Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26975/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision and Reasons Promulgated
On 26 January 2017
On 02 February 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Secretary of State for the Home Department
Appellant
and

Arslan Abdullah
[No anonymity direction made]
Respondent

Representation:
For the claimant: Mr R Khan, instructed by Khiri Solicitors
For the appellant: Mr D Mills, 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 Barber promulgated 21.12.15, allowing the claimant's appeal against the decision of the Secretary of State, dated 14.7.15, to refuse his application made on 5.6.14 for leave to remain in the UK as a Tier 4 Student Migrant, and to remove him from the UK pursuant to section 47 of the Nationality, Immigration and Asylum Act 2006.
2. The Judge heard the appeal on 1.12.15.
3. First-tier Tribunal Judge Pedro granted permission to appeal on 18.5.16.
4. Thus the matter came before me on 26.1.17 as an appeal in the Upper Tribunal.
Error of Law
5. For the reasons summarised below I found such error of law in the making of the decision of the First-tier Tribunal as to require the decision of Judge Barber to be set aside.
6. The claimant's application was refused because in an earlier application made on 15.8.12 he applied for leave to remain in the same category, and submitted a TOEIC English language certificate from ETS to his educational sponsor, so they would issue him with the necessary CAS.
7. As in many other similar cases, ETS concluded that the certificate had been fraudulently obtained using a proxy test taker. Reliance was made on the now familiar generic evidence.
8. Judge Barber noted that the claimant appeared to have a good command of English at the appeal hearing in December 2015. At [10] the judge considered the generic statements in relation to voice recognition software and stated, "I find that I cannot place a great deal of reliance on that evidence, as supporting the veracity of the documents purporting to show that the appellant did not take the test. This is because that evidence is only generic in nature and does not deal with the specific details of the appellant's test." In consequence, the judge concluded at [11] that he could not be satisfied that the claimant obtained the certificate by fraud, and thus allowed the appeal.
9. The grounds of appeal assert that the judge failed to give adequate reasons for findings on material matters, particularly for rejecting the Secretary of State's generic evidence. Reliance is placed on SM and Qadir (ETS - evidence - Burden of Proof) [2016] UKUT 229 (IAC), which held that the generic evidence in combination with the evidence particular to the appellants in that case, sufficed to discharge the evidential burden of proving dishonesty, on which the burden switches to the appellants, though the legal burden remains on the Secretary of State.
10. That decision was promulgated on 21.4.16, after Judge Barber's decision promulgated on 21.12.15 and he could not know of the outcome of this important case. However, as the law now stands it follows that there is an error of law in the decision of the First-tier Tribunal in failing to consider the evidential burden and in rejecting outright, and without cogent reason, the generic evidence.
11. Further, it is clear in the present case that the Secretary of State not only relied on the generic evidence but evidence specific to the claimant in this appeal. This is primarily the print out linking the claimant's identity to the test centre, date of test, and impugned certificate, as noted by the judge at [3] of the decision. It follows that the judge was factually wrong to state at [10] that the evidence did not relate to this claimant.
12. For the claimant Mr Khan accepted that the decision was made in error of law and cannot stand, which I agree, for the reasons stated. The decision must be set aside and remade.
13. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. Both sides intend to rely on further expert evidence and it was not possible to rehear the appeal immediately.
14. Where the facts are unclear on a crucial issue at the heart of an appeal, as they are in this case, effectively there has not been a valid determination of those issues. The errors of the First-tier Tribunal Judge vitiates all other findings of fact and the conclusions from those facts so that there has not been a valid determination of the issues in the appeal.
15. In all the circumstances, at the invitation and request of both parties to relist this appeal for a fresh hearing in the First-tier Tribunal, I do so on the basis that this is a case which falls squarely within the Senior President's Practice Statement at paragraph 7.2. The effect of the error has been to deprive the parties of a fair hearing and that the nature or extent of any judicial fact finding which is necessary for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 to deal with cases fairly and justly, including with the avoidance of delay, I find that it is appropriate to remit this appeal to the First-tier Tribunal to determine the appeal afresh.
Conclusions:
16. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the appeal to be decided afresh in the First-tier Tribunal in accordance with the attached directions.

Signed
Deputy Upper Tribunal Judge Pickup

Dated

Deputy Upper Tribunal Judge Pickup
Consequential Directions
17. The appeal is remitted to the First-tier Tribunal sitting at Birmingham;
18. The appeal is to be relisted at the first available date;
19. The appeal is to be decided afresh with no findings of fact preserved;
20. The ELH is 2 hours;
21. No interpreter is required;
22. The appeal may be listed before any First-tier Tribunal Judge, with the exception of Judge Barber;
23. The claimant is to ensure that all evidence to be relied on is contained within a single consolidated, indexed and paginated bundle of all objective and subjective material, together with any skeleton argument and copies of all case authorities to be relied on. The Tribunal will not accept materials submitted on the day of the forthcoming appeal hearing;
24. The First-tier Tribunal may give such further or alternative directions as are deemed appropriate.
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).
I make no fee award.
Reasons: The outcome of the appeal remains to be decided.

Signed
Deputy Upper Tribunal Judge Pickup

Dated