Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26332/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 23 March 2017
On 30 March 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Secretary of State for the Home Department
Appellant
and

Hussain Ahmed
[No anonymity direction made]
Claimant

Representation:
For the claimant: Mr I Khan, instructed by PGA Solicitors LLP
For the respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the Secretary of State’s appeal against the decision of First-tier Tribunal Judge Adonian promulgated 5.8.16, allowing the claimant’s appeal against the decision of the Secretary of State, dated 13.7.15, to refuse his application made on 15.9.14 for leave to remain in the UK as a Tier 4 student migrant.
2. The Judge heard the appeal on 15.7.16.
3. Upper Tribunal Judge Martin refused permission to appeal on 16.12.16. However, when the application was renewed to the Upper Tribunal, Upper Tribunal Judge Perkins granted permission on 8.2.17.
4. Thus the matter came before me on 23.3.17 as an error of law appeal in the Upper Tribunal.
Error of Law
5. For the reasons briefly summarised below, I was not satisfied that there was any material error of law in the making of the decision of the First-tier Tribunal such as to require the decision of Judge Adonian be set aside.
6. I note that the application was refused for three reasons:
(a) The allegation that in a previous application made in 2013 the claimant submitted an ETS English language test certificate which had since been invalidated on the basis that the test was taken by a proxy;
(b) Failure to produce within a reasonable time documents required by the Secretary of State to establish his claim to remain, namely a passport;
(c) No valid CAS reference was submitted with the application.
7. In summary, having heard the claimant in oral evidence, the judge believed that he had sat the English language test and thus that the certificate had not been obtained fraudulently. The appeal was thus allowed. It does not appear that the First-tier Tribunal determined the second and third reasons for refusal set out above. Judge Adonian referenced them at [4] – [6] but considered those reasons for refusal no further.
8. However, the grounds of application for permission to appeal rely solely on the ETS decision and do not address the omission in relation to the CAS and the submission of the passport. Consequently, those issues are not before the Upper Tribunal.
9. The grounds assert that the judge failed to follow SM & Qadir (ETS- Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) in the application of the evidential and legal burden of proof.
10. Upper Tribunal Judge Martin, sitting as a judge of the First-tier Tribunal, considered the grounds unarguable, stating, “The Judge correctly applied Qadir and having heard the evidence found the Secretary of State had not discharged the legal burden of proving dishonesty by the (claimant) [17].”
11. However, in granting permission to appeal, Upper Tribunal Judge Perkins accepted it is arguable that the First-tier Tribunal Judge was entitled to believe the claimant and so find that he had taken the test in question. “The difficulty is that the First-tier Tribunal Judge did say at paragraph 17 that the respondent had not discharged the legal burden that was on her. Arguably that finding is contrary to guidance given in SM & Qadir (ETS- Evidence – Burden of Proof) [2016] UKUT 00229 (IAC).”
12. Judge Perkins added, “It will be helpful if the respondent can explain how she could resist a decision setting aside the decision of the First-tier Tribunal and then remaking it allowing the (claimant’s) appeal because he had established that he had taken the test.”
13. I accept that the way in which the First-tier Tribunal Judge addressed the burden of proof at [17] of the decision was muddled. The judge found that the additional statement of Hillary Rackastraw did “not take matters any further and the SSHD has not discharged the burden of proof. The legal burden is on her which has not been discharged.”
14. In Qadir, the Upper Tribunal held that the generic evidence adduced by the Secretary of State, together with that limited evidence specific to the applicants in that case, was sufficient to discharge the evidential burden of proof, shifting the evidential burden to the claimant to demonstrate an innocent explanation, on which, the legal burden remains with the Secretary of State to discharge the burden of proof. It is clear that the First-tier Tribunal did not consider the evidential burden and simply found that the legal burden had not been met by the Secretary of State.
15. However, as Judge Perkins pointed out, the judge heard evidence from the claimant and was satisfied that notwithstanding the evidence adduced by the Secretary of State, he had genuinely taken the test. It was open to the judge to believe the claimant’s account. The grounds at [4] are a mere disagreement with the judge’s conclusion that the claimant had taken the test, suggesting that his claim was “entirely uncorroborated” and failed to explain specifically of what the test consisted.
16. Even though the judge had not adequately addressed the evidential and legal burden in the way suggested in Qadir, given the findings of the Tribunal as to the claimant’s evidence, accepting that he had taken the test, it is inevitable that the legal burden could not be discharged. The finding that he had taken the test was more than sufficient to discharge any evidential burden requiring an innocent explanation. On this issue, the outcome of the appeal would have been the same regardless as to whether Qadir was properly followed or not. Thus whilst there may have been an error of law, it cannot be said to be material to the outcome of the decision, and thus there is no purpose in simply setting the decision aside, preserving the findings, only to remake it by allowing the appeal.
17. Given that the Secretary of State did not appeal the omission of the Tribunal to address the other reasons for refusal of the claimant’s application, it would be entirely unfair to the claimant for me to set the decision aside and dismiss it on those grounds. However, that the Secretary of State may well make a further decision refusing the application on those same grounds.

Conclusions:
18. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains allowed on immigration grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011). However, I make no fee award.
Reasons: No fee was payable as this was the appeal of the Secretary of State.

Signed

Deputy Upper Tribunal Judge Pickup

Dated