Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26375/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 3 January 2017
On 5 January 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
FASIHUDDIN AHMED MOHAMMED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Ali of ZA Solicitors
For the Respondent: Mr C Bates 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. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. The Appellant was born on 24 March 1988 and is a national of India.
4. This is an appeal by the Respondent against the decision of First-tier Tribunal Judge A D Smith promulgated on 15 April 2016 which allowed the Appellant's appeal against the decision of the Respondent dated 10 July 2015 to refuse an application dated 30 May 2014 for leave to remain in the UK as a Tier 4 Student under paragraph 322(2) and 245ZX(a) of the Immigration Rules..
5. The refusal letter gave a number of reasons:
(a) In support of an application dated 22 December 2012 for leave to remain the Appellant submitted a TOEIC certificate from ETS that ETS have since declared to be invalid.
(b) The Appellant was therefore not awarded any of the points claimed for a CAS or maintenance.

The Judge's Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Smith ("the Judge") dismissed the appeal against the Respondent's decision.
7. Grounds of appeal were lodged arguing that the Judge had erred in finding that there was no evidence to support the proposition that the Appellants test had been subject to voice verification tests when he had a bundle including the lookup tool confirming the Appellants test was invalid and the statements from Peter Millington and Rebecca Collings; the materiality of the grounds are unaffected by the unreported decision in SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC) because that case post dated this decision.
8. First-tier Tribunal Judge Page gave permission to appeal.
9. At the hearing I heard submissions from Mr Bates on behalf of the Respondent that:
(a) The Judge made a material error in paragraph 14 of the decision in stating that there was 'no evidence' before him to support the proposition that the appellants tests had been subjected to voice verification tests.' He relied on the case of Shehzad [2016] EWCA Civ 615 to suggest that the evidence of Collings and Millington and the look up tool were sufficient to discharge the legal burden of proof on the Secretary of State of proving that the TOEIC certificate was procured by dishonesty.
(b) The Judge approached the evidence from a flawed position which contaminated his other findings.
(c) The Judge failed to consider or weigh in the countervailing evidence that the certificate was invalid.
10. On behalf of the Appellant Mr Ali submitted that:
(a) He relied on his response.
(b) The Judge looked at the evidence in the round.
(c) The Judge noted that the Appellant gave evidence about the circumstances in which he took the test and was asked no questions by the HOPO in cross examination.
(d) The Judge noted that the Appellant spoke very good English.

Finding on Material Error
11. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
12. I note that the Grounds of Appeal argue that Judges decision was unaffected by the decision in Qadir because it post dated the Judges decision and 'no UTT decision has retrospective effect.' Mr Bates before me then sought to argue that the Judge was in error in being unsatisfied with the evidence of fraud before him because Shahzad suggests that such evidence is sufficient: I note that Shahzad was before the Court of Appeal on 29 June 2016 and also post dated the Judges decision in this case.
13. I am satisfied that the Judge dealt with the case as the law stood at the time of the decision and as it was argued before him. The Judge properly set out the burden and standard of proof at paragraph 4 of his decision recognising that were there was an allegation of fraud by the Respondent the burden of establishing such fraud was on them and made reference to the case of AA (Nigeria) v SSHD 2010 EWCA Civ 773 to that effect.
14. The Judge noted at paragraph 9 that he asked the HOPO that apart from the 'general evidence' of Millington and Collings what evidence there was that that the Appellants test was examined in the way that is suggested in the refusal letter which was 'ETS has a record of your speaking test?ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker.' Given that the Respondent bears the burden of proving the fraud the Judge was therefore entitled to note that there was no evidence of the recording of the Appellant, or the check of that recording or what the significant evidence was that led to the conclusion the Appellant used a proxy test taker. None of the evidence specifically referred to in this refusal letter was produced before him. What was produced before him was generic evidence from Millington and Collings explaining the general nature of the fraud and the tests undertaken and confirmation that his tests were declared invalid (the lookup tool)
15. Therefore the Judge was identifying in paragraph 14 that the specific evidence referred to in the refusal letter, which was not the evidence of Millington and Collings and the look up tool, had never been produced. I am satisfied that in this case that entitled him to find that there was no evidence of fraud by this Appellant. While I accept that a later case found such evidence passed the initial legal burden that was clearly not the basis on which the case was argued before the Judge as the HOPO in final submissions relied only on the the refusal letter which no mention of the 'generic evidence'.
16. Moreover even had the Judges approach to the generic evidence been an error I am satisfied that it would not have been material to the outcome. It was always open to the Appellant to proffer an innocent explanation and if that explanation met a basic level of plausibility, the burden switched back to the SSHD to answer that evidence. At the end of the day the SSHD bore the burden of proving dishonesty. Therefore the Judge did not simply stop after determining that there was no evidence of fraud but went on to the second stage and went on to consider the Appellants explanation. The Judge recorded at paragraph 7 the unchallenged evidence given by the Appellant, in English which was of a high standard, as to when and where he took the test and how long it took. The Appellant drew the Judges attention to the fact that he had an IELTS certificate dated 21 October 2009 showing an overall band score of 6 which was evidence of language proficiency from an unchallenged source pre dating the TOEIC certificate and lends significant weight to his case that he had no need to cheat. He noted that no questions were put to the Appellant and no suggestion was put to him therefore that he had not attended the test centre as he claimed he had done: It would have been open to him to find that given that the evidence of fraud produced in court was different to that identified in the refusal letter that the Appellants oral evidence should,, in fairness have been challenged by the HOPO. The Judge in paragraph 14 quite clearly accepted that while ETS may have been involved in a fraud that all of the evidence taken together did not show that this Appellant had obtained his certificate by fraud. These were findings that were open to him on the evidence and on the basis of the caselaw as it stood on 9 April 2016.
CONCLUSION
17. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
18. The appeal is dismissed.

Signed Date 4.1.2017

Deputy Upper Tribunal Judge Birrell