Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26071/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 31 January 2017
on 15 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ABBAS KHALIQ

Respondent

For the Appellant: Mrs O'Brien, Senior Home Office Presenting Officer
For the Respondent: Mr Katani, of Katani & Co, Solicitors

DETERMINATION AND REASONS
1. The SSHD appeals against a determination by First-tier Tribunal Judge Farrelly, allowing an appeal by Mr Abbas Khaliq. The rest of this decision refers to the parties as they were in the FtT.
2. The SSHD's grounds, based on SSHD v Shehzad & Anr [2016] EWCA Civ 615, are that the "generic evidence" relied upon by the SSHD in ETS cases is sufficient to discharge the initial burden of proof, and leave it incumbent on an appellant to provide evidence raising an innocent explanation; that the judge failed to refer to the ETS spreadsheet provided, which showed the appellant's language test to been invalidated because there was evidence of fraud in his test; and that the judge did not address how the allegation of deception was rebutted.
Submissions for SSHD.
3. The judge said at paragraph 21 "the only evidence applicable is a generic statement provided", but that was not so. There was in the bundle at pages G & H evidence of invalidation of the test purportedly taken by the appellant.
4. The respondent was not represented in the FtT, but had provided further written evidence, to show that the address of the college at which the test was allegedly taken was in Manchester; the appellant's address at the time was in Glasgow; there were numerous test providers available in Scotland; and the college at which the test was purportedly taken had its licence revoked.
5. Even if the respondent had provided only the two generic statements by civil servants and the invalidation of the test result, that would have been enough to shift the burden. It was not necessarily final, but the judge would have to explain why he decided otherwise.
6. In this case the respondent provided more, and the judge did not mention it at all.
7. The judge said at paragraph 22 "There may have been innocent explanations why he went to this college", but that did not amount to any reasoning.
8. There was no examination of the evidence on either side.
9. It was also to be noted that the appellant had been found in previous proceedings to lack credibility and to have bought an earlier English certificate. The judge apparently gave that no weight because a copy of the decision was not provided, which was not a good reason. The judge had not explained why he had not factored in on the respondent's side the appellant's prior history of deceit in language testing.
10. The case should be remitted to the FtT.
Submissions for appellant.
11. There was no obligation on the judge to particularise every item of evidence. The specific item of evidence on which the SSHD now sought to rely was unremarkable. The judge listed the bundles of evidence before him and correctly said he would like to have seen direct evidence, but it was not there.
12. The respondent's interpretation of the case law was incorrect. Something more was required than simply generic evidence. This case could be distinguished from MA [2016] UKUT 00450 (paragraph 10, setting out the issues), because there it was accepted that the voice on the test recordings was not that of the appellant. No such concession was made in this case.
13. The only evidence provided by the respondent was of a generic nature, plus an entry in a spreadsheet. There was no provenance for that item of evidence. Where it came from and who was it prepared by, nobody knew. It was not of a nature sufficient to shift the onus to the appellant.
14. There were plain gaps in the evidence, so many of them that the judge should not be expected to fill them in on the respondent's behalf. The burden of proof had not shifted.
15. The grounds did not say anything about failure to refer to the respondent's further written evidence, or about prior deceit, so no error should be found to arise from those matters.
16. In any event, the judge was right to take no account of prior findings of deceit, on the analogy of criminal convictions not being admissible to prove guilt of other offences.
17. There was no error of law.
18. Alternatively, if there had been enough to shift the burden, the outcome could be supported by another route. The appellant provided an explanation in his statement, namely that he had sat the test. The judge did not have to set out what the innocent explanation was. The evidence was before the judge, and he plainly accepted it.
19. It was also significant that the respondent had not chosen to be represented at the hearing, even although aware that the onus might shift. The appellant not having been cross-examined, the judge was entitled to accept that he had taken the test.
20. The decision should stand.
Reply for SSHD.
21. The respondent did not have the resources to cover every hearing. The respondent's documents, in particular the reasoned refusal letter at page A1, and the further bundle, gave clear notice of the respondent's case of why the test result was held to have been fraudulently obtained. The judge was not bound to agree, but he was obliged to give the respondent an explanation for coming to a contrary conclusion. Fundamentally, in saying that the respondent provided "only generic evidence", the judge failed to look at what was before him.
Conclusions.
22. Mr Katani fought a valiant saving action, but the core contentions for the SSHD are accurate, for the reasons advanced in the submissions.
23. Judges do not have to go into every detail of evidence, but in this instance the judge went wrong on the essence of the case, saying that the evidence before him was only generic, when it was more than that.
24. The identification of an invalid test result did not require an outcome in favour of the SSHD, but, as now well established in the case law, it met the initial burden, and should have triggered examination of whether there was an innocent explanation, and whether the preponderance of evidence was one way or the other.
25. In absence of examination of the evidence of either side, the decision cannot stand.
26. I observe in passing, and in case the argument is renewed in the FtT, that in tribunals, evidence of a finding of prior deceit is not excluded by failure to produce a copy of the primary decision, or by analogy with rules against disclosure of convictions in criminal proceedings; such considerations go only to weight, not admissibility.
27. The decision of the FtT is set aside. None of its findings are to stand, other than as a record of what was said on that occasion. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
28. The member(s) of the FtT chosen to consider the case are not to include Judge Farrelly.
29. No anonymity direction has been requested or made.

14 February 2017
Upper Tribunal Judge Macleman