Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26298/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 20 February 2017
On 22 February 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
ZIA ULLAH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Holmes counsel instructed by Susan Paul Solicitors
For the Respondent: Mr Whitwell Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellant was born on 11 November 1985 and is a national of Pakistan.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Hussain promulgated on 1 June 2016 which allowed the Appellant's appeal against the decision of the Respondent dated 6 July 2015 to refuse his application for leave to remain on the basis of his marriage to a British citizen.
5. The refusal letter gave only one reason that underpinned the Appellants failure to meet the suitability and eligibility requirements that he had produced from 19 June 2012 in support of a previous application a language certificate that Educational Testing Service have confirmed was obtained by deception.
The Judge's Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Hussain ("the Judge") purported to allow the appeal under the Immigration Rules although there was no right of appeal under the Rules there was only an appeal against the refusal of a human rights claim.
7. Grounds of appeal were lodged which did not raise any issue in respect of the basis on which the appeal was allowed but argued in essence that the Judge erred in his understanding of and failed to give sufficient weight to the evidence from Professor French and had applied the wrong standard of proof in that he repeatedly referred to the requirement for the Respondent to prove to a 'high degree of probability' that the Appellant was guilty of deception whereas there is only one standard of proof.
8. On 30 September 2016 Judge Froom gave permission to appeal.
9. At the hearing I heard submissions from Mr Whitwell on behalf of the Respondent that:
(a) He relied on the grounds of appeal.
(b) The Judge repeatedly refers to the requirement for a high degree of probability which sets too high a standard: there is only one civil standard.
(c) In relation to Professor French it is not an attack on the weight given to the report but rather the Judges understanding of it: he failed to properly engage with Professor French's findings.
10. On behalf of the Appellant Mr Holmes submitted that:
(a) There was no question that the Judge went on to consider at paragraph 5 of his decision the second stage of the process described in Qadir, the explanation given by the Appellant for what happened on the test day and accepted that the Appellant had provided a plausible explanation that suggested he had not used a proxy. This was not challenged in the grounds.
(b) At paragraph 58 of Qadir the standard of proof was considered and the strength and quality of such evidence.
(c) Mr Schwenk in his skeleton argument before the Judge referred to Gazi v SSHD (ETS-judicial review)IJR [2015] UKUT 00327 in which the Respondent own EIG was reproduced at paragraph 28 and stated that the 'evidence must always prove to a high degree of probability that the deception had been used.'
(d) No issue was taken at the time of the hearing to the reference to their own policy document and the requirement for cogent evidence. The Judge does not impose a higher burden but merely uses their own words to describe the cogency of evidence required.
(e) In relation to Professor French the Respondent is attempting to reargue the case in suggesting that his evidence was beyond reproach and should have been preferred over that of Dr Harrison.
(f) Professor French conceded that there are errors in the process; there are limitations in the software and there were more false positives than negatives; he did not produce the material his report was based upon or release the recordings used.
(g) Professor French did not address the numerous criticisms raised by Dr Harrison as to the deficiencies of ETS and the Respondent simply seeks to reargue the case.
11. In reply Mr Whitwell argued on behalf of the Respondent submitted that the policy document referred to in Ghazi may not have been the policy at the time of the impugned decision.
Legal Framework
12. At paragraph 58 of Qadir the issue of the burden of proof in such cases is helpfully summarised:
"It is well established that proof of dishonesty on the part of the immigrant concerned is required in order to establish either "false representations" or "false documents" under paragraph 321A of the Rules: see AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773, at [44] and [51] especially. Following the consumption of large quantities of judicial ink, the legal rule which has emerged with unmistakable clarity is that in civil proceedings there is but one standard of proof, namely proof on the balance of probabilities. One of the clearest expositions of this rule is found in the judgment of Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468, at [62]: "Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."
In short, as emphasised by Lord Carswell in Re D [2008] UKHL 33, at [28], the fundamental judicial task is to decide whether, having regard to the context, the evidence adduced is of sufficient cogency to warrant the conclusion that the burden of proof has been discharged to the civil standard.."
Finding on Material Error
13. Having heard those submissions I reached the conclusion that the Tribunal made no errors of law that were material to the outcome of the case.
14. I start by reminding myself that this appeal was never an appeal against the refusal of leave under the Rules it was an appeal against a refusal of a human rights claim. However the extent to which the Appellant did or did not meet the Rules was clearly relevant to the issue of proportionality. There was only one issue that impacted on his ability to meet the requirements of the Rules as set out in the refusal letter and that was whether the Appellant had produced a language certificate that he had obtained by fraud in that he had used a proxy to take the examination.
15. The Judge was referred to the decision in Qadir both in a detailed skeleton argument drafted by Mr Schwenk and expanded upon in oral submissions and this is set out in full in the Judges record of proceedings if not in great detail in the decision. The Judge recognised at paragraph 8 of his decision that he was being required to address the same issues and evidence as arose in Qadir.
16. There can be no question that the court in Qadir was clear as to the correct standard of proof and how it was expressed. I note that the Judge in this case while using the term 'high degree of probability' he was using a term that Mr Schwenk argued was contained within the Respondents own policy guidance to describe the sort of cogent evidence required to establish deception. While Mr Whitwell argues that this policy may not have been in force at the time of the impugned decision he can go no further than that but the documents in question are in the public domain and I note therefore that Chapter 3.2 of the current EIG continues to use exactly the same expression in describing the nature of the evidence required.
17. Moreover I am satisfied that the Judge makes clear at paragraph 10 'I therefore find that the respondent has not discharged the burden of proof on her to establish that there has been fraud by the appellant for the same reasons relating to ETS as found in SM'. The Judge therefore assessed the evidence in the way advised within Qadir. He accepted that the Respondent had met the initial evidential burden because he went on to consider at paragraph 5 the innocent explanation given by the Appellant and accepts his account of what happened on the day to suggest that he took the test and did not use a proxy : while this may have been more helpfully set out in more detail the body of his decision it is set out in the ROP.
18. Having heard the Appellants explanation that he went on to consider the evidence of the Respondent in detail including that of Dr Harrison and Professor French. I do not accept that he misunderstood the evidence of Professor French but rather at paragraph 9 set out the reasons why he gave more weight to the evidence of Dr Harrison and those reasons were open to him.
19. I remind myself of what was said in Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) about the requirement for sufficient reasons to be given in a decision in headnote (1) : "Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge."
20. The only error was in allowing the appeal under the Rules which was no longer open to him and therefore given his findings I will substitute a decision to allow the appeal on human rights grounds.
CONCLUSION
21. I therefore found that no errors of law have been established and that the Judge's determination should stand other than as set out below.
DECISION
22. The decision to allow the appeal under the Rules is substituted by a decision to allow the appeal on human rights grounds.

Signed Date 20.2.2017
Deputy Upper Tribunal Judge Birrell