Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25657/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 25 January 2017
On 2 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

FAYAZ MUHAMMAD KHAN
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondent: Mr Hussain, instructed by Hussain Immigration Law Ltd

DECISION AND REASONS

1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Fayaz Muhammad Khan, was born on 1 April 1986 and is a male citizen of Pakistan. He entered the United Kingdom in 2011 as a student. He subsequently applied for leave to remain as the spouse of a British citizen but his application was refused on 30 June 2015 when removal directions were also made. He appealed to the First-tier Tribunal (Judge Myers) which, in a decision promulgated on 11 July 2016, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. This is an ETS appeal. At the time of her decision, Judge Myers had available to her the Upper Tribunal decision in SM and Qadir (ETS – evidence – burden of proof) [2016] UKUT 00220 (IAC). Since that date, the Court of Appeal has given its judgment in SM and Qadir [2016] EWCA Civ 1167 (25 October 2016). Although the Secretary of State agreed with the respondents in the appeal before the Court of Appeal that the appeal should be dismissed without determination of the merits. Notwithstanding that development, the Court of Appeal proceeded to give a judgment, in part at least to give guidance as to similar ETS cases outstanding within the Court of Appeal itself and the Upper Tribunal. At [21-27] Beatson LJ stated:
21. As to whether the Secretary of State had discharged the legal burden of proof (ie establishing on the balance of probabilities that the respondents had procured their TOEIC certificates by deceit), the UT stated that all the findings and evaluative assessments it had earlier referred to had to be balanced. As to the evidence of the respondents, the UT concluded (see [100]) that while there were imperfections in Mr Majumder's evidence, it accepted its core elements. It also accepted the central thrust of Mr Qadir's evidence and it stated there were no significant flaws in the documentary evidence adduced by both.
22. As to the evidence adduced on behalf of the Secretary of State, the UT held at [101] that the generic evidence had narrowly discharged the initial evidential burden of proof, but it concluded (see [70] and [100]) that the evidence adduced on behalf of the Secretary of State had been heavily weakened by the examination to which it was subjected by Dr Harrison's evidence which the UT accepted in its entirety. It stated that there were also many shortcomings in the evidence of Ms Collings and Mr Millington (see [63]), and those shortcomings meant the Secretary of State had failed to discharge the legal burden of proof on her to establish on the balance of probabilities that the prima facie innocent explanations by the respondents were to be rejected.
23. I turn to the reasons for conceding the appeal. Mr Kovats accepted that in the light of all the evidence before the UT it had not erred in law in concluding that the generic and specific evidence put before it by the Secretary of State did not discharge the legal burden of proof that she [wore?] to show dishonesty. He made it clear that he abandoned any submission that the UT in the present case did not treat Dr Harrison's evidence in a legitimate way. It followed that there was no basis for ground 3, the first of the two grounds on which permission was granted: averse treatment of the Secretary of State's evidence and misunderstanding of Dr Harrison's evidence.
24. I agree with Mr Kovats' reassessment of this aspect of the case. In my judgment, ground 3 and the submissions in the skeleton argument drafted by the Secretary of State's former counsel (I must emphasise that Mr Kovats has only recently come into this case) are fundamentally misconceived and ignore the UT's reasoning in its determination. The summary of Dr Harrison's evidence in the UT's determination (at [34]) states:
"While the ETS automated voice sample analysis is in the abstract reasonable, the available evidence fails to demonstrate a satisfactory level of reliability."
In short, he considered that the Secretary of State's evidence did not provide sufficient information to allow any assessment of the reliability of the voice recognition processes. Moreover, the UT did not regard Dr Harrison's evidence as a knock-out blow to the Secretary of State's evidence. It also considered (see [19] and [23]) the lack of expertise in the science of voice recognition of either of the Secretary of State's experts and (see [25]) that Mr Millington had nothing with which to counter Dr Harrison's analysis and opinion.
25. I also consider that ground 4 - that the UT erred in failing to have regard to the quality of the respondents' English when concluding that neither of them had cheated in their TOEIC exams - goes nowhere. The UT was entitled to conclude that Mr Majumder's college documents were a better gauge of his mastery of English than his performance at the hearing because there had been a passage of some three years between the date of the test and the hearing and because the members of the panel were not voice recognition experts but were performing a subjective view. The Tribunal did consider their English when considering their oral evidence: see in particular the matters I have summarised above.
26. These are the sorts of assessments of factual evidence that the UT was entitled to undertake after setting aside the First-tier Tribunal's decision and remaking the decisions.
27. 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 had 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.
3. In the present case, the evidence adduced by the Secretary of State was that referred to in SM although, as Mrs Pettersen pointed out, there was the additional factor that the appellant had obtained his test result from the Manchester Innovation Learning Centre, a college which had been subject to a separate (and critical) report commissioned by the Secretary of State. However, no part of that report is specific to the appellant himself. Further, what appears to have concerned Judge Macleman, who granted permission to appeal in the Upper Tribunal, were the observations of Judge Myers in the First-tier Tribunal at [20]:
Although the appellant can speak some English he was insufficiently fluent to give his evidence in English. However, I accept that in the formality of the hearing many people may prefer to use an interpreter. He has subsequently passed another language test in September 2014 although this was only at entry level ESOL speaking and listening grade 2. Neither he nor his wife were asked much in evidence about his studies in the UK or the process of the language testing. The appellant did say that he had completed the assignments for his HNC and had paid his course fees but showed a remarkable lack of concern that the college had closed before he had an opportunity to take his exams and obtain the qualification he claimed to have studied for. His wife gave evidence that he had attended college 2-3 days a week and was financially supported by his family in Pakistan. In conclusion, the appellant was an unimpressive witness but he and his wife gave consistent evidence that he was a student in the UK and he is described as such on his marriage certificate. In the absence of any evidence directly linking him to a fraudulent language test, I find that the respondent has failed to discharge the burden of proving dishonesty.
4. Judge Macleman considered that this assessment was “largely negative to the appellant” but “arguably fails to give a reason for the outcome being in his favour.”
5. The ETS jurisprudence has now established that the initial and evidential burden which rests on the Secretary of State may be discharged subject to crossing a “modest threshold.” Thereafter, the evidential burden transfers to the appellant to provide an explanation for what has occurred. In the present case, such an explanation was given by the appellant both in his witness statement and in oral evidence before the judge. The appellant has sought to explain why he had not used deception in taking his language test in August 2012. I acknowledge that the findings at [20] which I have quoted above appear to show that the appellant was not an impressive witness before Judge Myers but ultimately it was the task of the judge to determine whether the appellant had discharged the evidential burden which, notwithstanding his unimpressive testimony, she clearly accepted that he had. The judge did say because she found consistency between the evidence given by the appellant and his wife. That may not be a very strong reason for accepting the appellant’s evidence but it remains a reason and I cannot see why the Upper Tribunal should interfere with the judge’s findings. Thereafter, the judge was faced with the same “frailties” in the generic evidence which had troubled the Upper Tribunal in SM. As we now know from the Secretary of State’s conduct of the SM appeal in the Court of Appeal, and the court’s findings at [22] that the generic evidence put before the Tribunal in the present case was insufficient to discharge the legal burden upon the Secretary of State. At the end of the day, I agree with Mr Hussain that a combination of the outcome of the litigation in SM (in which the same evidence was relied upon as in the present appeal) and the fact that Judge Myers accepted the appellant’s evidence and explanation despite the somewhat unsatisfactory nature of his evidence, should lead me to refrain from interfering with Judge Myers’ decision.
Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

Signed Date 10 February 2017

Upper Tribunal Judge Clive Lane