Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/30428/2014
IA/30430/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th September 2016
On 23rd September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DUNANJALI CHATHURIKA RAMAWICKRAMA (fIRST Respondent)
PRASANA KUMARA GAMAGE (sECOND Respondent)
(ANONYMITY DIRECTION not made)
Respondents

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondents: Mr A Jafar, Counsel instructed by Liyon Legal Ltd.

DECISION AND REASONS
1. The Respondents and each of them are citizens of Sri Lanka whose dates of birth are recorded as 12th January 1990 and 28th September 1987 respectively. The Respondents are partners. This matter really concerns the First Respondent, the Second Respondent's case was entirely dependent upon the outcome of the appeal in the First-tier Tribunal of the First Respondent.
2. Application had been made by the First Respondent for leave to remain in the United Kingdom as a Tier 2 (General) Worker. Leave was granted on 6 December 2013 until 14 December 2016 but on 31st July 2014 the leave was cancelled. This was followed by a decision dated 24th October 2014 explaining why. There was an appeal in the First-tier Tribunal heard by Judge of the First-tier Tribunal Thomas, sitting at Newport on 8th January 2015. In issue was whether the First Respondent had used a proxy when sitting an English language test. It was the Secretary of State's case that that was what had occurred. The Secretary of State relied on witness statements from Rebecca Collings, a Home Office employee whose witness statement was dated 23rd June 2014 and Peter Millington, Assistant Director and employee of the Home Office of the same date. There was evidence before the First-tier Tribunal as to the method of detection used by the Secretary of State in determining whether or not a proxy had been used. The First Respondent however asserted that he had actually taken the test. That was the issue to be resolved. The judge found in the Respondents' favour.
3. Not content with the Decisions, by Notice dated 5th February 2016 the Secretary of State made application for permission to appeal to the Upper Tribunal. That permission was initially refused but in a renewed application dated 19th July 2016 permission was granted by Upper Tribunal Judge Keki?, thus the matter comes before me.
4. Mr Whitwell for the Secretary of State submits that the judge erred in the application of the appropriate burdens which applied in this case. It was Mr Whitwell's submission that in reliance on SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC) and on the case of Shehzad [2016] EWCA Civ 615 there was an evidential burden on the Secretary of State and that that burden had been met, the standard of proof being balance of probabilities and that the judge ought to have approached the case sequentially by looking to the evidential burden that was upon the Secretary of State and then, and only if the burden of proof had been discharged, look to the Respondent to establish whether or not there had been a sufficient explanation, and then, dependent upon the findings made, look to the legal burden which would shift back to the Secretary of State. The complaint made in this case is that the judge erred in two ways. Firstly, by simply placing the burden of proof on the Secretary of State without more, and by placing too high a standard of proof on the Secretary of State.
Was there an error of law?
5. It is clear that the judge did not set out his reasoning in the sequential way contended for by Mr Whitwell but it is perfectly clear from reading the decision as a whole that the judge looked at the evidence upon which the Secretary of State relied and the judge then clearly set against that evidence, the evidence of the Respondent and explained why in his/her view there was sufficient evidence from the First Respondent for him, the judge, to be satisfied that this particular Respondent (because these cases are fact sensitive) had taken the test.
6. Questions were put to the Respondent at the hearing and the judge carefully considered the answers given coming to the view that the evidence taken as a whole was sufficient to satisfy him/her that the witness was honest. The judge finished with the burden being upon the Respondent which was correct because that is where the legal burden lay. In paragraph 42 the judge states, "the Respondent has asserted dishonesty, a serious allegation; the burden is on the Respondent to prove it".
7. The complaint which the Secretary of State makes is that the standard of proof which was applied was too high. The judge does say at paragraph 42:
"As stated in R(N) - v - Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, 'the more serious the allegation, or its consequences then the stronger the evidence must be before the court to support that the allegation has been proved on the balance of probabilities'."
What the judge says at paragraph 42 follows a very careful analysis by the judge of some of the authorities that deal with the standard of proof applicable. It is clear that since the case of Re B (Children) [2008] UKHL 35 there is one standard the civil standard (though I observe in passing that in fact on the same day, albeit in a criminal case, the House of Lords appeared to recognise a "variable" standard: R v Davies (Appellant) (On appeal from the Court of Appeal (Criminal Division)) [2008] UKHL 36, para 60. Even that case, however, would not help the Secretary of State because it goes to the cogency of the evidence which is the point in his case. In my judgment, what the judge was clearly pointing to when making any observations about the standard of proof was that the evidence needed to be more cogent the more serious the allegation. That does not change the standard of proof. It goes to the quality of the evidence which is different. In my view therefore this is a case in which the judge did not materially err even if there was an error in not sequentially setting out the standard and burden as they fell respectively upon the Respondent, then the Appellant and then the Respondent in the First-tier Tribunal.
8. I make this observation as I have already done, these cases are fact sensitive. Each case turns on its own facts. It may be that had the Secretary of State had more evidence available to place before the judge then the judge would have come to a different view in this case. I am concerned however only with the evidence that was before this judge in this appeal in the First-tier Tribunal. If of course on some future occasion some further application is made by the Respondents to this appeal in which the evidence which the Secretary of State may have is material then of course it will be a matter for consideration at that time but I am not concerned with it. In the circumstances the appeal to the Upper Tribunal by the Secretary of State is dismissed and the decision of the First-tier Tribunal is affirmed.

Notice of Decision
The appeal is to the Upper Tribunal is dismissed.

Signed Date

Deputy Upper Tribunal Judge Zucker