Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28422/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 February 2017
On 9 February 2017

Before

Upper Tribunal Judge Southern

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD JAFFAR ULLAH

Respondent

Representation:

For the Appellant: Mr T. Melvin, Senior Home Office Presenting Officer,
For the Respondent: Mr A. Rahman, of JKR Solicitors

DECISION

1. Mr Ullah's application for further leave to remain as a student was refused by the Secretary of State for the Home Department ("SSHD") by a decision made on 30 July 2015. That was because the SSHD had been notified by Educational Testing Service ("ETS") that the Language test certificate previously submitted by Mr Ullah had been obtained by deception:

"ETS has a record of your speaking test. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. 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. ETS have declared your test to be "Invalid" due to the aforementioned presence of a proxy tester who sat the test in your place, and the scores have therefore been cancelled by ETS."

2. Because of this, the application was refused under paragraph 322(1A) of the Immigration rules.

3. Mr Ullah's appeal came before First-tier Tribunal Judge Stewart on 23 June 2016. Before the judge Mr Ullah was represented by Mr Rahman, who appeared also before the Upper Tribunal today. The SSHD was not represented before the First-tier Tribunal. This was particularly unfortunate because there was no copy of the SSHD's bundle on the Tribunal's file.

4. The submission advanced by Mr Rahman, founded to a large extent upon SM & Qadir v SSHD (ETS-Evidence-Burden of Proof) [2016] UKUT 00229, was summarised by the judge as follows:

"? for the respondent to satisfy the tribunal that he has discharged the burden of proof on him to the balance of probabilities, he would need to furnish evidence of sufficient strength and quality for the tribunal to subject it to a "critical", "anxious" and "heightened" scrutiny."

5. At paragraph 10 of his judgment Judge Stewart said this:

"I have been informed by Mr Rahman on whom the Respondent's bundle in this case had been served (but without one being made available for me, an omission perhaps which could have been addressed by a Home Office Presenting Officer were one to have been present), that such generic evidence in the form of statements from the same two witnesses were included in that bundle. However, with no Presenting Officer, no evidence from either of those two witnesses (or, indeed, any other) was presented."

The judge then referred briefly to a witness statement made by Mr Ullah in which he denied having used deception and said that he had taken the test himself, pointing out also that he had no need to employ a proxy test taker because, Mr Ullah said, his English was sufficiently good. The judge appears to have accepted that to be the case although he did not hear oral evidence from Mr Ullah. The judge concluded, at paragraph 14 of his brief judgment:

"In the circumstances, there is no evidence before me that would allow me to conclude that the appellant's certificate had been fraudulently obtained by the use of a proxy test taker. Given the burden of proof in respect of such an allegation is on the Secretary of State, I must allow the appeal."

6. In granting the SSHD's application for permission to appeal, Upper Tribunal Judge Blumb said of the SSHD's bundle:

"? It is likely that this bundle was in the possession of the Appellant's representative at the hearing. The bundle contained the generic witness statements of Ms Collings and Mr Millington and, according to the Grounds, an ETS spreadsheet confirming the Appellant's "invalid" test result. Although the Respondent did not serve the bundle on the First-tier Tribunal and did not field a Presenting Officer it is arguable that the judge should nevertheless have considered the evidence contained in the Respondent's bundle if it was actually available at the hearing."

7. At the beginning of the hearing this morning before the Upper Tribunal Mr Rahman helpfully explained what had actually happened at the hearing before the First-tier Tribunal. Not only was he in possession of the SSHD's bundle, he confirmed that he told the judge what was in it and then handed it to the judge who looked through it, although Mr Rahman said that the judge declined to have a copy made for him to retain and so it was handed back to Mr Rahman.

8. It can be seen from this that the judge was, or should have been aware that the evidence relied upon by the SSHD was not limited to "generic" evidence but included evidence specifically related to Mr Ullah's test, which had been considered specifically and declared to be invalid. Thus, the description provided by the judge, at paragraph 10 of his judgment, did not accurately describe the content of the SSHD's bundle and what was omitted was, perhaps, the most cogent and important aspect of the SSHD's case.

9. That is itself be a sufficient basis to establish material legal error by the judge although Mr Rahman advanced a basis of argument which he submitted would allow the decision of the judge to survive that oversight by the judge. Mr Rahman submits that the basis of the judge's decision is not that there was no evidence at all before him to support the allegation of deception but, as he said at paragraph 14 of his judgment:

"? no evidence before me that would allow me to conclude that the appellant's certificate had been fraudulently obtained?"

Thus, according to Mr Rahman, the judge had accepted that the evidential burden had been discharged by the SSHD but that when the evidence overall had been considered he was entitled to conclude that Mr Rahman had not used deception in securing his test result.

10. The difficulty with that submission is that the judge plainly did not consider the evidence overall. That submission leaves out of account that the judge has made no reference at all to the specific evidence relating to Mr Ullah's test that recorded that it had been declared to be invalid. The evidence pointing the other way was a brief witness statement from Mr Ullah in which he said he had sat the test himself but which provides no detail at all about what was involved in so doing. As I have observed, the judge did not receive oral evidence from Mr Ullah.

11. In short, it was a material error of law for the judge to determine the appeal without having proper regard to the key aspects of the case of one of the parties to the appeal and to proceed on the basis of a mistake of fact as to the content of the SSHD's bundle which was available to him because Mr Rahman acted with the impeccable fairness to be expected of those who appear before the Tribunal. Because of that, it simply cannot be assumed that the outcome would have been the same had the judge had proper regard to the evidence before him. Therefore, the decision of the judge must be set aside in its entirety and the appeal determined afresh by a different judge of the First-tier Tribunal.

Summary of decision:

12. The Judge of the First-tier Tribunal made a material error of law and his decision is set aside in its entirety.

13. The appeal to the Upper Tribunal is allowed to the extent that the appeal is remitted to the First-tier Tribunal to be determined afresh.

Signed

Upper Tribunal Judge Southern

Date: 7 February 2017