Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30021/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Determination Promulgated
On 16 January 2017
On 18 January 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

RAHUL NAIR
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr S Bellara, Counsel
For the respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. In a decision dated 2 August 2016 the First-tier Tribunal dismissed the appellant's appeal against a decision dated 21 August 2015 refusing his application for further leave to remain as a student. An appeal was lodged based upon wide-ranging matters but including Article 8 of the ECHR. At the hearing before the First-tier Tribunal the appellant conceded that the Immigration Rules could not be met because he did not have a valid CAS. The First-tier Tribunal however accepted the invitation to nonetheless consider whether or not the appellant used deception during the course of the application by providing a false ETS result (para 2).
2. At the beginning of the hearing Mr Bellana clarified that he did not wish to rely upon the grounds of appeal as drafted. He accepted that the respondent had displaced the evidential burden of proof initially upon her and the First-tier Tribunal was entitled to consider whether or not the appellant was able to provide a plausible and innocent explanation. Mr Bellana focused in particular upon the First-tier Tribunal's failure to give adequate reasons to support its conclusion that the appellant's use of English at the hearing was at a 'poor level' (para 26). The First-tier Tribunal explicitly took this "as an indicator as whether he would need a proxy to take his test" and found his "poor grasp of English" at the hearing to be "further indicative of the fact that the appellant needed a proxy test taker". Mr Singh accepted that this finding is not adequately reasoned. It is not reasoned at all. The conclusion rests uncomfortably with the detailed recital of the appellant's evidence at the hearing (paras 12-17). At no point in the summary of this evidence did the First-tier Tribunal identify any difficulties in understanding what the appellant was saying. The summary of the appellant's evidence prima facie indicates that he was able to provide detailed evidence in a sufficiently clear manner.
3. Mr Singh submitted that the lack of reasoning is not material. He argued that the First-tier Tribunal should have focused upon deception at time of the test and not on ability to speak English at the date of hearing, which did not assist in determining the issue in dispute, namely deception at the test. He relied upon the First-tier Tribunal's other factual findings to support the conclusion that the appellant failed to offer a credible innocent explanation.
4. The difficulty with this submission is that it fails to take into account the Tribunal's observations in SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC) at [69] that in considering an allegation of dishonesty in this context relevant factors include inter alia what the person concerned had to gain from being dishonest and whether the Tribunal's assessment of English language proficiency is commensurate with TOIEC scores - see the Court of Appeal in Qadir v SSHD [2016] EWCA Civ 1167 at [18-25].
5. The First-tier Tribunal clearly considered the appellant's English abilities to be a relevant consideration and "further indicative of the fact" that he needed a proxy test taker, i.e. that he exercised deception. This demonstrates that the First-tier Tribunal's error was a material one and clearly influenced the outcome of the appeal.
6. Both representatives agreed that the decision should be remade by the First-tier Tribunal. I have had regard to para 7.2 of the relevant Senior President's Practice Statement and the nature and extent of the factual findings required in remaking the decision, and I have decided that this is an appropriate case to remit to the First-tier Tribunal.

Decision
7. The decision of the First-tier Tribunal involved the making of a material error of law. Its decision cannot stand and is set aside.
8. The appeal shall be remade by First-tier Tribunal de novo.

Directions
(1) The appeal shall be reheard de novo by the First-tier Tribunal sitting at Hatton Cross (TE: 1.5 hrs) on the first date available.
(2) Within 14 days of the sending of this decision the appellant shall file and serve a skeleton argument and witness statement, that take into account the relevant updated legal framework.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
17 January 2017