Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29718/2015

THE IMMIGRATION ACTS

Heard in Liverpool
Decision & Reasons Promulgated
On 17 January 2017
On 20 January 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR FAWAD KHALID
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Harrison, Senior Home Office Presenting Officer
For the Respondent: Mr Moksud, Legal Representative, International Immigration Advisory Services

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. I find that no particular issues arise on the facts of this case that give rise to the need for a direction. For this reason, no anonymity direction is made.

DECISION AND REASONS
Background
1. This is an appeal by the Secretary of State for the Home Department. For ease of reference, I refer below to the parties as they were in the First-Tier Tribunal albeit that the Secretary of State is technically the Appellant in this particular appeal.
2. The Appellant is a national of Pakistan. He initially came to the UK in 2009 as a Tier 4 student with leave to remain until 31 March 2011. His leave continued in that category (with some minor breaks in continuity) until 22 August 2014. On 21 August 2014, he applied for leave to remain as the spouse of a British citizen. His spouse has a child from a previous relationship.
3. The Respondent refused the application by decision dated 18 August 2015 and directed the Appellant's removal to Pakistan. She did so on the basis that the Appellant had exercised deception in a previous student application as he had produced an English language certificate which had been obtained by use of a proxy test taker. The test provider, Educational Testing Service ("ETS"), had, as a result cancelled the Appellant's results. This then is a so-called ETS case.
4. The Appellant's appeal was allowed by First-tier Tribunal Judge Ransley in a decision promulgated on 15 June 2016 ("the Decision"). The Respondent appeals the Decision on two grounds. The first and principal ground challenges the Judge's finding that the Respondent was unable to demonstrate that the Appellant had exercised deception.
5. The second concerns the Judge's finding in relation to the Appellant's private life. It is accepted in the grounds that the Judge's finding in relation to the Appellant's private (and family) life is dependent on the finding in relation to deception. Mr Harrison accepted in the course of his submissions that the Respondent has herself accepted that, but for the suitability requirements, the Appellant meets the Rules in relation to his family life as it is accepted that the relevant eligibility requirements are met and the Respondent accepts that EX.1 is satisfied because the Appellant's spouse has a child from a previous relationship. I am concerned therefore only with ground one.
6. Permission was granted on both grounds by First-tier Tribunal Judge Pedro on 10 October 2016. The matter comes before me to determine whether the Decision did involve the making of an error of law and if so either to re-make it or remit the appeal to the First-tier Tribunal for re-making.
Discussion
7. As I indicate at [3] above, the Respondent's decision turned on information received from ETS. ETS cancelled the Appellant's results on the basis that he had not himself sat the tests. There have been a substantial number of similar decisions made by the Respondent relying on information from ETS which in turn have led to a significant amount of litigation including a number of "lead cases" in this Tribunal. In those cases, the Tribunal has considered the generic evidence put forward by the Respondent as well as the evidence relating to each individual Appellant.
8. In this case, the Respondent relied on the generic evidence produced in all such cases namely witness statements given by two Home Office witnesses, Mr Peter Millington and Miss Rebecca Collings. The Respondent relied also on a report of Professor French, an expert who was instructed to respond to a report of an expert, Dr Harrison, who had made a number of criticisms of the methodology employed in these cases (and whose evidence has been considered by the Tribunal in SM and Qadir - see below). The final piece of evidence relied upon by the Respondent in this appeal is a witness statement of Lesley Singh, a senior caseworker employed by the Respondent, to whose statement are annexed the extracts from the Respondent's spreadsheet showing that the Appellant's results for his test taken at Manchester Trinity College on 6 February 2013 were questionable and that those taken at the same institution on 27 February 2013 were invalid.
9. The Respondent's grounds (on which Mr Harrison relied in his oral submissions) criticise the Judge for failing to engage with the evidence of Professor French, misdirecting herself as to the appropriate burden of proof in accordance with SM and Qadir v Secretary of State for the Home Department (ETS-Evidence-Burden of Proof) [2016] UKUT 0229 (IAC) ("SM and Qadir") and placing undue weight on the fact that the Appellant speaks English.
10. Mr Moksud pointed out that none of the witnesses nor the expert attended the appeal hearing to give evidence. The Judge was entitled to attach whatever weight she saw fit to the evidence, particularly in light of the fact that the evidence could not be tested. He accepted though that there was no substantive reference to or consideration of the report of Professor French nor indeed the statements of Mr Millington or Miss Collings. He submitted though that the Judge was entitled to describe that evidence as "generic"; it is not concerned with the Appellant's individual case. When I asked Mr Moksud how the Judge had dealt with that evidence put forward by the Respondent in relation to the Appellant's individual case namely the confirmation that the results were either questionable or invalid, he was constrained to accept that there was no mention of that other than a reference at [18] of the Decision to the production of Ms Singh's statement. There is no consideration of the substance of that statement or the annex. Mr Moksud repeated his submission however in relation to the weight to be given to the evidence, particularly where the witnesses did not give oral evidence.
11. In relation to the Judge's reliance on SM and Qadir, Mr Moksud submitted that the Judge's approach is in accordance with what is said in that case. The Respondent's challenge relates to what is said in the headnote at (i) which reads as follows:-
"The Secretary of State's generic evidence, combined with her evidence particular to these two appellants, sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty." [my emphasis]
12. The Judge at [19] of the Decision deals with the Respondent's evidence in light of SM and Qadir as follows:-
"I have given the documents in RB2 due consideration. I have regard to SM and Qadir. I am concerned that the evidence in RB2 is of a generic nature. In my view, the evidence in RB2 even taken cumulatively is insufficient to discharge the evidential burden on the respondent to substantiate the allegation that the appellant has fraudulently obtained the TOEIC certificate issued by ETS by means of using a proxy to undertake the test."
13. Mr Moksud submitted that the Judge's finding that the Respondent's evidence did not meet the evidential burden is consistent with the headnote in SM and Qadir as it depended upon there being some evidence at least as to the individual Appellant. However, that ignores the Judge's failure to give consideration to the evidence of Ms Singh and (linked to that) the Judge's finding that all of the Respondent's evidence is generic in nature. In fact, if one has regard to the evidence before the Tribunal in SM and Qadir, the evidence in relation to the individual Appellants was similarly confined to the evidence that the results were either questionable or invalid and an accompanying witness statement. I note also, having regard to [64] and [65] of SM and Qadir, that the Tribunal did not have the benefit of the report of Professor French addressing some of the deficiencies in the Respondent's "generic" evidence to which the Tribunal there alludes. If the Judge was relying only on SM and Qadir, therefore, in reaching her finding, it was incumbent on her to at least consider whether the report of Professor French made any difference.
14. I observe that, although the Court of Appeal's decision in Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615 was not handed down until after the Decision and my attention was not drawn to this case in the hearing before me, the Court of Appeal's judgment in those cases lends support to the Respondent's case here that the Judge has erred in law. In relation to the case of Mr Chowdhury, the Court, having referred to the evidence produced by the Respondent in his case (consisting of the Millington/Collings statements and the results of the "look up tool"), found that the Judge erred in finding that the Respondent had failed to meet the evidential burden. It did so for the following reasons:-
"[26] With regard to the decision of the Upper Tribunal, I accept Ms Giovannetti's submission that it is not possible to derive from the FtT's determination that, as the Deputy Upper Tribunal judge found, the FtT judge was "well aware of the straightforward ETS Lookup Tool document" that she stated showed Mr Chowdhury's test to be invalidated. This statement also shows that the Deputy Upper Tribunal judge misunderstood the nature of the evidence. Had she understood it properly, she would have had to deal with the failure of the FtT judge to treat the "ETS Lookup Tool" as evidence that Mr Chowdhury's test had been invalidated. The reason for the misunderstandings by the tribunals may be that the language used by Mr Millington and Ms Collings in their statements to explain a technical process is not altogether clear. But, whatever the reason, in these circumstances, in my judgment the in limine rejection of the Secretary of State's evidence as even sufficient to shift the evidential burden was an error of law."
[my emphasis]
I gratefully adopt that analysis which applies equally in this case.
15. For the above reasons, I am satisfied that the Decision discloses an error of law both in relation to the treatment of the evidence, in particular that of Professor French and Ms Singh, and that the Judge has made a finding which is at odds with what is said in SM and Qadir or has, at the very least, failed to provide reasons for departing from the finding there made.
16. I asked Mr Harrison whether it could be said that the error is not material in light of the positive credibility findings at [21] to [26] of the Decision. The Tribunal in SM and Qadir accepted that if an Appellant is able to discharge the evidential burden which switches to him, once the Respondent's evidence is accepted as meeting that burden on her, the Respondent's evidence does not meet the legal burden. Mr Harrison pointed out that the difficulty with the Decision, once it is accepted that the Judge has erred in her treatment of the Respondent's evidence, is that the Judge has started from the wrong position. She has discounted completely the evidence of the Respondent. That is therefore not taken into account in reaching her findings about the Appellant's credibility. I accept that submission.
17. For those reasons, I am satisfied that the Decision contains a material error of law. I therefore set aside the Decision.
18. Both parties agreed that if I found a material error of law, the appeal should be remitted to the First-tier Tribunal as credibility is at the heart of this appeal. No findings are preserved since the positive credibility findings are (wrongly) premised on the Respondent's evidence not establishing the necessary evidential burden.
DECISION
I am satisfied that the Decision contains a material error of law for the reasons given above. The decision of Judge Ransley promulgated on 15 June 2016 is set aside. I remit the appeal to the First-tier Tribunal for re-hearing before a Judge other than Judge Ransley. I do not preserve any findings.

Signed Date 19 January 2017

Upper Tribunal Judge Smith