Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/27788/2015
IA/27793/2015, IA/27796/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th December 2016
On 18th January 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

the Secretary of State for the Home Department
Appellant
and

Mohammad [K]
Kazi [K]
[J A]
Claimants/Respondents

Representation:
For the Appellant: Ms Brocklesby-Weller, Home Office Presenting Officer
For the Claimants/Respondents: Mr S Bellara, Counsel instructed by Legend Solicitors

DECISION AND REASONS
1. The claimants are citizens of Bangladesh, being a married couple with their minor son. The first claimant is the primary party in this case. He seeks leave to remain as Tier 4 (General) Student Migrant with his family as dependants.
2. The first claimant arrived in the United Kingdom on 28th October 2009 upon a student visa and had his leave extended to 19th August 2014. His wife and son entered the United Kingdom in December 2010 and were granted leave in line with his.
3. A further application made was, however, refused on 20th July 2015, on the basis that the first claimant exercised deception in the obtaining of his TOEIC certificate which was submitted in the course of an earlier application. The refusal was made under paragraph 322(2) of the Immigration Rules. In addition, no CAS was submitted. That also was a discrete ground of refusal. The first claimant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge James on 14th April 2016. In effect the Judge found that deception had not been employed by the first claimant, such that paragraph 322(2) should not apply. It was also noted that the first claimant was unable to obtain a CAS without a permission letter from the respondent and none was forthcoming in this case. Such therefore raised the matter of fundamental fairness in refusing on that basis.
4. There was also an issue of financial support, but the bank statements have not been examined by the respondent.
5. Overall it was the finding of the Judge that the appeal should be allowed on the basis that the decision was not in accordance with the law. In effect a fresh decision was called for.
6. The Secretary of State sought to challenge that finding, particularly contending that the wrong standard and burden of proof had been applied to the issue of deception. It was on that basis that leave to appeal to the Upper Tribunal was granted.
7. The burden of the challenge lies in the way in which the judge has approached the decision in Qadir v The Secretary of State for the Home Department (ETS evidence - burden of proof) [2016] UKUT 00229 (IAC).
8. Comment is made in paragraph 19 of the determination that the onus is on the respondent to prove its allegations and that the Qadir case had shown the frailty of the evidence relied upon, there being little more than assertion.
9. That of course is not what was found in that decision. Although the merits of the evidence, as presented at the hearing of Qadir, was deemed to be insufficient for the purposes of the substantive appeal, it was made entirely clear in that decision that the Secretary of State's generic evidence, combined with her evidence particular to the two appellants, would generally suffice to discharge the evidential burden of proving that the TOEIC certificates had been procured by dishonesty. However, in the light of the actual evidence that was adduced at the hearing, the Secretary of State failed to discharge the legal burden of proving dishonesty on the part of the appellants in that case.
10. It was made clear in the case of MA (ETS - TOEIC testing) [2016] UKUT 450 (IAC), that the question as to whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification was intrinsically fact-sensitive. The Tribunal in MA drew attention to the shifting burden of proof as set out in paragraphs 57 to 58 of Qadir.
11. At the end of the day the Secretary of State bears the overall burden of proof in showing that deception was used to obtain the English language certificate. If the evidence is of sufficient cogency then the evidential burden of disproving that evidence may fall upon the claimant but the overall burden remains upon the Secretary of State.
12. In the case of MA the Tribunal found the explanation offered by the appellant to be a fabrication.
13. The Judge at paragraph 19 of the determination, has made reference to the frailties of the evidence. The distinction of course to be made between MA and this case is that in MA other evidence was adduced, particularly expert evidence which is not particularly relied upon in this case. Nevertheless, it is to be perceived that the generic evidence which is generally relied upon is of such a nature as to call for some explanation from the appellant.
14. The Tribunal in MA emphasised in particular the importance of considering factors that are presented on behalf of the appellant with some care. For example, that an appellant was able to speak and write English at the time of the examination does not necessarily dispose of the matter that he or she attended to take the examination. Other reasons might have arisen why someone else would have taken the test for them, as for example pressure of work or shortage of time or simply convenience. Decision makers were cautioned against simply accepting, without more clarification or a contextual examination, the simple statement that the applicant took the exam.
15. In this particular case there was the evidence of the claimant before the judge that he had indeed taken the test, he was well-versed in English and therefore did not need to employ deception. Reliance was also placed upon the fact that he had taken an MBA in his home country, taught in the medium of English prior to entry. It was of course entirely a matter for the judge, having heard the explanation, as to whether it was accepted, to the extent that the evidential burden upon the claimant had been discharged and accordingly that the respondent failed overall in her underlying burden to show deception on the balance of probabilities.
16. Mr Bellara, who represents the claimant, reminds me to have regard to the determination as a whole in the light of paragraphs 15, 16, 17 to 19 of the determination. It was entirely clear that, whatever the subtleties of a shifting burden of proof might be, the Judge was accepting the evidence of the claimant as evidence of truth, with the MBA perhaps weighing heavily in that favourable regard. He submits that even were it to be the case that the evidential burden was wrongly set out, nevertheless even had that burden been properly shown and balanced, the outcome would have been the same. He reminded himself clearly of the directions in Qadir could nevertheless have found in favour of the appellant upon the evidence as presented due to a careful consideration as to whether it is sufficient to discharge the burden.
17. In MA regard was had to the nature of the tests themselves, the questioning of the appellant in that case and the degree of analysis of what the appellant had to say was extensive. The court in MA indicated that they had heard and observed the appellant during some two-and-half-hours and scrutinised in particular response times, hesitations, spontaneity and engagement with the Tribunal generally. In that assessment the appellant's credibility differed radically from the First-tier Tribunal.
18. In granting leave to appeal Upper Tribunal Judge Macleman, in his decision of 16th November 2016, raises the issue as to whether the first claimant's ability to speak English and his emphatic denial are adequate reasons for finding in his favour, particularly in the light of the comments made in MA. An additional factor in this case was the taking of the MBA qualification. The challenge by the Secretary of State in this case is, however, not so much on the inadequacy of reasoning, but on the incorrect application of the standard and burden of proof and perhaps the undue dismissal of the evidence relied upon by the Secretary of State. It seems to me that the Judge was entitled, upon the nature of the evidence as then presented, to come to that conclusion made. It is clear that the Judge would have arrived at that conclusion, even had the correct balance been applied. In those circumstances I would not seek to interfere with the findings or interfere with the decision that is made, namely that the appeal is allowed on the basis that the decision was not one that can be lawfully maintained. There are issues in relation to the fairness of the CAS and of the consideration of the bank statements to which no particular findings have been made.
19. Clearly, although the Secretary of State must give due regard to the findings of the judge as to 322(2), such does not preclude relying on further or more particularised evidence in due course.
20. In the circumstances the appeal by the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge shall stand, namely that the appeal be allowed on the limited basis that it is defective by reason of error of law.
21. No anonymity direction is made.

Signed Date 16 Jan 2017

Upper Tribunal Judge King TD