Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19620/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 December 2016
On 19 January 2017
Prepared 22 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

ms kamaljit kaur
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Ms Z Ahmad, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant, a national of India, date of birth 2 May 1984 appealed against the Respondent's decision dated 8 October 2014 to reject an application for leave to remain as a Tier 3 (General) Student on the basis that false representations had been made in her application. In a nutshell, the complaint was that the Appellant had used a proxy test taker and therefore there had been no proper result in relation to the speaking part of the TOEIC certificate testing. The matter was appealed and the appeal documents show that the request was made for the case to be determined on the papers.
2. Those grounds of appeal generally asserted that there had been no false test taken and it was said, as is evident from the file and before the Judge, that there was a blanket denial of using such a proxy test taker and that it had been completed by the Appellant herself. That statement is dated 14 December 2015.
3. By the time the judge came to look at this matter the Upper Tribunal's decision in SM and Qadir v SSHD (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC). The cases of I Qadir and Shehzad [2016] have not undermined the Upper Tribunal's decision It is apparent that this experienced judge would have been well aware of the evidence that the Respondent was relying upon particularly as to the generic evidence showing how proxy test taking was discernible and demonstrable.
4. It is true to say that the decision and reasons of First-tier Tribunal Widdup dated March 2016, is somewhat delphic but nevertheless it is clear that he was satisfied and found on the evidence that there had been sufficient evidence adduced to show that the certificate had been obtained dishonestly. It is clear therefore, in the light of Qadir, that the next step was for the Appellant to have produced evidence to rebut the assessment of the evidence doubting his dishonesty.
5. The bare assertion that a person took the test is not sufficient to amount to cogent evidence to displace the inference that there had been a proxy test taking by another person.
6. In the circumstances it is clear that there was no material before the judge to show that the Appellant had got even close to raising evidence to give rise to doubts about the Respondent's case.
7. In these circumstances I therefore conclude that the judge had sufficient material on which to form the view that he did and therefore made no error of law in terms of evaluating the evidence on the file. I accept and agree with the view of First-tier Tribunal Judge Brunnen dated 18 November 2006 that there is the appearance of an absence of an evidential basis for the judge's decision. However, on a closer scrutiny of the appeal file which First-tier Tribunal Judge Brunnen would not have had the time and documents to do so shows that in fact there was sufficient evidence to reach the view that the judge was correct. There is nothing lodged in support of the appeal which goes to show anything further about the matter and nothing further about the evidence relied on to answer the Respondent's case.
8. In the circumstances, looking carefully at the grounds, they appear to be no more than a general assertion of legal matters but do not highlight any evidence that was not or should have been considered by the judge.
9. Accordingly I conclude that there was no arguable error of law made by the judge.

NOTICE OF DECISION
The appeal is dismissed.
No anonymity direction is made.

Signed Date 17 January 2017
Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date 17 January 2017
Deputy Upper Tribunal Judge Davey