Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26956/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 25 January 2017
On : 13 February 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

zobair hossain
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim, instructed by AWS Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh, born on 11 May 1988. He has been given permission to appeal against the decision of First-tier Tribunal Judge Nicholls, dismissing his appeal against the respondent's decision to refuse his application for leave to remain as a Tier 4 (General) Student Migrant.

2. The appellant entered the United Kingdom on 23 November 2010 with leave to enter as a Tier 4 (General) Student Migrant until 31 May 2013. Further to an application made on 31 May 2013, he was granted leave to remain as a Tier 4 (General) Student Migrant until 31 December 2016. On 30 May 2014 his leave to remain was curtailed to 4 August 2014. On 4 August 2014 he made an application for leave to remain as a Tier 4 (General) Student Migrant. His application was refused on 13 July 2015.

3. The appellant's application was refused under paragraph 322(2) on the grounds that he had submitted, in relation to his previous application on 31 May 2013, a fraudulently obtained TOEIC certificate from the Educational Testing Service (ETS) in relation to an English language test he claimed to have taken (at Queensway College). The respondent had been informed by ETS that a proxy test taker had been used and that they had therefore declared the appellant's test result as invalid and cancelled it. As the appellant's application was refused under one of the general grounds for refusal, the respondent was not satisfied that he met the requirements of paragraph 245ZX(a) of the immigration rules.

4. The appellant appealed against that decision. His appeal was heard on 30 June 2016 by First-tier Tribunal Judge Nicholls. The judge heard oral evidence from the appellant and submissions from both parties. He concluded that the generic evidence originally produced by the respondent in this case, which consisted of the witness statements from Rebecca Collings and Peter Millington, as well as the appellant's individual entry in the ETS-SELT source data, was the same as that found in SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 to be sufficient to meet the evidential burden of proof. He found, further, that with the additional evidence from the respondent, which included a report from Professor French, a statement from Matthew Harold of the Home Office, a Test Centre Lookup Tool and a report from a detective inspector of the Immigration and Enforcement Criminal and Financial Investigation Team in regard to Queensway College London, the respondent's evidence went well beyond the bare minimum required to meet the evidential burden of proof. He found that the appellant's evidence did not discharge the evidential burden of providing an innocent explanation and he concluded that the evidence showed that he had knowingly submitted a false TOEIC English language test with his application for leave to remain. The judge considered that the respondent's decision to refuse the appellant's application under paragraph 322(2) was therefore in accordance with the law, that the appellant could not meet the requirements of the immigration rules and that his removal from the UK would not be in breach of Article 8. He dismissed the appeal on all grounds.

5. The appellant then sought permission to appeal to the Upper Tribunal. Permission to appeal was initially refused in the First-tier Tribunal but was subsequently granted on 12 December 2016 in the Upper Tribunal on the following grounds:

"This is an ETS case: see SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229."

Appeal Hearing

6. At the hearing before me Mr Karim submitted that the judge had misdirected himself on the burden of proof at [4] and had erred in his assessment of the appellant's evidence. He was wrong to rely on the appellant's level of English language at the hearing and he provided no reasons in support of his finding that the appellant's explanation lacked detail and credibility. Mr Karim submitted further that the judge had failed to consider whether the respondent had exercised the required discretion under paragraph 322(2) of the immigration rules.

7. Mr Duffy queried the grant of permission which contained no reasons. He submitted that the judge had not erred in his consideration of the burden of proof. He had not relied on the appellant's English language ability at the hearing but had referred to it as an aside and he had provided proper reasons for finding that the appellant's explanation lacked detail and credibility. There was no error with regard to the exercise of discretion under paragraph 322(2) and, in any event, that had not formed part of the grounds leading to the grant of permission. Mr Karim reiterated his earlier submissions in response.

Consideration and Findings

8. I have to say that I am in agreement with Mr Duffy as to the reasons for the grant of permission in this case, which are not made clear in the decision of 12 December 2016. It seems to me that the grounds seeking permission to appeal to the Upper Tribunal consisted of little more than a criticism of the respondent producing further evidence at the hearing, a disagreement with the expert evidence relied on by the respondent and a disagreement with the judge's rejection of the appellant's explanation. As such, and given the development of the case law in ETS cases since the grounds were prepared, they have little arguable merit. It was perhaps for that reason that Mr Karim, whilst adopting those grounds, sought to challenge the judge's decision on other grounds, and the submissions he made, somewhat understandably, bore little resemblance to the actual grounds pleaded.

9. Mr Karim submitted that the judge at [4] misdirected himself in regard to the burden of proof in this case. However it is plain that the judge was simply setting out the general position in immigration appeals at that point. In subsequent paragraphs, particularly at [19], he demonstrated a full and clear understanding of the relevant "shifting" burden of proof, as set out in SM and Qadir, and he went on properly to apply that in the appellant's case. His consideration of the initial evidential burden being met by the respondent was entirely consistent with the guidance in SM and Qadir and Secretary of State for the Home Department v Shehzad & Anor [2016] EWCA Civ 615 and was unarguably open to him on the evidence before him which he identified and explained in some detail at [10] to [13].

10. Mr Karim submitted that the judge's reliance upon the appellant's ability in the English language at the hearing before him was a core aspect of his overall assessment of the appellant's evidence and was contrary to the guidance in SM and Qadir at [80] whereby the Tribunal expressed caution in making such assessments. However it is clear that the Tribunal at [80] was in fact referring to caution being exercised in making positive findings in favour of an appellant owing to an ability in English at the hearing, rather than the contrary as occurred in this appellant's case. In any event, I would agree with Mr Duffy's submission that the judge's comments in regard to the appellant's English language ability were not determinative but rather peripheral, and it is clear, furthermore, from those comments at the end of [20] that he exercised the caution suggested in SM and Qadir. I see no reason why the judge was not entitled to take the matter into account as part of an overall assessment of the appellant's evidence and I find no error on the part of the judge in that regard.

11. Neither do I find any error in the judge's findings at [24] as to the appellant's explanation lacking detail and credibility. Mr Karim submitted that the appellant had provided a detailed explanation, as recorded at [6] to [9] of the judge's decision, and that the judge had failed to make any clear findings on that explanation. However the judge plainly did consider the appellant's explanation and evidence and made full findings at [20], noting that the appellant could not recall the details of the test and was only able to say how many people might have been there in the room taking the test. The judge also gave careful consideration to the IELTS certificate produced by the appellant for a test taken in October 2014 and made findings on that at [20] and [23]. It was entirely open to the judge, for the reasons cogently given, to conclude that the explanation offered by the appellant was one that lacked detail and credibility. Again I find no merit in the grounds.

12. As to Mr Karim's submission on paragraph 322(2) and the absence of exercise of discretion by the respondent, that was an entirely new point not raised or even alluded to in the grounds before the First-tier Tribunal or the Upper Tribunal, and as such was not open to him to raise. However, I find no merit in the submission, in any event, as the refusal decision refers at page 2 to the respondent considering whether discretion should be exercised in the appellant's favour and concluding that it should not. There was therefore nothing for the judge to consider, particularly as there was no suggestion before him that the respondent had erred in such a respect.

13. For all of these reasons I find no merit in the grounds, either as originally put or in Mr Karim's submissions. Contrary to the assertions made on behalf of the appellant, Judge Nicholls decision is a careful and detailed one, demonstrating a clear understanding of the relevant legal tests and guidance and including a thorough assessment and analysis of all the evidence and cogently reasoned findings. The conclusions that he reached were entirely open to him on the evidence before him. There are no errors of law in his decision.

DECISION

14. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Signed
Upper Tribunal Judge Kebede Dated: