Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30219/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Determination & Reasons Promulgated
On 13th October 2016
On 23rd January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

MISS RUPINDER KAUR
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Azmi (Counsel)
For the Respondent: Mr Mills (HOPO)

DETERMINATION AND REASONS

1. The Appellant is a female, a citizen of India, who was born on 10th December 1988. She appealed to the First-tier Tribunal Judge against a decision of the Respondent dated 20th August 2015, refusing her application for further leave to remain in the UK as a Tier 4 (General) Student Migrant under the points-based system. The basis of the Respondent's decision was that the Appellant had submitted a TOEIC certificate from Educational Testing Service (ETS) to the Home Office. According to information provided to the Home Office by ETS she had obtained the TOEIC certificate as a result of a test that she took at Premier Language Training Centre on 21st August 2012, but the ETS has a record of the Appellant's speaking test and using voice verification software, ETS was able to detect that the Appellant had not sat this test.
2. The Appellant's appeal was heard by First-tier Tribunal Judge McDade on 9th December 2015. At paragraph 3 of the determination the judge stated as follows:
"I have carefully read the statements of Rebecca Collings and Peter Millington that pertain to the way in which fraudsters are identified by means of sophisticated voice biometrics technology. I am satisfied from the statements that such voice technology is reliable and that there are proper safeguards against there being more than a relatively small number of false positives. Therefore I appreciate that the Home Office ETS has not been specific in relation to the Appellant's wrongdoing realistically it cannot be anything other than using a proxy test taker as this was a test of spoken English."
3. The judge went on to conclude that, "I hold that the Home Office had a good and sufficient reason, namely evidence of fraud, such that it would have been inappropriate to allow the Appellant any flexibility by way of making further application" (paragraph 3).
4. The appeal was dismissed.
5. At the hearing before me on 13th October 2016, Mr Azmi, appearing as Counsel on behalf of the Appellant submitted that, whereas the judge could have regard to the evidence from ETS, in the form of witness statements of Peter Millington and Rebecca Collings, the fact was that the Appellant had furnished other evidence in her bundle, which simply was not referred to. This is important in one particular respect. The judge had gone on to say (at paragraph 3) that,
"Although not determinative I do raise my eyebrows at the Appellant's apparent improvement from the first test to his second, which was only three weeks apart. This score rose from 140 (160 being the pass mark) to 200. Although it is possible that this was because of the Appellant's further study in the interim I hold, in all the circumstances, that it was probable (to the higher standard of probability) that the test score was a result of the fact that the Appellant did not sit it at all" (paragraph 3).
6. Mr Azmi went on to say that the Appellant could not conclude that the probability here was that the Appellant did not sit the test at all, if he did not have regard to the Appellant's evidence, which evidence included the fact that the Appellant had passed the IELTS test from 2009 to 2012, had a bachelor's degree, and had a Diploma in Computer Engineering, such that it could not necessarily be said that the Appellant would not be able to secure a high mark three weeks later. The evidence had to be looked at.
7. For his part, Mr Mills submitted that the case of Qadir [2016] UKUT 229 only stood for the proposition that, by referring to the witness statements of Peter Millington and Rebecca Collings, the Home Office had discharged the evidential burden, and thereafter, it was up to the Appellant to demonstrate, on the basis of the legal burden, that she had sat the tests. In this case the Appellant had taken two ETS tests. In the first of these, she secured 140 out of 200, and then twenty days later she secured a far higher mark, and it was for the Appellant to explain how this was possible, if she had indeed sat both tests.
My Consideration of Appeal
8. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA [2007]) such that I should set aside the decision. What the judge had before him was generic evidence from the statements of Rebecca Collings and Peter Millington, whereby the judge had himself stated that, "I appreciate that the Home Office ETS has not been specific in relation to the Appellant's wrongdoing" (paragraph 3). I note that in the case of Shahzad [2016] EWCA Civ 615, the Court of Appeal stated that the evidence of Mr Millington and Miss Collings, "suffice to shift the evidential burden onto the person whose leave had been curtailed" and that "in that case, there was no submission that their evidence did not discharge the evidential burden lying on the Secretary of State at the initial stage." The threshold upon the Secretary of State for an evidential burden being one that was described as "comparatively modest threshold" (see paragraph 21). In this case, however, once the evidential burden had shifted, there was evidence, as Mr Azmi has submitted before me, for the judge to consider in relation to this particular Appellant. This evidence has not been referred to in the determination.
Re-making the Decision
9. I have re-made the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I note from the submissions today that Mr Mills reminds this Tribunal that the case of Qadir [2016] UKUT 229 is to be heard by the Court of Appeal next week. I also note that what was at stake in the Tribunal before was the evidence of the Appellant in relation to her claim that he had sat the test. It is important that this matter returns back to the First-tier Tribunal in accordance with Practice Statement 7.2(b) after the Court of Appeal has given its ruling in Qadir, so that it is determined by a judge other than Judge McDade, in the full light of all the evidence before the Tribunal.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I re-make the decision as follows. This appeal is remitted back to the First-tier Tribunal, to be decided by a judge other than Judge McDade.

No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 23rd January 2017