Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23313/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 December 2016
On 12 January 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

m S A
(anonymity order made)
Respondent

Representation:
For the Appellant: Mr S Walker, a Senior Home Office Presenting Officer
For the Respondent: Mr S Hosein, Counsel, instructed by Hanson Young Solicitors

DECISION AND REASONS

Anonymity

The First-tier Tribunal made an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original appellant, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal allowing the claimant's appeal against her refusal to vary leave and her decision to remove him on the basis of reliance on false documents and a fraudulently obtained TOEIC certificate dated 21st March 2012 which by the date of the refusal letter on 12th June 2015 had been withdrawn by ETS. The material passage in the letter of refusal is as follows:
"For the purposes of your application dated 27th April 2012, you submitted a TOEIC certificate from Educational Testing Service ('ETS') to the Home Office.
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 21st March 2012 at Synergy Business College of London 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.
In light of this the Secretary of State has deemed that refusal is appropriate under paragraph 322(2) and is not prepared to exercise discretion in your favour.
In this application, you have also once again submitted the same test certificate as evidence that you meet the requirements for the award of points for English Language. As above, the SSHD has already found this document to be non-genuine.
For the above reasons, I am also satisfied that you have used deception in this application.
This means that any future applications for entry clearance or leave to enter the UK you make will be refused under paragraph 320(7B) of the Immigration Rules (unless it would breach your rights under the Human Rights Act or the Refugee Convention) for the following period starting on the date on which you leave the UK following this refusal: [details given]."
2. The claimant relies on SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC) arguing that the burden of proof had not shifted to him because the evidence of Ms Collings and Mr Millington was inadequate to shift the evidential burden borne by the Secretary of State, alternatively, that the First-tier Judge was entitled to allow the appeal, because even if the burden had shifted to the claimant, she had given a satisfactory explanation to support her contention that she had taken the TOEIC test herself.
3. The Secretary of State appealed against the allowing of the decision on two grounds. The first, which is not pursued, relates to the judge's finding that the Secretary of State's investigation of bank evidence relied upon was inadequate. The second relates to paragraph 43 of the First-tier Tribunal decision, which is as follows:
"43. Neither Ms Collings' nor Mr Millington's evidence was tested by cross-examination in this appeal and as stated above; their evidence was not particular to the [claimant]. While I am prepared to accept that their evidence just discharges the respondent's burden of establishing that the [claimant] submitted a fraudulently obtained test score in respect of the 21st March 2012 test only; without more I am not prepared to accept that the burden is discharged in relation to the 19th September 2012 score, which may have been cancelled solely because the test was taken in a centre where other tests had been found to have been taken by a proxy.
44. It is therefore for the [claimant] to show that he has an innocent explanation. In considering whether or not he does, I have considered a number of factors including what he would have to gain from being dishonest; whether or not there are any other questions about his good character; and what other evidence there is of his English language ability, in particular evidence that predated the TOEIC test."
4. In support of the finding that the claimant had taken the test himself, the First-tier Tribunal relied on its own assessment of whether the claimant was the type of person to do so, and also, on alternative evidence of his English language abilities: the claimant had asserted, through Counsel, that he studied in Bangladesh in English before coming to the United Kingdom; in 2007, he passed an IELTS test at Level B1; and in 2016, he gave evidence in English to the First-tier Tribunal. The First-tier Tribunal concluded as follows:
"48. I find when considering the evidence in the round that the [claimant] through his oral evidence and documentary evidence he adduced has given a satisfactory explanation regarding the allegations of dishonesty made by the respondent against him. Having made that finding I need to consider whether or not the respondent has discharged the legal burden of establishing that the [claimant] obtained his TOEIC certificate by dishonest means."
5. Pausing there, that analysis is legally erroneous because the evidence relied upon does not have a nexus with the fraudulent event in March 2012. The First-tier Tribunal's assessment inverts the approach which SM and Qadir requires the Tribunal to take, which is that of considering first whether the legal burden is discharged by the respondent. and second, whether there is a satisfactory basis for the claimant's assertion that they did take the TOEIC test in person. The decision continues:
"49. I consider that at the time the [claimant] took his test there was no need for him to cheat. As set out above, he had already demonstrated that he met a higher standard of English in order to obtain entry clearance as a student. I consider that he would have been aware that to submit false information or documents was a serious matter given that he had made more than one immigration application by the time he submitted the application in question in this appeal. I take into account the fact that there was no other evidence to call the [claimant]'s character into question generally. I note that the [claimant] was enrolled as an advocate of the Bangladesh Bar Council on 17th January 2008. I would find it very surprising if there was not a good character requirement as a prerequisite for enrolment as an advocate.
50. I find that the respondent has not established on the balance of probabilities that the [claimant] obtained his TOEIC certificate by dishonest means. ?"
The appeal was allowed under the Rules.
6. It is difficult to see what satisfactory evidence was before the judge in relation to the disputed TOEIC test in March 2012, apart from the claimant's assertion that there were a lot of people there for the speaking test on that day, and his evidence that on other occasions he had demonstrated a knowledge of the English language.
7. Paragraphs 9 to 10 of her decision contain an incomplete summary of the evidence recorded in the First-tier Tribunal Judge's Record of Proceedings. At [9]-[10], the judge said this:
"9. The [claimant] was asked whether or not he had contacted ETS since receiving the respondent's decision to refuse his application in June 2015. The [claimant] stated that he had not. Ms Ahmed put it to him that the fact he had not contacted ETS suggested that he did not take the test himself. The [claimant] stated that if ETS had provided incorrect information then he would need to complain about it, but that it should be done by his lawyer. ?
10. The [claimant] stated that in March the classroom was full when he was taking the test. When he took his speaking test he stated that the speaking area was almost full. He described being tested by computer and when asked if he saw anyone cheating he replied 'I have no idea'. ?"
8. In the Record of Proceedings, the judge records cross-examination in the following terms:
"Presenting Officer - English test
- Since refusal 06/2015 - contacted ETS?
Answer - No.
Presenting Officer - Fact that didn't contact ETS suggests that you didn't take test.
Answer - I might complain if they gave wrong information.
Presenting Officer - Refusal says you did not take the test.
Answer - Not true, I took the test. If ETS says this, I need to complain about it.
Presenting Officer - Why didn't you?
Answer - Should be done by lawyer."
9. The documentary and witness evidence adduced by the claimant of his passing an IELTS test in 2007 and his ability to give evidence in English in 2016 is immaterial when considering whether he dishonestly relied upon a test in March 2012 taken fraudulently by a proxy test taker, or whether he was himself at the hearing centre in March 2012, taking the test in person.
10. I have had regard to the Upper Tribunal's guidance in SM and Qadir that:
"(i) The Secretary of State's generic evidence, combined with her evidence particular to these two appellants, sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty. ..."
The reasoning is amplified in the Tribunal's decision at [67]-[68]:
"67. We begin by asking ourselves whether the Secretary of State has discharged the evidential burden of proving that the appellants were, or either of them was, guilty of dishonesty in the respects alleged. Bearing in mind that, as noted above, all of the Secretary of State's evidence was adduced first, reflecting the burden of proof, it is appropriate to record that at the stage when the Secretary of State's case closed there was no submission on behalf of either appellant that the aforementioned evidential burden had not been discharged. ?
68. As our analysis and conclusions in the immediately preceding section make clear, we have substantial reservations about the strength and quality of the Secretary of State's evidence. Its shortcomings are manifest. On the other hand, while bearing in mind that the context is one of alleged deception, we must be mindful of the comparatively modest threshold which an evidential burden entails. This calls for an evaluative assessment on the part of the Tribunal. By an admittedly narrow margin we are satisfied that the Secretary of State has discharged this burden. The effect of this is that there is a burden, again an evidential one, on the appellants of raising an innocent explanation."
11. That has been reinforced by the guidance recently given by the Upper Tribunal in R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC - ETS - judicial review principles) [2016] UKUT 561 (IAC) at (vi) in the judicial headnote:
"(vi) The student's knowledge of an allegation by ETS that he has procured his TOEIC certificate by deception will normally suffice to convey the gist of the case against him, thereby rendering the Secretary of State's decision making process (in this respect) procedurally fair."
12. The question whether there is an innocent explanation supporting the claimant's assertion that he took the test personally is a question of fact for the fact-finding Tribunal, with which the Upper Tribunal can interfere only on the basis of the guidance given by Lord Justice Brooke at paragraph 90 subparagraphs 2 and 3 of R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982. The Upper Tribunal must be satisfied that the First-tier Tribunal's reasoning as to facts is perverse, Wednesbury unreasonable or incomprehensible and contrary to the evidence.
13. I find on examination of this decision that in relation to the 21 March 2012 test, there was in effect no evidence to rebut the fraud assertion by ETS, other than the claimant's uncorroborated assertion that he did take the test himself. ETS has satisfied itself that he did not and withdrawn the certificate in question.
14. I have regard to the claimant's failure in June 2015 to challenge ETS' withdrawal of the certificate. He did not challenge it when he received the refusal letter and still had not done so by the date of the hearing in the First-tier Tribunal in April 2016. He said quite frankly in his evidence that he might have complained if ETS had given wrong information.
15. In the light of that evidence and in the absence of any other evidence I do consider that the finding that a satisfactory explanation can be deduced from an entirely different test in 2007, the claimant's general good character and his oral evidence in 2016 is perverse, Wednesbury unreasonable and to me at least incomprehensible.
16. Accordingly, that there is a material error of law in the First-tier Tribunal's decision. I set it aside and substitute a decision dismissing the appeal.
Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I re-make the decision in the appeal by dismissing it.

Signed: Judith A J C Gleeson Date: 11 January 2017
Upper Tribunal Judge Gleeson