Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/22233/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 13 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SHAHID SAEED
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Z Nasim of Counsel instructed by Lee Valley Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Pakistan born on 7 February 1978 as the appellant herein.

2. The appellant came to this country as a student in 2004 and was granted further leave to remain on application as a student until 7 April 2013.

3. On 11 December 2012 the appellant applied for leave to remain as a Tier 1 (Entrepreneur) Migrant under the points-based system. It was the refusal of that application on 5 June 2015 that gave rise to the appeal proceedings herein.

4. There were two aspects to the Secretary of State’s decision. On 11 December 2012 the appellant had submitted a TOEIC certificate from the Educational Testing Service (ETS) and the respondent stated as follows:

“ETS has a record of your speaking test. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker. Your scores from the test taken on 18 September 2012 and 21 September 2012 have now been cancelled by ETS.

On the basis of the information provided to her by ETS, the SSHD is satisfied that there is substantial evidence to conclude that your certificate was fraudulently obtained.”

5. The Secretary of State also took a point in relation to a bank statement provided by the appellant as follows:

“You have provided a letter and bank statement from BRAC Bank Ltd dated 05 December 2012, relating to account number 15073020113448024 held in the name of Ziaur Rahman, as evidence that you meet the requirements to be awarded points for access to funds as required.

We have sought to verify the document(s) detailed above, using standard procedures. The letter and bank statement for account number 150730213448024 from BRAC Bank Ltd dated 05 December 2012 were found not to be genuine.”

6. The appellant was accordingly awarded no points in relation to his finances or his knowledge of the English language and his application was moreover refused under the general grounds for refusal-paragraph 322(1A) of the Rules.

7. The appellant appealed and his appeal came before a First-tier Judge on 1 February 2016. The appellant was represented by different Counsel and the respondent was also represented.

8. The judge listed the documents before her as follows:

“(i) The Respondent’s bundle dated 3rd December 2015.
(ii) The Appellant’s bundle sent under cover of a letter of 26th January 2016 comprising a copy of a letter dated 30th November 2015 and the Appellant’s signed witness statement.

(iii) Witness statement of Rebecca Collings.

(iv) A copy of an official score report for ETS.

(v) Copies of emails passing between the Fraud Team and BRAC Bank Limited.

(vi) ETS SELT source data referring to a test on 18th September 2012.”

9. Before the hearing commenced it appears that there was an application by the Secretary of State to adjourn the hearing. This was resisted by Counsel for the appellant pointing out that there had been a very lengthy delay since the decision appealed from. The judge records that he declined to adjourn matters and that an adjournment would only cause more delay and stress to the appellant.

10. The judge set out his findings in the following extract from his determination as follows:

“15. I found the Appellant to be a reliable witness. He was questioned by the Home Office Presenting Officer and gave a plausible account.

16. He explained that he had done some Pearson exams to learn English and then had changed to the course TOEIC. He explained that the fourth exam that he had to do with Pearson was at a date too far ahead and so he sat the TOEIC exam at Finchley.

17. He could not recall the name of the college but that was not surprising as the exam had been some considerable time previously. I noted that this appeal had been ongoing for some time.

18. The Appellant gave an account of how he got to the examination centre by taking the train to Holloway and the bus to Finchley. He could remember that the exam took place over two days for three to four hours each day. The first day was writing and reading and the second day was listening and speaking.

19. He had been to the centre to get the results.

20. To his credit he had tried to contact the centre after the Home Office decision of June 2015 but the college has closed. The Respondent did not contradict that and the Respondent was alleging fraud and had the burden of proof to satisfy.
21. I had a document called “ETS SELT source data”. This showed the Appellant’s name and his certificate number. The test centre was described as the New College of Finance and the test date was described as 18th September 2012. The Appellant had scored 190 on each of the tests.

22. Written in manuscript on that document were the words “invalid – match”. There was no indication as to who had written those words or when they had been written and I did not think that document on its own proved any fraud.

23. There was an official score report with the scores of 190 on them and the Appellant’s photograph.

24. I noted that the Appellant spoke good English. I further noted that since 2004 the Respondent had repeatedly granted leave to remain in the United Kingdom to the Appellant to study. I assumed that the Respondent was satisfied that the Appellant had a good knowledge of English. There was nothing to suggest that he was not studying in the English language in the UK. He demonstrated a good use of English language before me.

25. I had a witness statement of Rebecca Collings dated 23rd June 2014.

26. That statement was to be read in conjunction with the witness statement of Peter Millington which I did not have.

27. The problem with that statement is that it did not specifically deal with Mr Saeed’s test at the specific college that he said he attended. It explained that there had been a number of cases where abuse had been identified. Miss Collings did not however say that the test certificate produced by Mr Saeed was obtained by fraud.

28. The reasons for refusal letter referred to ETS having a record of Mr Saeed’s speaking test. Voice verification software had been used and it was stated that there was significant evidence to conclude that the certificate was fraudulently obtained by the use of the proxy tester. However, I did not have that evidence.

29. The Respondent was making an assertion that Mr Saeed had taken the test by the use of a proxy and it was therefore for the Respondent to prove that allegation.

30. Given what I saw of Mr Saeed’s knowledge of English and given the time that he had spent in the United Kingdom I did not see why he would need someone to take his English test for him.

31. Mr Jafar pointed out that the test was over two years ago and I would not expect Mr Saeed to have a detailed recollection of it.

32. Mr Jafar was right in saying that there was not cogent evidence to support the Home Office allegation.

33. I noted what was said in the case of R (on the application of Gazi) v SSHD (ETS – judicial review) IJR [2015] UKUT 327 (IAC).

34. President McCloskey described the Home Office verification process as “lean in detail” and that there was “a discernable element of bombast in these claims” by the Home Office witness and that there was “an unmistakable self-serving element” to his evidence.

35. In short, I found the Home Office evidence to be rather general and not specific to Mr Saeed and I did not think that the Home Office had discharged the burden of proof in this case. There may well have been grounds for the Home Office to be suspicious in the light of the evidence that they had but that did not translate into proof that supported their allegations.

36. There was also an allegation that the bank documents submitted by Mr Saeed were forged.

37. In this respect I had what purported to be copies of three emails. Mr Booth from the Fraud Team had sent an email to somebody at BRAC Bank I assume. The email simply showed “redacted” and the subject was 16340679. That email referred to three questions. Firstly a scanned copy of the document was sent although the document was not specified. Secondly confirmation of Mr Rahman’s account was sought and thirdly the account balance on 5th December 2012 and the current balance was requested. On 22nd February an email appeared to have been received from BRAC Bank saying that “following attached certificates and statements not issued by our branches”. That did not deal with the three queries that were raised and I did not know what certificate was being referred to.

38. I did note that the partnership between Mr Saeed and his former partner had broken up and he no longer knew where his former business partner was.

39. The enquiry was being made a considerable time after the documentation had been submitted and I did not think that the response by the bank was conclusive of forged documentation.

40. There had undoubtedly been delay in this case and I could not understand why further and proper enquiries had not been made in a timely manner.

41. There was not enough evidence before me to enable me to say that Mr Saeed had produced forged documentation.

42. My understanding was that Mr Saeed had been in the country for twelve years and was now seeking leave to remain on that basis.”

11. The judge allowed the appeal to the extent that he did not support the Home Office findings regarding fraud and referred the matter back to the Secretary of State to enable her to make a fresh decision in the light of her findings.

12. The Secretary of State applied for permission to appeal on the basis that the First-tier Judge’s reasoning was entirely inadequate. Rebecca Collings had explained at paragraph 28 of her witness statement why tests were categorised as “invalid”. Due consideration should have been given to the specific evidence which identified the appellant as an individual who had exorcised deception together with the information provided in the statement of Rebecca Collings. Referring to the judge’s observation that he did not have the statement of Peter Millington it was submitted “that it was incumbent upon the Tribunal to seek a copy of Peter Millington’s statement.”

13. It was argued in paragraph 5 of the grounds that had the Tribunal equipped itself with the two statements

“It would have found that read together the two statements and the spreadsheet containing specific information of the appellant’s identification provided both a clear explanation of the careful method used to detect fraud, and documentary evidence that the appellant’s test result had been identified as invalid by use of this method.”

14. It was argued that the appellant had been found to be a reliable witness but he was unable to recall the name of the college where he had taken the English test although he was able to give an account of how he got to the examination centre. The judge had taken into account the appellant’s English language ability but there might be reasons why a person who was able to speak English to the required level would nonetheless cause or permit a proxy candidate to undertake an ETS test on their behalf or otherwise to cheat. The judge had erred by failing to give adequate reasons for holding that a person who clearly spoke English would therefore have no reason to secure a test certificate by deception.

15. Reference had been made by the judge to the case of Gazi v Secretary of State (IJR) [2015] UKUT 327 but in that case the Tribunal had found that the generic evidence was sufficient.

16. In relation to the bank documents it was clear that the e-mail from the bank was confirmation that it had not issued the documents that were attached to the fraud team’s enquiry.

17. Permission to appeal was granted on 10 February 2017 by the First-tier Tribunal. The judge noted that the decision of the First-tier Judge predated the guidance in Shehzad [2016] EWCA Civ 615 and MA (ETS-TOEIC testing) [2016] UKUT 450 which might explain the failure to deal with the issue of a shifting burden of proof. He further commented that Article 8 had not been dealt with.

18. The judge had ignored the findings in Gazi. There was sufficient evidence to establish a case to answer. The judge had misdirected himself in commenting in paragraph 27 that the problem with the statement of Rebecca Collings was that it did not specifically deal with the appellant’s test at the specific college he said he had attended. Mr Avery submitted that that was not the point-it was the process that was important.

19. The judge had further minimised the problems in the appellant’s evidence about deception-for example in paragraph 18 of the decision the judge recorded that the appellant had remembered how he had got to the examination centre but could not remember the name of the examination college. The judge had misdirected himself in relying on the appellant’s knowledge of English – as was pointed out at paragraph 57 of MA there might be many reasons for a person using a proxy despite having a knowledge of English.

20. In relation to the bank statements the judge had referred in paragraph 37 to assuming an email had been sent to somebody but there was no reason for him to assume anything. There was no reason to refer to purported copies and he had misdirected himself in referring to the bank’s response not being conclusive of forged documentation. The case of Adedoyin (formerly AA (Nigeria) v Secretary of State) [2010] EWCA Civ 773 made it clear that the issue was whether the document was false-there was a distinction between false documents and false representations. It would not matter whether his former business partner was aware of the fraud.

21. Mr Saeed in his submissions referred to the delay that there had been and pointed out that the only documents that had been relied on had been in the respondent’s bundle and it was only on the day of the hearing that further documentary evidence had been served on the Tribunal and the appellant. The respondent had applied for an adjournment. The documents submitted late had not formed part of the respondent’s bundle at all previously. The burden was on the respondent to prove deception and the judicial review cases would not be of application in a statutory appeal. Reference was made to Shen (Paper appeal; proving dishonesty) [2014] UKUT 00236 (IAC), chaired by Mr Justice Green. Reference was made to paragraph 25 of Shen.

22. In relation to the bank statements it was to be noted that the e-mail came in on the day of the hearing and it should have been served as part of the respondent’s bundle. It was not clear which documents had been submitted and it was a very generalised e-mail. It was not known what certificates or statements had been sent for analysis. The judge had properly dealt with the matter at paragraph 37 of his determination. The judge had not misdirected himself in paragraph 39 in finding it not established that there had been forged documentation. He had been entitled to find that the evidence had been insufficient to discharge the burden of proof. The appellant had no longer been in contact with his partner because of the delay.

23. In ETS cases it was clearly established that each case was fact sensitive - Counsel referred to paragraph 45 of MA - and the judge in this case had incomplete material and the word “invalid” was written in manuscript on the “ETS SELT source data”. The judge had clearly referred to the witness statement that had been put in from Rebecca Collings. The credibility findings had not been challenged by the Secretary of State. The judge had made a clear finding in paragraph 30 and had not erred in law in doing so. The Secretary of State could have provided better evidence. The judge had referred to a redaction in the evidence and it was to be noted that there was power under Section 108 of the Nationality, Immigration and Asylum Act 2002 to adduce evidence where disclosure would not be in the public interest.

24. In the light of his findings the judge had referred the appeal back to the Secretary of State.

25. Mr Avery submitted that the judge had gone wrong in seeking specific evidence and had misunderstood the basis of the Secretary of State’s case. The generic evidence had been before the judge and if he had needed a copy of Mr Millington’s statement he had only to ask. Mr Avery submitted that the bank e-mails were quite clear in that the statements had not been issued by the bank.

26. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the judge’s determination if it was materially flawed in law.

27. Cases of this type will largely depend upon the facts – see Majumder and Kadir [2016] EWCA Civ 1167 where Beatson LJ stated at paragraph 27 as follows:

“As to the other cases pending before this court, my starting point is to agree with the UT at [102] to [103] that every ETS/TOEIC case will be fact sensitive, with the outcome determined on the basis of the evidence adduced by the parties. But in the statutory appeals, that evidence has already been adduced; and, as I have stated, Mr Kovats accepted that, save in a truly exceptional case, it would not be possible for the Secretary of State to adduce additional evidence at this stage.”

28. The Secretary of State was of course in considerable difficulty at the hearing before the First-tier Judge in this case. Notwithstanding the inordinate delay since the decision appealed from a proper evidence bundle had not been lodged to make good the allegations. In the light of this difficulty the Presenting Officer applied for the adjournment which was resisted quite properly by the appellant and the judge refused the application. This aspect of the decision has not been the subject of complaint. Indeed it appears to be a perfectly proper exercise of discretion. It is said that the judge should have called for the missing evidence. However in the circumstances of this appeal such a submission appears somewhat bold. This was not a case where the Secretary of State had lodged the appropriate material in a bundle in advance of the hearing in accordance with the usual directions but sought to do so at the hearing. The appellant had no notice of the material before that date. It was open to the judge having rejected the application for the adjournment to deal with the case on the material that had been placed before him.

29. Having seen that one statement was to be read with the other missing statement from Mr Millington which had not been provided the judge did not err in law or misdirect himself in failing to make further enquiries of the missing material. This was a case where the Secretary of State bore the initial evidential burden. This is discussed in Shehzad v Chowdhury [2016] EWCA Civ 615 at paragraph 3 of the judgment of Beatson LJ:

“It is common ground that for a decision to be made under paragraph 322(1A) there must be material justifying a conclusion that the individual under consideration has lied or submitted a false document. It is also common ground that the Secretary of State bears the initial burden of furnishing proof of deception, and that this burden is an ‘evidential burden’. That means that, if the Secretary of State provides prima facie evidence of deception, the burden ‘shifts’ onto the individual to provide a plausible innocent explanation, and that if the individual does so the burden ‘shifts back’ to the Secretary of State...”

30. The evidence of Miss Collings and Mr Millington appear to feature in the generic evidence adduced in the appeals in the cases considered by the Court of Appeal and at paragraph 22 Beatson LJ says

“As I have stated, the question in these appeals only concerns the initial stage and whether, with the evidence of Mr Millington and Miss Collings, the evidential burden on the Secretary of State is satisfied. If it is, it is then incumbent on the individual whose leave has been curtailed to provide evidence in response raising an innocent explanation”.

31. In this case all the judge had was one of the witness statements.

32. In my view the judge went carefully through the material that the Secretary of State had seen fit to adduce at the eleventh hour before him and did not misdirect himself in considering that material.

33. The judge did not simply as he might have done dismissed the appeal because insufficient evidence of deception had been adduced - in other words that the evidential burden had not been discharged - but considered the totality of the material and the evidence given by the appellant to meet the respondent’s case. In considering the appellant’s evidence the judge noted the passage of time. The complaint that while the appellant remembered the journey he could not remember the name of the college is simply an expression of disagreement with the facts as found. The judge noted what was written in manuscript on a document before him and was not satisfied with that material. There is no indication that the judge overlooked any of the material. Mr Avery submits that the judge erred in failing to appreciate that the documentary evidence was evidence of a process. However quite apart from the fact that the evidence of the process had not been properly put before the judge I am not satisfied that the judge erred as claimed. It was open to the judge on the basis of the incomplete material to find that evidence of fraud had not been adduced.

34. Further I am not satisfied that the judge’s reference to the appellant’s command of English is evidence of a misdirection. Of course there may be a number of reasons why an appellant might not wish to take the test himself but it was open to the judge to refer to the fact that the appellant had spent some years in the United Kingdom as a student - he has been here since 2004 - and in the particular circumstances of this case I do not find the judge misdirected himself in taking this into account. It was open to the judge to accept the appellant’s evidence and I do not accept the submissions made by Mr Avery that the judge was casting around to find material to support the appellant’s case and not giving proper weight to the assertions of the Secretary of State.

35. In relation to the bank documents again the material was adduced late in the day and did not form part of the respondent’s bundle. Counsel went through this material and submitted that it was not clear what statements had been submitted and what statements the bank had found that they had not issued. It was open to the judge to find as he did in paragraph 37 and the fact that the three questions that had been raised had not been answered. I am not satisfied that the judge in paragraph 39 erred in finding that the response by the bank was not conclusive of forged documentation. What he stated has to be seen in the context of delay and a failure to make proper enquiries in a timely manner. The reference to the appellant’s former partner has to be seen in the context of delay and the difficulty the appellant would have in meeting the allegations made against him. It is clear that the judge was not satisfied that the evidence of forged documentation had been made out and I am not satisfied that the judge misdirected himself as claimed by Mr Avery applying AA (Nigeria).

36. There was no complaint by the respondent in the grounds or in submissions that the judge had not dealt with Article 8. This was no doubt because the judge had referred matters back to the Secretary of State to reconsider in the light of his findings on the issue of fraud and deception. Again there was no complaint about the way in which the judge disposed of the appeal – presumably the judge was following what was said in Greenwood (No.2) (para 398 considered) [2015] UKUT 00629 ((IAC). As I have said, these cases are fact sensitive. The respondent’s case had been poorly presented before the First-tier Judge. The appellant made a good impression on the judge and his decision is satisfactorily reasoned. It was open to the judge to conclude as he did.

37. The decision of the First-tier Judge is not flawed by a material error of law.

38. In the premises the judge’s decision to refer the matter back to the Secretary of State to enable her to make a fresh decision in the light of his findings stands. The appeal of the Secretary of State is dismissed.

Anonymity Direction

The First-tier Judge made no anonymity order and I make none.

TO THE RESPONDENT
FEE AWARD

The First-tier Judge made a fee award having allowed the appeal. The fee award made by the judge stands.

Signed Date: 11 April 2017

G Warr, Judge of the Upper Tribunal