Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27178/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 20 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR SOHAIL MANZOOR
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: None

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Meyler, promulgated on 16 June 2016. Permission to appeal was granted by First-Tier Tribunal Judge Adio on 12 October 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. The respondent was granted leave to enter the United Kingdom as a Tier 4 (General) migrant on 24 June 2012, valid until 19 November 2013. On 18 November 2013, the respondent sought further leave to remain in the United Kingdom as a Tier 4 (General) migrant under the points-based system. That application was refused on 14 July 2015.
4. In refusing the application, the Secretary of State noted that the respondent submitted with his application a TOEIC certificate from Educational Testing Service (ETS), obtained following a test taken on 25 September 2013 at Apex test centre. It was said that ETS undertook a check of this result; informed the Secretary of State that there was significant evidence to conclude it was fraudulently obtained by use of a proxy test taker and declared the test to be invalid. Owing to that information, the Secretary of State was satisfied that the certificate was fraudulently obtained; that a false document had been submitted in relation to the application and refused it under paragraph 322(1A) of the Immigration Rules. As the application was refused under one of the General Grounds for Refusal, the Secretary of State was further not satisfied that the requirements of paragraph 245ZX(a) had been met. An additional reason was provided for refusal, in that the proposed sponsor, Metro College of Management Sciences (MCMS) was not on the Tier 4 Sponsor Register when it was checked on 16 July 2015. Therefore, the respondent was not awarded the 30 points claimed for a valid confirmation of Acceptance for Studies (CAS). In addition, no points were awarded for maintenance owing to the lack of a valid CAS.
The hearing before the First-tier Tribunal
5. At the hearing before the First-tier Tribunal, the respondent did not attend and nor was he represented. He wrote to the Tribunal, stating that he could not afford to pay peak-time rail fares. The hearing proceeded in the respondent's absence with oral submissions by the Home Office Presenting Officer. The Secretary of State sought to adduce an additional document at the hearing, namely an expert report of Professor Peter French dated 20 April 2016. The judge refused to admit that evidence because the respondent had not had an opportunity to consider it. The judge concluded that the Secretary of State had not made out the deception allegation and that she ought to have granted the respondent 60 days’ leave to remain to enable him to obtain a valid CAS.
The grounds of appeal
6. The grounds of appeal argued, firstly, that the judge erred in refusing to admit the expert’s report and in the alternative it was argued that the judge had not adequately addressed the judgment in SM and Ihsan Qadir v Secretary of State for the Home Department [2016] UKUT 229 (IAC) as to whether the Secretary of State had discharged the evidential burden.
7. Permission to appeal was granted on the basis sought.
8. The respondent’s Rule 24 response, dated 25 November 2016, drafted by Mr Nazir Ahmed of counsel argued that the judge made no error. It was further argued that the Secretary of State should clarify her position in view of the judgment in SSHD v Qadir [2016] EWCA Civ 1167 and withdraw the appeal.
9. The respondent sent a bundle of evidence which was received at Centre City Tower on 17 March 2017. The said bundle included a witness statement dated 14 March 2017, correspondence from Birmingham Solicitors Limited dated 28 November 2016 in which the firm puts itself on the record and the earlier Rule 24 response. In his witness statement, the respondent repeated the first 21 paragraphs from his earlier witness statement of 26 May 2015 which was before the First-tier tribunal; thereafter the respondent relied on Qadir supra and stated that he could not afford to pay a barrister to come to court and requested that his appeal be allowed to allow him to enrol in another college.
The hearing
10. The respondent did not attend the hearing and there was no communication from him on the day. In view of that, as well as the respondent's recent communication mentioning the forthcoming hearing before the Upper Tribunal along with his decision not to attend the previous hearing of his appeal, I decided there was no unfairness in proceeding with the hearing in the absence of the respondent.
11. Mr Mills had not received the respondent's bundle and briefly considered the new witness statement. He further relied on the grounds of appeal and submitted the following. He asked me to note that the respondent had chosen not to attend the hearing before the First-tier Tribunal. There was significant evidence that the respondent had not seen in the form of the expert opinion of Professor Peter French dated 20 April 2016. The previous judge could have adjourned the appeal and given the respondent another opportunity to attend; instead the judge refused to admit a report relied upon by the Secretary of State in every ETS case since 2016. The respondent opted for an oral hearing before the First-tier and opted not to attend. Mr Mills asked me to note that the respondent lived only in Redditch, which was not particularly far from Sheldon Court and that he had chosen not to attend today's hearing which was taking place at a location even closer to the respondent's home. This was a relevant matter because it had been made clear in Qadir that that an appellant's presence and performance during cross-examination is a key matter. The judge had been wrong to reject, out of hand, the report when the respondent had put himself in the position he was in and in any even an adjournment could have been granted.
12. Mr Mills further argued that aside from the treatment of the expert report, the judge erred because the respondent had already submitted the usual evidence in the form of the statements of Peter Millington, Rebecca Collings and the ETS spreadsheet showing that the respondent's tests had been invalidated. He relied on Secretary of State for the Home Department v Shehzad & Anor, [2016] EWCA Civ 615, stating that the aforementioned evidence sufficed to discharge the initial burden on the Secretary of State and thereafter it was for the respondent to raise a reasonable response. The previous judge did not follow this process. Mr Mills argued that in Qadir, the appellants were present and provided an explanation whereas in this case the respondent did not attend and did not give a reasonable explanation, other than a flat denial. On this evidence, he argued, the judge could only have dismissed the appeal.
13. Responding to the Rule 24 arguments, Mr Mills, submitted that the cases before the Court of Appeal in Qadir could be distinguished from the respondent's circumstances, because those were cases where the Secretary of State's evidence was inadequate. The evidence the Secretary of State sought to adduce now could not be adduced in the cases before the Court of Appeal.
Decision on error of law
14. After hearing from Mr Mills, I announced that I found a material error of law in relation to the second ground, in particular. I will briefly give my reasons below.
15. The principle that the ETS evidence showing the invalid test analysis is sufficient to discharge the evidential burden facing the Secretary of State before making an allegation of dishonesty was re-affirmed in the decision of Shehzad. The judge took a different view and erred in doing so. In particular, the judge erred in describing the evidence before him as generic and failing to refer to "the specific case before" him. The evidence which was submitted in advance of the hearing, was in the form of the ETS spreadsheet which named the respondent and provided details of the tests he purported to have taken which corresponded with the certificates he obtained. Furthermore, the Secretary of State's evidence included the ETS TOEIC Test Centre Lookup Tool extract showing that on the date the respondent states that he took his test, 59% percent of tests were invalided and the remaining 41% were thought to be questionable. There was no assessment of this evidence by the judge. Furthermore, the judge failed to consider the fact that the respondent avoided being cross-examined on the circumstances in which the test was taken, by electing not to attend the hearing. In addition, the respondent's witness statement consisted of a bare denial of deception and lacked supporting evidence or detail. The evidence produced by the respondent was not therefore capable of amounting to a reasonable response to the evidence adduced by the Secretary of State, even in the absence of Professor French's report. For those reasons, the judge's decision is set aside in its entirety.
Remaking
16. I proceeded to remake the appeal, in view of point 4 of the standard directions which accompanied the notice of appeal, to the effect that there is a presumption that this will take place at the error of law hearing. I have taken into consideration the respondent's claims that he cannot afford to brief counsel, however he has not explained, anew, why he could not have attended in person. On the assumption that the respondent is once more claiming penury, I take note of his ability to instruct solicitors, who in turn instructed counsel to respond to the grant of permission. Furthermore, the respondent states that if ultimately successful he will find another college. It is hard to see how he could contemplate doing so if he is so short of funds. In these circumstances, I did not accept that the respondent could not afford to travel the short distance from Redditch to the centre of Birmingham and concluded that he had elected not to attend.
17. Mr Mills submitted the report of Professor French and indicated that he would be relying on the outcome of all the tests at Apex. Essentially, Mr Mills asked me to note the 59% of the tests taken on the same day as the respondent's tests were invalid and this strongly suggested deception, with proxies being used on that day. He said that the Millington and Collings witness statements showed the process undergone, in that there was a software process which, was followed by two human processors. Given the civil standard of proof, this was enough to discharge the burden of proof. Professor French's report said that the software had sufficient safeguards, that there would be less than a 1% chance of false positives and this, Mr Mills argued, was enough to discharge the burden. He further relied on MA(ETS – TOEIC testing)[2016] UKUT 00450(IAC), where there was a greater depth of evidence and it was held that the full burden was discharged, with the appeals dismissed.
18. At the end of the hearing I announced that I was remaking the appeal by dismissing it. My reasons follow.
19. As indicated above, the evidence relied upon by the Secretary of State, even in the absence of Professor French's report, discharged the initial evidential burden of establishing that the respondent procured his TOEIC certificate by deception.
20. The report of Professor French only fortifies these findings, given his unchallenged conclusion that there were "stringent criteria” for verification (of the automatic speaker recognition) by the trained listeners and that he estimated the rate of false positives to be less than 1 %.
21. The respondent has avoided cross-examination on two occasions and his witness statements are devoid of credible detail. He simply denies deception and suggests that he has no need to employ it. That bare denial does not amount to raising an innocent explanation and the ostensible lack of a motive for using a proxy are not a matter for me. Accordingly, the evidence and statements relied upon by the respondent do not even begin to shift the burden of proof back to the Secretary of State. I am therefore satisfied that the respondent used deception, by using a proxy. I am further satisfied that owing to the use of deception, the Secretary of State was not required to grant the respondent 60 days’ additional leave because his sponsor was no longer on the Tier 4 register at the time of the decision to refuse further leave to remain.

Conclusions
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision to be re-made.
I substitute a decision dismissing the appeal on the basis that the respondent used deception in an application for further leave to remain.
No application for anonymity was made and I saw no reason to make such a direction.

Signed
Date: 22 March 2017

Upper Tribunal Judge Kamara

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed
Date: 22 March 2017

Upper Tribunal Judge Kamara