Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30462/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 February 2017

On 14 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

SAHIL PASRICHA
(ANONYMITY DIRECTION NOT made)

Respondent

Representation

For the Appellant: Mr J. Parkinson, Home Office Presenting Officer
For the Respondent: Mr A. Alarayn, instructed by Shri Venkateshwara Solicitors

DECISION AND REASONS

1. The respondent is a citizen of India born on 4 February 1991. He entered the UK in September 2009 as a student with leave until 30 September 2012. On 18 September 2012 he applied for and was granted further leave as a student until 20 April 2014.

2. On 19 April 2014 the respondent applied for further leave as a student. On 26 August 2015 the Secretary of State rejected his application under Paragraph 322(2) of the Immigration Rules. Educational Testing Service ("ETS") had undertaken a check of the respondent's speaking test that had been submitted with his earlier application on 18 September 2012 and concluded that it was fraudulently obtained by a proxy test taker. The test was declared invalid and his scores cancelled. The application was also refused on the basis that a valid Confirmation of Acceptance ("CAS") was not submitted because the sponsoring college was no longer listed as a Tier 4 sponsor.

3. The respondent appealed. His appeal was considered (at his request) without an oral hearing by First-tier Tribunal ("FtT") Judge Eldridge.

4. The judge allowed the appeal for two reasons. Firstly, he found that the decision by the Secretary of State was unlawful because the respondent had not been given a sixty day notice period to obtain a new CAS. Secondly, the judge found that the Secretary of State had failed to discharge the burden of proof which required her to demonstrate through clear and credible evidence a link between the respondent and the allegation against him.

5. The Secretary of State appealed. The grounds of appeal argue that the judge materially erred by failing to appreciate that the Secretary of State had met the evidential burden such that the evidential burden shifted to the respondent to give an innocent explanation. Before me, Mr Parkinson reiterated the arguments that are set out succinctly in the grounds.

6. Mr Alarayn, on behalf of the respondent, argued that the evidence in SM and Qadir [2016] UKUT 00229 (IAC) that the Upper Tribunal found to "narrowly discharge" the Secretary of State's evidential burden was greater than the evidence before the FtT in this case. He submitted that if that, more expansive, body of evidence only "narrowly" discharged the burden, then it was open to the judge to find that the evidence before him in this appeal did not meet the burden.

7. In the alternative, he argued that if the evidential burden shifted to the respondent to show an innocent explanation, the respondent, through his witness statement, had provided the innocent explanation.

8. In SSHD v Shehzad [2016] EWCA Civ 615, the Court of Appeal addressed the question of how the initial evidential burden of proof applies in cases where an allegation of fraudulent conduct is made against a person who took an ETS test which has been found to be invalid.

9. In Shehzad, the evidence relied upon by the Secretary of State was similar to that which was before the FtT in this case, consisting of generic witness statements from Mr Millington and Ms Collins, and a screen shot showing the test was deemed to be invalid. The Court of Appeal concluded that this evidence was sufficient to shift the evidential burden and that the Tribunal's finding to the contrary was an error of law.

10. Mr Alarayn argued that in Qadir the Upper Tribunal had before it a wider body of evidence. However in the Court of Appeal decision in Qadir v SSHD [2016] EWCA Civ 1167 it was made clear that the question of whether the Secretary of State's generic evidence satisfies the initial evidential burden was settled in Shehzad.

11. The judge in this appeal made a material error of law by failing to recognise that the Secretary of State's generic evidence was sufficient to shift the evidential burden such that it fell to the respondent to provide a plausible innocent explanation whereupon the burden would shift back to the Secretary of State.

12. I advised the parties that I found there to be a material error of law and invited Mr Alarayn to make the case, on behalf of the respondent, for there being an innocent explanation. I noted that no further evidence had been submitted in advance of the hearing and asked if he proposed to introduce any. After taking instructions from his client, Mr Alaryan informed me that he did not have any further evidence to adduce and requested an adjournment. Mr Parkinson's response was that the directions make clear that parties should be ready to proceed.

13. I am not prepared to adjourn the hearing. The respondent is represented and his representatives should have been ready for the appeal to be remade. That, at the rehearing of the appeal, it would fall on the respondent to raise an innocent explanation is clear from the case law and from the Secretary of State's grounds, which state that "the evidential burden fell upon the [respondent] to offer an innocent explanation".

14. I asked Mr Alaryan to draw my attention to any evidence to support an innocent explanation and make submissions on the issue. He identified:

a. Paragraph 8(iii) of the respondent's witness statement dated 14 June 2016 which states "I humbly submit that I have never used any proxy in my ETS/TOEC Exam, as such the SSHD is required to prove the allegation with strict proof and documentary evidence."

b. The TOEIC Speaking and writing test official score report which has a photograph of the respondent on the top left of the page and his scores for speaking and writing on the top left.

15. The evidence before me (which is also the evidence that was before the FtT) falls short, by a substantial degree, of giving a plausible innocent explanation. The respondent has done no more than state he did not use a proxy. His statement does not address any factors that would be relevant to determining if there is a plausible innocent explanation, such as, for example, his command of English and academic achievements, his familiarity with the test centre and procedure, what he has to lose from being dishonest and what is known about his character. A copy of the test scores and his photograph tells me nothing relevant to whether there is an innocent explanation.

16. Following Shehzad and Qadir, there is an evidential burden on the respondent to provide a plausible innocent explanation of the prima facie indication of deception that was made against him. As he has not satisfied this burden he is unable to succeed in the appeal.

17. The respondent, in his appeal to the FtT, argued that his removal from the UK would be contrary to Article 8 ECHR and that the Secretary of State had not considered his rights under "human rights law, EEA law, international covenants and principles of natural justice". There was no evidence before the FtT, and no submissions were made to me, that would support a finding that the respondent is able to satisfy the Immigration Rules in respect of private or family life or that there are compelling reasons to allow his appeal outside the Rules. Nor were any submissions made, or evidence adduced, to support a claim that leave to remain should be granted to the respondent as a consequence of EEA law or international covenants. Accordingly, the respondent's appeal outside the Immigration Rules cannot succeed.

Decision
A. The decision of the First-tier Tribunal contains a material error of law and is set aside.
B. I remake the decision by dismissing the appeal.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 13 February 2017