Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24746/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th March, 2017 and
Signed and sent to
Promulgation on 16th March 2017
On 16th March, 2017

Before

Upper Tribunal Judge Chalkley

Between

Mr saydur rahman
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Bangladesh born on 7th September, 1988, who first entered the United Kingdom on 10th January, 2010, with leave to enter as a Tier 4 (General) Migrant Student until 16th April, 2014.
2. The appellant was subsequently granted an extension of leave until 14th September, 2014, and on 18th September that year he made a further application for leave in the same capacity, but this was refused by the respondent.
3. The appellant sought to challenge the respondent’s decision by way of appeal to the First-tier Tribunal and his appeal was heard by Judge A W Khan without a hearing on 15th June, 2016.
4. The judge noted that the respondent’s decision included the decision to remove the appellant by way of directions under Section 47 of the Immigration and Nationality Act 2006, in that, prior to submitting his present application, on 13th April, 2012, the appellant had applied for leave to remain as a Tier 4 (General) Migrant Student and had submitted a TOEIC certificate from Educational Testing Service to the Home Office and his sponsor, in order for them to provide the appellant with a Confirmation of Acceptance of Studies. However, ETS had subsequently cancelled the appellant’s certificate having satisfied itself that his certificate was fraudulently obtained.
5. The judge took into account a witness statement from Rebecca Collings of the Home Office and of her colleague Mr Peter Millington. He found himself satisfied the Secretary of State’s evidence was sufficient to prove that the appellant’s TOEIC certificate had been procured dishonestly. The judge dismissed the appellant’s application. He went on to dismiss the appellant’s human rights claim, since there was no evidence provided to him that the appellant had any family life in the United Kingdom and no evidence that he had established any private life. He concluded that the appellant could not meet the requirements of the Immigration Rules in respect of his Article 8 claim and no evidence of any compelling circumstances had been provided to show that the judge would be justified in allowing the appeal outside the Rules.
6. The appellant challenged the judge’s decision and First-tier Tribunal Judge Lever granted leave on the basis that it was arguable:
“That at paragraph 7 the judge erred in stating that the respondent had discharged the burden of proof given the reasonably high standard to demonstrate dishonesty and the paucity of reliable evidence in the respondent’s documents. Certainly the case of Qadir explained and highlighted the deep concerns felt for some time with this case and it is arguably an error of law for the judge to have paid no heed to that case.”
7. The appellant did not appear and was not represented at the hearing before me. Nonetheless, I adjourned the proceedings until later on in my list. It was due to be heard at 10 o’clock. At 10.40 I found myself satisfied that the appellant had been given proper notice of the date, time and place fixed for the hearing of the appeal by first class post on 8th February. No explanation for the appellant’s non-attendance had been given.
8. Mr Bramble told me that he relied on SM and Ihsan Qadir v Secretary of State for the Home Department (ETS – evidence – burden of proof) [2016] UKUT 00229. In that case, the Tribunal found themselves satisfied with the Secretary of State’s generic evidence combined with her evidence particular to those two appellants suffice to discharge the evidential burden on her approving that their TOEIC certificates had been procured dishonestly.
9. Judge Khan looked at the Secretary of State’s evidence at paragraph 5 of the determination and at paragraph 7 found that he too was satisfied that there was sufficient evidence before him in the documentation within the respondent’s bundle to establish that the evidential burden had been discharged. In paragraph 8 he found that there was no evidence put before him by the appellant to “controvert such evidence submitted by the respondent”.
10. Mr Bramble explained that the appellant had chosen not to give any evidence at all. He had not provided any innocent explanation or, indeed, any evidence to show that he had taken the test. In fact he had not provided any evidence at all and had not even bothered to appear at the hearing. In the circumstances, Mr Bramble submitted that there was no error of law identified in the determination of Judge Khan. He pointed out that the grounds of appeal simply seemed to give additional evidence and do not in themselves identify any error of law either. He invited me to dismiss the appeal.
11. The appellant’s grounds of appeal are predicated on the basis that the respondent had failed to establish her case. Judge Khan found that he was satisfied on the evidence provided to him in the appellant’s bundle, including the witness statements of Rebecca Collings and Peter Millington and the criminal enquiry report that he was satisfied that the respondent had discharged the evidential burden on her proving that the appellant’s TOEIC certificate had been procured by dishonesty. He says as much in paragraphs 7 and 8. In paragraph 8 he points out that there is no evidence before him at all to contradict that evidence. Indeed, not only did the appellant not submit any evidence the appellant asked for an appeal without an oral hearing and in the circumstances, it was inevitable that the judge would conclude as he did.
12. The last challenge in the appellant’s grounds suggests that the Secretary of State failed to recognise the appellant’s Article 8 right in the light of the authority of CDS (PBS, “available”, Article 8) [2010] UKUT 305. However, no challenge is made to the judge’s findings in respect of Article 8. Given that there was no evidence submitted to the judge in support of the appeal it was almost inevitable that he would dismiss it. I find that he was entitled to do so in the circumstances. I am satisfied that the making of the judge’s decision in this appeal did not involve the making of an error of law. I uphold his decision.
13. No anonymity direction is made.
14. The decision of the First Tier Tribunal Judge is upheld.

Richard Chalkley
A Judge of the Upper Tribunal.

Fee Award.
The appeal is dismissed therefore there can be no fee award.

Richard Chalkley
A Judge of the Upper Tribunal