Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25692/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 9th August 2016
On 27th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

JAKVAN TAKUB ABDULLAH KABA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Miah of Counsel instructed by M A Consultants
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Before the Upper Tribunal the Secretary of State becomes the appellant. However, for the avoidance of confusion and to be consistent, I shall continue to refer to the parties as they were before the First-tier Tribunal.

Background
2. On 3rd June 2016 Judge of the First-tier Tribunal Page gave permission to the respondent to appeal against the decision of Judge of the First-tier Tribunal Shimmin in which he allowed the appeal against the decision of the respondent to refuse leave to remain on the basis of family and private life in accordance with the provisions of Appendix FM of the Immigration Rules. The application was refused for the main reason that the appellant did not meet the suitability requirements set out in paragraph S-LTR.2.2. of Appendix FM. That was because it was alleged false information, representations or documents had been submitted in relation to the application or there had been a failure to disclose material facts in relation to the application. The respondent stated that the appellant had obtained an ETS English language qualification by deception.
3. In granting permission Judge Page summarised the grounds of application. The respondent contended that the judge's reasoning was "entirely inadequate" and failed to give proper weight to the respondent's documentary evidence. In particular objection was taken to the judge concluding that the respondent could not hide behind an "un-evidenced allegation by ETS" to discharge the burden of proof upon her. Judge Page thought the quoted grounds gave rise to an arguable error on a point of law.

Submissions
4. At the hearing before me Mr Bates confirmed that the respondent relied upon the full grounds. In these the respondent contends that witness statements provided to support the allegation of deception, when read in conjunction with one another, detailed the investigation undertaken by ETS in this appellant's case along with thousands of other applicants. It was wrong for the judge to rely upon comments made by one witness, Peter Millington, as to the potential limitations of the VRS system which had, in fact, been subject to human verification. The judge should have given due consideration to the specific evidence identifying the appellant as an individual who had exercised deception, particularly in the form of excerpts taken from the ETS spreadsheet which identified sufficient irregularities in relation to the appellant's test taking to warrant cancellation of his results.
5. Mr Bates also handed to me a copy of the Court of Appeal decision in Shehzad and Anor [2016] EWCA Civ 61 on the basis that the judge had not recognised that the burden of proof shifted to the appellant and the assessment of evidence should have been on that basis.
6. Mr Miah submitted that the judge had given cogent reasons for concluding that the respondent's evidence coupled with that of the appellant meant that it had not been shown, to the civil standard, that the appellant had used deception. The judge had noted (paragraph 38) that the appellant had already passed an English language test when he had entered the United Kingdom as a student and had also spoken good English at the hearing.
7. I was referred to paragraph 23 of the Court of Appeal decision in Shehzad which emphasised that the issue of whether or not an appellant had used deception was likely to be an intensively fact-specific matter and the appeal before the Court of Appeal was only concerned with the initial stage of establishing a prima facie case and the evidential burden on the Secretary of State at that stage.

Conclusions and Reasons
8. At the end of the hearing I reserved my decision and now set out my reasons for concluding that the decision of the First-tier Judge does not show an arguable error on a point of law and shall stand.
9. The respondent relies, amongst other things, upon the decision in Shehzad. I conclude, however, that the decision of the First-tier Judge does not show that there can be any material criticism of the judge's application of the burden of proof. In paragraph 3 of Shehzad the Court of Appeal stated:
"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'. This 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 if that individual does so the burden 'shifts back' to the Secretary of State: ...".
10. Although the Court of Appeal was considering an application of paragraph 322(1A) of the Immigration Rules the deception alleged in this case under paragraph S-LTR.2.2. of Appendix FM is essentially the same. It is clear from the findings of the judge from paragraph 17, onwards, of the decision that the judge was not satisfied that the respondent had met the burden of proof upon her at the third stage. That is because the judge gives detailed consideration to the evidence put forward by the appellant to counter the respondent's evidence and allegations designed to establish a prima facie case. As Shehzad makes clear the evidential burden shifts back to the respondent once the appellant has provided a plausible innocent explanation. That was done through the evidence produced by the appellant at the hearing through oral and documentary evidence from both the appellant and his wife. Although the judge does not make specific reference to the shifting of the burden of proof that is not, I conclude, material. But, even if it is said that the judge was only considering the burden of proof at the initial stage of the establishment of a prima facie case then a failure to establish such a case would entitle the judge to dismiss the appeal in any event. Either way I do not see this allegation as amounting to a material error.
11. I view the respondent's criticisms of the conclusions of the judge in relation to the evidence produced to prove deception as no more than a disagreement with his cogently reasoned findings. The respondent complains that the judge was wrong to find that her evidence did not put forward the exact reason why ETS had invalidated the certificate of the appellant. This was on the basis that the witness statements when read in conjunction with one another extensively detailed the investigation undertaken in the appellant's case along with "thousands of other applicants". However, the judge does not reach conclusions about that evidence only on the basis that the evidence was "generic". From paragraph 23 onwards of the decision the judge makes specific reference to the statements of Mr Millington and Ms Collings. For example, in paragraph 24, the judge notes that ETS had confirmed that there were multiple reasons for invalidation of test certificates some of which might or might not involve fraud or deception. The appellant had not been made aware of the precise reason for his qualification being invalidated. Further, similar reason is given in the subsequent paragraph where the judge comments that a person's certificate could be invalidated simply because the proxy test taker was there during the same sitting. The judge reaches the conclusion, open to him, that such evidence would not be enough to show that the appellant knowingly used a proxy test taker or was involved in some other dishonesty during the examination. Further, as the judge comments in paragraph 26, if a test score were to be cancelled that, of itself, would not justify the inference of deception as Ms Collings claimed. Subsequent paragraphs of the judge's conclusions also point to a lack of specificity in the evidence produced by the respondent.
12. In addition to the evidential defects to which the judge has referred in relation to the respondent's evidence, the judge also refers to the appellant's evidence, from paragraphs 38 onwards. This gives additional reasons for reaching the conclusion that the respondent's evidence could not be taken to prove deception. As the Court of Appeal commented in Shehzad, the question of what evidence would be sufficient to enable a Tribunal to conclude that there has been no deception is likely to be an intensively fact-specific matter. This was so in this case where the judge evidently gave careful consideration to failings in the evidence put forward by the respondent in the specific circumstances of the appellant's case taking account of all the evidence. Whilst the evidence of the respondent might have been capable of creating a prima facie case, the decision shows that the judge gave cogent reason for finding that the respondent had not discharged the ultimate burden of proof imposed upon her having regard to the explanations of the appellant and the failure of the respondent's evidence to adequately identify specific deception on the part of the appellant.

Decision
The decision of the First-tier Tribunal does not show an error on a point of law and shall stand.

Anonymity
Anonymity was not requested in this appeal nor do I consider it appropriate.

Signed Date

Deputy Upper Tribunal Judge Garratt 27th September 2016