Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14160/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 October 2016
On 6 October 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

SECRETARY OF STATE
Appellant
and

NIKHILKUMAR ASHOKBHAI PATEL
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Bramble, Home Office Presenting Officer
For the Respondent: Mr Lourdes, Counsel.

DETERMINATION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of India born on 17 March 1980, as the appellant herein. On 13 March 2015 the Secretary of State refused to grant the appellant further leave to remain. The decision was based on the Secretary of State's contention that the appellant did not meet the suitability requirements under Appendix FM-LTR.2.2.(a) in the light of confirmation by Educational Testing Services (ETS) that the appellant's test scores in an English language test undertaken on 16 May 2012 had been obtained through deception on the basis that a proxy test taker had been used. The scores were accordingly cancelled. The finding that the appellant had practised deception coloured the respondent's decision throughout including the assessment of the appellant's case outside the rules on the basis of exceptional circumstances.

2. The appellant appealed and his appeal came before a First-tier Judge on 15 February 2016 when the appellant was represented as he is before me by Mr Lourdes but there was no appearance on behalf of the Secretary of State.

3. The judge heard oral evidence from the appellant and his wife and it was submitted that the parties satisfied the relevant requirements of the immigration rules. The appellant's wife was pregnant.

4. The judge was referred to Shahbaz Ali v The Secretary of State for the Home Department [2014] EWHC 3967 (Admin) and in particular what was set out at paragraph 21 of the judgement on the question of the respondent's guidance. The judge noted that Immigration officers had a discretion in the use of enforcement powers and where a person was said to have obtained leave by deception the guidance provided at paragraph 50.12:

"? The evidence of deception should be clear and unambiguous in order to initiate action under section 10. Where possible, original documentary evidence, admissions under caution or statements from two or more witnesses should be obtained which substantiate that an offence has been committed before authority is given to initiate action under section 10 of the 1999 Act. The deception must be material - in other words, had the officer known the truth, the leave would not have been given. The evidence must always prove to a high degree of probability that deception had been used to gain the leave, whether or not an admission of deception is made. The onus - as always in these situations - is on the officer making the assertion to prove his case"

5. The judge noted that the appellant's test score had previously been accepted by the respondent and he had passed a subsequent test on 26 June 2014. She considered that the issue was important as it would potentially jeopardise future applications. There would be a "draconian" effect on his family life. The judge noted that there was a letter from the college to confirm that the appellant had undertaken the test on 16 May 2012 although there was no explanation as to why the college should have issued such a letter.

6. However the judge concluded that there was no Home Office Presenting Officer present at the hearing and there was no evidence before her other than that which had been served on the appellant in the bundle prepared for the appeal. She found the Secretary of State had not discharged the evidential burden on her and that the allegation of deception had not been made out.

7. Accordingly the judge allowed the appeal.

8. The Secretary of State applied for permission to appeal and permission was granted by the First-tier Tribunal on 22 August 2016 on the basis that it was the Secretary of State's contention that the relevant ETS evidence had been served on the First-tier Tribunal by fax.

9. At the hearing before me, however, Mr Bramble very properly conceded that he could not provide a copy of the fax that had allegedly been sent according to the CID notes. The grounds had been founded on a claimed procedural error. If there was nothing on the file he could not take the point further.

10. I gave Mr Bramble the opportunity to examine the file without success. In the premises he accepted that the First-tier Judge was entitled to conclude that the Secretary of State was unable to prove her case. The grounds were not made out and the appeal should accordingly stand as allowed.

11. The approach of Mr Bramble was characteristically fair and correct. I did not need to trouble counsel in the premises.

12. The First-tier Judge was properly entitled to find that deception had not been established on the material before her. Her decision to allow the appeal was accordingly open to her.

Decision

The decision of the First-tier Judge was not materially flawed in law.

The appeal of the Secretary of State is dismissed.

The decision of the First-tier Judge to allow the appeal stands.

Anonymity Direction.

The First-tier Judge made no Anonymity Order and I make none.

Fee Award

The judge made a fee award in the full sum which stands.

Signed Date: 5 October 2016

G Warr, Judge of the Upper Tribunal