Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22456/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 18 January 2017
On: 2 February 2017

Before

Deputy Upper Tribunal Judge Mailer

Between

Mr Chaudhary Muhammad Kashif Siddique
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr J Plowright, counsel (instructed by Lea Valley Solicitors)
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Pakistan, born on 15 December 1982. He appeals with permission against the decision of First-tier Tribunal Judge NMK Lawrence, promulgated on 12 July 2016, dismissing his appeal.
2. The appellant made an application on 13 July 2013 for leave to remain in the UK as a Tier 4 (General) Student Migrant.
3. The application was refused on 19 May 2014. It was alleged that the appellant had employed deception to secure leave by obtaining a TOIEC test certificate, the test scores of which were cancelled by ETS as the test was allegedly taken by a proxy.
4. The appellant did not attend the hearing before the First-tier Tribunal on 17 June 2016. The solicitors had sought an adjournment. However, counsel (not Mr Plowright) attended the hearing and informed the Judge that the appellant was unwell but that the proceedings could continue by way of submissions only.
5. Oral submissions followed from both parties. Judge Lawrence took into account evidence contained in the respective bundles as well as documents submitted by the appellant at the hearing.
6. The Judge stated that the appellant bears the legal burden of proof "from start to finish" and the standard is the balance of probabilities.
7. He noted that as the respondent alleged that the appellant's TOEIC certificate is not genuine the respondent bore the evidential, as opposed to the burden legal and needed to provide evidence of sufficient strength and quality, '?.and she would need to subject it to a 'critical', 'anxious' and 'heightened' scrutiny [8].
8. Once discharged, the evidential burden shifted to the appellant who has to rebut it on the balance of probability.
9. Judge Lawrence had regard to the skeleton argument presented. Reference was made to various decisions including Qadir. He noted that the appellant had made an asylum claim. That was withdrawn. The only decision before him was that of the respondent dated 19 May 2014.
10. He had regard to a report from Professor French, a speech and linguistics specialist. He had considered the methodology carried out by ETS in identifying whether an appellant took the test or someone else. He noted that the two witness statements from Rebecca Collings and Peter Millington provided generic evidence rather than specific to a particular appellant.
11. Professor French was also provided with a report from Dr Harrison, a forensic consultant. His methodology had been commended by Professor French.
12. The Judge found that Professor French's conclusions were cogent. He had considered Dr Harrison's report as well as all the material usually relied on by the respondent. He was able to balance the information presented in favour of the appellant as well as that presented on behalf of the respondent. He was able to rely on his report.
13. Judge Lawrence noted that the respondent alleged that the appellant did not himself take the TOIEC test. Whilst the witness statements from Collings and Middleton in themselves may not be authoritative, Professor French conducted an analysis of the methodology used by ETS and concluded that the errors in the system used by ETS are small. In the light of these, he found at [14] that the respondent had discharged the burden of proof to the requisite 'high standard'.
14. At [15] Judge Lawrence stated that the appellant's case had been put on the basis of a challenge to the methodology relied on by ETS. The appellant had not provided any positive evidence to undermine the evidence relied on by the respondent. The nature of that positive evidence is a matter for him to decide.
15. Having considered the evidence in the round, he found that the respondent had discharged the evidential burden of proof to the higher standard. The appellant had not taken any steps to rebut it in any positive way [16].
16. Nor had the appellant put forward any evidence amounting to "compelling circumstances".
17. The appellant's application was refused under paragraph 322(1)(A) of the Immigration Rules.
18. On 8 December 2016, Upper Tribunal Judge Coker granted the appellant permission to appeal on the basis that it was arguable that the First-tier Tribunal considered the appellant to have relied upon an ETS obtained language certificate whereas his CAS indicated that he obtained his language certificate through City and Guilds. That did not appear to have been considered by the First-tier Tribunal despite having been referred to in the skeleton argument.
The appeal
19. Mr Plowright referred to a letter from the appellant's solicitors dated 13 February 2014, in which it was noted that the appellant had already provided an additional language test from City and Guilds (ESOL) along with his ETS TOIEC at the date of the application. The CAS letter also referred to the City and Guilds and it was contended in that letter that his applications "could be considered within the standard decision time."
20. He referred to the CAS statement at page 15 of the bundle before the First-tier Tribunal. That statement, dated 3 July 2013, noted that the appellant had been assessed by the CEFR Level C1 on the basis of his City and Guilds certificate in ESOL International. It was the certificate relied on by the college. The First-tier Judge however did not refer to that certificate at all in the determination. He only referred to the TOIEC certificate.
21. The appellant had contended in his witness statement before the Tribunal that as he had already done his City and Guilds test, he did not need to obtain a fake certificate from ETS. He contends that he never relied upon an ETS certificate to obtain leave to remain in the UK.
22. The conclusion by the Judge that he had not presented any positive evidence was wrong.
23. Nor did the Judge make a proper assessment of the "look up tool." The appellant's name was spelled 'Chaudhar'. He is also stated to be a Bangladeshi national, although his date of birth is correct. This had to be properly looked at and assessed. Accordingly, the lack of any analysis meant that the respondent had not succeeded in showing that she had "passed the evidential level required."
24. On behalf of the respondent, Mr Clarke submitted that the grounds were without merit. Permission to appeal was granted on the basis that the Judge did not consider that his CAS indicated he obtained the certificate through City and Guilds. The complaint that the Judge considered the TOEIC certificate is misplaced. The fact remains that the TOEIC certificate was provided by the appellant's solicitors along with his ETS TOEIC certificate at the date of application.
25. He submitted that s.322(1)(A) is mandatory. That provides that where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge) or material facts have not been disclosed, in relation to the application an application for leave to remain is to be refused.
26. He submitted that no positive evidence had been provided by the appellant, who elected not to attend the hearing. There was a single sentence in the witness statement that he did not need to supply fake certificates because he had already done the City and Guilds test. The fact that he stated that he did not rely upon the TOEIC from ETS and that he had already completed a City and Guilds test was not to the point. The appellant did not make a positive assertion that he was present at the test which he attended. The witness statement relied on was in fact over two years old.
27. The appellant did not attend the hearing to be cross examined. He has in effect sought to rely on a new point which was not raised at this hearing.
28. In reply, Mr Plowright submitted that in the circumstances it was unnecessary for the appellant to put up a positive case if the respondent's evidence was insufficient.
Assessment
29. The Tribunal in SM and Qadir (ETS - Evidence - Burden of Proof), [2016] UKUT 229 concluded at [68] that while bearing in mind that the context is one of alleged deception, they must be mindful of the comparatively modest thresholds which the evidential burden entails. This calls for an evaluative assessment on the part of the Tribunal. They must be satisfied that the secretary of state had discharged this burden. The effect of that is that there was a burden, again an evidential one, on the appellant of raising an innocent explanation. The factors in relation to the ultimate legal burden are set out at [69].
30. In the grounds for permission to appeal to the Upper Tribunal it was contended that the Judge erred in considering the facts of the case. The appellant did not submit the TOEIC certificate to the sponsor and was not required to do so in order to obtain the CAS. Instead, in order to obtain the CAS, he submitted an English language test awarded by City and Guilds. That was mentioned in the CAS and the statement of the CAS. It is contended that he never relied upon the TOEIC certificate to obtain that CAS or any previous leave to remain.
31. However, it is accepted that the appellant did indeed provide an ETS/TOEIC certificate at the date of his application as well as a City and Guilds certificate. Accordingly, that document had been submitted in relation to the application. The document need not be material to the application and need not even be to the appellant's knowledge.
32. It is contended by Mr Plowright that the ETS relied on did not mention the correct details of the appellant. His nationality was given as Bangladeshi whereas he is a national of Pakistan. Accordingly, it cannot be ascertained whether the ETS correspondence was in respect of the appellant or some other person with the same name and date of birth.
33. I note from the ETS report that on the first page the appellant's name is spelled 'Chauhar Siddique'. His nationality is said to be Bangladeshi. The date of birth is stated to be 15 December 1982. At Annex A to that document, which sets out 'Evidence from ETS in respect of S1501480', the name is spelled 'Chaudhary'. The date of birth in Annex A is also stated to be 15 December 1982. Moreover, the test centre is stated to be Queensway College which the appellant has not challenged.
34. I do not find that the Judge dismissed the appeal simply on the basis of the generic evidence provided but the details were set out in the ETS SELT Source Data printout before the Tribunal. This set out the relevant certificate number and the date and place where the test was administered.
35. The burden is on the respondent on the balance of probabilities and not beyond any reasonable doubt. Although wrongly stating that he is Bangladeshi, his name, date of birth and the test centre as set out in the document have not been challenged. In the circumstances the possibility as submitted by Mr Plowright that there may be two persons with the same names and dates of birth, who took the same test on the same day at the same centre is a coincidence too far and is not plausible.
36. It has also been submitted that the appellant did produce evidence amounting to a positive case. In his witness statement dated 10 November 2014 he stated that his CAS letter mentioned that he relied on the City and Guilds test to obtain the offer of studies. He had however not relied on the TOEIC test but the City and Guilds one. He contended that as he had done the City and Guilds test he did not need to obtain a fake certificate from ETS.
37. Apart from that assertion, however, he has failed to give any evidence that he sat the test personally on the date and at the venue concerned. He did not present himself for cross examination on these issues.
38. The Judge stated that he considered the evidence in the round, and found that the respondent had discharged the burden [16]. There was sufficient sustainable evidence before the Tribunal justifying that finding.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any material error on a point of law, and shall stand.
No anonymity direction is made.

Signed Date 31 January 2017
Deputy Upper Tribunal Judge C R Mailer