judge concluded that there was sufficient evidence that his certificate was fraudulently obtained leading to a cancellation of the test results. The Judge was thus satisfied that he had obtained his Tier 2 General Migrant leave to remain in November 2012 by deception.
70. In summary, the Judge has considered all the evidence including the appellant's evidence at the hearing. He has properly directed himself. In the event he made a positive finding that the appellant has admitted that he used a friend to help him pass the test. He has given sustainable reasons at [22] for rejecting the appellant's assertion of having personally taken the English language test on 21 August 2012. He has also given sustainable reasons for his conclusion that the appellant breached the conditions of his leave to remain.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any error on a point of law. It shall accordingly stand.
No anonymity direction is made.

Signed Date 25 January 2017
Deputy Upper Tribunal Judge C R Mailer