Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/25920/2015
IA/25921/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 January 2017
On 18 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Mrs ankitaben mayukumar patel
Mr mayurkumar jagdishbhai patel
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: No appearance
For the Respondent: Mr S Whitwell, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants, nationals of India dates of birth respectively 9 June 1980 and 4 July 1975, appealed against the Respondent's decision to refuse leave to remain dated 2 July 2015. Their appeals against that decision came before First-tier Tribunal Judge Ford and on 4 July 2016 he dismissed their appeals under the Rules. The position was that the Appellants and each of them had requested an oral hearing. After receiving notice of the hearing for 15 June 2016 in Birmingham their representatives London Imperial Immigration communicated to the Tribunal indicating that they were no longer acting and more importantly a further communication on behalf of the Appellants indicated that they no longer wished to have an oral hearing and requested the appeal to be decided on the papers.

2. They were notified that this could not be done without the Respondent's consent, which was not forthcoming, and whilst their attendance was excused the hearing was still in a float/reserve list and would be heard unless the Respondent objected without a hearing. What happened was that at the hearing on 15 June the Respondent was represented and a Home Office Presenting Officer made representations, obviously in pursuit of an objection to a written determination on the papers by the judge. The representations were around the issue of whether or not the Appellant had been involved in using a proxy test taker when undergoing her TOEIC examination at a private testing centre. The judge was familiar with and recited the case of SM and Qadir v SSHD [2016] UKUT 00229 (IAC) which now in the light of MA [2016] UKUT 450 has been further supported by the decision of Mujinder and Qadir [2016] EWCA Civ 1167.

3. The judge was also provided with what have been referred to as the 'generic' statements of Mr Millington and Miss Collings. It would appear the evidence was taken to be at least sufficient to engage and establish that there was a case to be addressed i.e. a proxy test taker had been used. The judge had the Appellant's bundle but there was no statement or effort it would seem to provide any innocent explanation of the issues raised by the Respondent. The written statement of the Appellant (AB32 to 34) does not in terms address any explanation of the Appellant's involvement in the test taking exercise: Rather a different issue was actually addressed namely whether or not a so called "60 day letter" should have been issued to the Appellant.

4. The statement of the Appellant contains a bare assertion that she undertook the test, the certificates are genuine and she denies deception but that is wholly insufficient to be an explanation or to be cogent evidence of her having undertaken the test. She gives no description of the nature of the test, the issues that she was expected to address nor does she give any description of attendance at the test centre or its circumstances or the way the test was conducted. There is nothing therefore to support her claim other than a bare assertion that she undertook the test. It was perhaps therefore unsurprising that, in the light of the Home Office Presenting Officer's submissions, the judge concluded that the Appellant had in fact used a proxy test taker and had not undergone the test. In the circumstances it seems to me that that was a conclusion that the judge was wholly properly entitled to reach.

5. So far as the grounds of appeal against the judges' decision are concerned what is suggested is that an innocent explanation was provided by a representatives' letter of 7 September 2015. If, it is said, that that letter was before the judge it is not on the file but I do not see how a representatives' letter and assertions could be sufficient evidence to displace the reasonable inference drawn that a proxy test taker had been used. The grounds argue in effect that there was unfairness in the way the judge dealt with it and received additional evidence on the date of the hearing. Insofar as the judge did receive any further evidence, for example from Professor Peter French or specific evidence from Matthew Lister and his documents then the fact is that the judge was entitled to proceed with it. If it had struck him that there was any element of unfairness in doing so he would have put the matter of the additional documentation to be served. Absent of any innocent explanation being proffered it was hardly likely even without the additional evidence, not least in the light of the case law, was going to lead to any different outcome to the appeal.

6. I therefore conclude that there was no unfairness in the judge proceeding with the case at a hearing and there was no unfairness in proceeding with the receipt of the evidence. Ultimately it was the choice of the Appellants not to attend the hearing and they would therefore, had they chosen to appear, had the opportunity to make any further representations on the innocent explanation but none has been forthcoming nor what response there was to the further evidence confirming the ETS exercise. The grounds cite the cases of MM (unfairness) E & R Sudan [2014] UKUT 105 and Miah [2014] UKUT 00515 and a general point on the issue of disclosure but those points generally made are not supported by the evidential context asserted.

7. It does not seem to me, not least when the Appellants have chosen not to appear today, that there is in fact any unfairness to the Appellants. In the circumstances when there is, even as of now, no innocent explanation to raise a scintilla of doubt about the outcome of this matter I conclude that the appeal should be dismissed.

8. The second ground raised in relation to what is said to be an invalid CAS is of course essentially dealt with by the circumstances of the proxy test taking in any event but it seems to me in the circumstances of the case the Secretary of State was entitled to take the view that she did at the relevant time and in the circumstances there is no substance in the point about the invalid CAS and the revocation of sponsorship.

Decision
The appeal is dismissed.
No anonymity direction is made.

Signed Date 14 January 2017

Deputy Upper Tribunal Judge Davey

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 14 January 2017
Deputy Upper Tribunal Judge Davey