Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30506/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 December 2016
On 16 December 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

IFTIKHAR AHMAD KHAN
(anonymity direction not MADE)
Respondent

Representation:
For the Appellant: Mr Walker, Home Office Presenting Officer
For the Respondent: Ms S Iqbal, Counsel, instructed by M & K Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department (Appellant) against Judge of the First-tier Tribunal Ferguson's promulgated decision of 11 August 2016 allowing the Respondent's appeal, to a limited extent, against the Appellant's refusal, dated 26 August 2015, to grant him Further Leave to Remain (FLR) as a Tier 4 (General) Student.

Background

2. The Respondent is a national of Pakistan, date of birth 8 April 1983. He entered the United Kingdom in 2005 as a student and was subsequently granted further periods of LTR as a student and as a Tier 4 (General) Student. On 14 April 2014 the Respondent made an application for leave to remain in the UK as a Tier 4 (General) Student. In support of this application the Respondent provided a TOEIC certificate obtained from Educational Testing Service (ETS) and relating to a test undertaken at the Universal Training Centre in Watford on 10 December 2013. ETS had a record of his speaking test. The Reasons For Refusal Letter explained that, using voice recognition software, ETS undertook a check of his test and confirmed to the Appellant that there was 'significant evidence' to conclude that the Respondent's certificate had been fraudulently obtained by the use of a proxy test taker. ETS declared his test to be invalid. The Appellant was consequently satisfied that the English language certificate had been fraudulently obtained and the application was refused under paragraph 322 (1A) the immigration rules.

3. The application was additionally refused on the basis that the Respondent did not have a valid Confirmation of Acceptance for Studies (CAS) assigned to him by Cranford College. This was because the college was not on the Tier 4 sponsor register when checked on 26 August 2015. The Respondent could not therefore be awarded 30 points under Appendix A of the immigration rules.

The First-tier Tribunal decision

4. The judge heard oral evidence from the Respondent without an interpreter. The judge noted that the Respondent, since arriving in the UK, had not successfully completed a single course of study because the various colleges which had accepted him as a student was subsequently closed down or lost the licences. The Respondent had provided two TOEIC certificates and emphasise that he had attained low scores from the test taken on 10 December 2013. He had scored 140 speaking and 160 writing. He then re-sat the test on 14 January 2014 achieving 180 in speaking and 190 in writing. The judge heard evidence to the effect that the applicant was financially supported in the UK by his brother and father and that he had taken the TOEIC exam on 3 occasions (4th of December 2013, then 10 December 2013, then 14 January 2014). When asked why he had taken the exam in Watford rather than nearer to his home in Luton the Respondent said he had been informed by friends that there was a course at the Watford centre which was a Home Office test centre and it was his choice were to sit the test.

5. In submissions the Presenting Officer indicated that, if the invalid CAS had been the sole point of refusal then the Respondent would have been given 60 days to in role in another college. The evidence in the Home Office bundle confirmed the "invalid" test score and referred to the witness statement from Rebecca Collings.

6. In his conclusions the judge noted that, in 10 years of studying in the UK, the Respondent had only ever been awarded a diploma in English language. The judge found that the Respondent probably had no interest in pursuing genuine studies and would applied to whichever college would enrol him for whichever course he could find [12]. The Respondent was a very mature students when he first arrived in the UK and had nothing to show for his studies beyond a language diploma at a level below that which he would already have possessed given that he was granted entry to study for a Masters Degree in Law. The judge stated [13] that the inexplicable conclusion was that the Respondent was not interested in studying but was using student visas as a means of remaining in the UK for other reasons, with economic reasons the most likely. The variety of different courses in respect of which the Respondent had applied did not indicate that he had "chosen fields" of study but that it had made no difference what he applied to study: each course allowed him the chance to fulfil his real aim of continuing to reside in the UK.

7. At [15] the judge stated,

The fact that Mr Khan is not a genuine student does not mean that he did not genuinely take the test. The screenshot showing that Mr Khan's test result was considered "invalid" means that the burden of proof shifts to Mr Khan to show that he did not employ a proxy tester. The evidence he provides to establish this include several other English language test certificates issued to him. Some are from City & Guilds in 2014 and there was no suggestion that those were obtained by deception. Another is from ETS issued on 14 January 2014. ETS does not suggest that this is invalid. The one test which does not meet the required standard of English speaking is the one taken on 10 December 2013, allegedly by a proxy, paid to take the test on his behalf. The test records that the ability of the person taking the test showed "unclear pronunciation, mistakes in grammar, a limited range of vocabulary." It is not established that Mr Khan would pay another person with English language ability at this level to take this test for him when other test certificates demonstrate a greater level of ability.

8. Then at [16] the judge states, "when balanced against the evidence set out by the [Appellant], including not only the 'generic' statements but also the fact that he sat the test in Watford not Luton, and the lack of first-hand understanding of all the questions put to him in English at the hearing, Mr Khan has established that it is more likely than not that the test was not taken by a proxy."

9. The judge concluded therefore that the Respondent should have been offered an additional 60 days to obtain a valid CAS from an approved college. The decision was not in accordance with the law and the appeal was allowed to this limited extent.

The grounds of appeal and the grant of permission

10. The grounds contends that the judge made a factual error in assessing the Respondents ETS marks. It was claimed that his score for speaking was a hundred and 180/200 and 450/500 for listening. These were said to be high marks for speaking which the Respondent was said, for no apparent reason to have been unable to demonstrate at the hearing. It was submitted that the judge made a mistake of fact as to what level of English the Respondent had achieved with ETS, and the judge had failed to properly factor in his adverse credibility finding relating to the genuineness of the Respondents studies when assessing whether a proxy tester had been used.

11. In granting permission to appeal the first-tier Tribunal concluded that it was arguably difficult for the judge to equate his findings that the Respondent sat the test with his findings that the Respondent was not a genuine student and had not understood all the questions that had been put him at the hearing.

Hearing before the Upper Tribunal

12. At 'error of law' hearing I asked Mr Walker to identify the basis of the marks allegedly achieved by the Respondent in his ETS test dated 10 December 2013. Mr Walker could only point to the ETS certificate dated 14 January 2014. In this test the Respondent achieved 180 out of 200 in his speaking test and 190 out of 200 for his writing test. Mr Walker confirmed that the invalid ETS test, dated 10 December 2013, showed the Respondent achieved a speaking score of 140 out of 200 and a writing score of 160 out of 200. Mr Walker acknowledged that the grounds of appeal made inaccurate reference to the invalidated ETS test. Mr Walker made no further submissions in support of the Respondent's appeal.

13. Having briefly heard from Ms Iqbal, who had provided a useful rule 24 response and skeleton argument and who pointed out that the reference at [16] to the proficiency of the Respondents English at the hearing was in fact based on a submission made by the resenting officer, I indicated that the secretary of state's appeal would be dismissed.

Discussion

14. The judge did not find the Respondent to be a genuine student. This was perhaps unsurprising given the Respondent's educational and immigration history. The Respondent has not achieved any significant educational success in the UK despite having remained here for some 10 years. The judge was of the view that the Respondent would avail himself of any course that would enable him to remain in the UK. The judge was demonstrably and acutely aware of this conclusion when he assessed whether the Appellant had discharged the burden of proving that deception had been used by reason of the Respondent's reliance on the ETS test dated 10 December 2013. As a matter of logic it is quite possible for a person who is not a genuine student to have nevertheless genuinely undertaken an ETS test without utilising a proxy tester.

15. The quality of the evidence relied on by the Respondent was thoroughly assessed by the Upper Tribunal in SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC). The President of the Upper Tribunal found that the evidence relied on by the Secretary of State was just sufficient to discharge the initial evidential burden, thereby shifting the evidential burden to the Appellant to raise an innocent explanation. The judge in this case fully appreciated that dynamic and was satisfied that the evidential burden had shifted. The judge thereafter carefully considered the Respondent's explanation.

16. The judge first noted that the scores achieved by the Respondent, in respect of the invalidated test taken on 10 December 2013, were low. The Respondent achieved 140 out of 200 for speaking and 160 out of 200 for listening. The assertions to the contrary in the grounds of appeal are simply inaccurate. It appears that the author of the grounds relied on the ETS test taken on 14 January 2014 rather than the invalidated test taken on 10 December 2013. The December 2013 results were sufficiently low that the Respondent was required to retake the ETS test on 14 January 2014. He got a much higher score on this occasion. There has been no suggestion that a proxy tester was used in respect of this test, a point made by the judge. The judge additionally pointed to other English-language tests undertaken by the Respondent. The judge was rationally entitled to conclude that it would be extremely unusual for a person to pay another to undertake a test that would result in low scores. This point was acknowledged by Mr Walker at the hearing. It simply made no sense that a proxy tester would be used to obtain a low test result. Given the serious deficiencies in the evidence relied on by the Respondent I am in no doubt that the judge took into account all relevant considerations and reached a decision that was reasonably open to him on the evidence before him.

17. The judge was entitled to find that the refusal under paragraph 322 (1A) had not been made out. It was accepted by the presenting officer at the First-tier Tribunal hearing that, but for the refusal under paragraph 322 (1A), the Appellant would have been issued with a "60 day" notice to enable him to enrolled in another college. The decision of the First-tier Tribunal is maintained.

Notice of Decision

The First-tier Tribunal did not make any error of law. The decision of the First-tier Tribunal stands. The Secretary of State's decision was not in accordance with the law because Mr Khan should have been offered a "60 day" notice.

I make no anonymity order.

15 December 2016
Signed Date

Upper Tribunal Judge Blum