Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30578/2015

THE IMMIGRATION ACTS

Heard at Field House
On 9th September 2016
Decision & Reasons Promulgated
Prepared 12th September 2016
On 14th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MR Md Jahedur Rahman Chowdhury
(ANONYMITY ORDER NOT MADE)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr. A. Hossain, Solicitor
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

NOTICE OF DECISION
The Appellant
1. The Appellant is a citizen of Bangladesh born on 31 October 1969. He appeals against a decision of Judge of the First-Tier Tribunal Beg sitting at Taylor House on 5th of January 2016 in which she dismissed the Appellant's appeal against a decision of the Respondent dated 28th of August 2015. That decision was to refuse to vary the Appellants leave to remain in the United Kingdom and to remove him by way of directions under section 47 of the Immigration, Asylum and Nationality act 2006. The Appellant had first arrived in the United Kingdom as a student migrant on 23rd of January 2008. He was subsequently granted further leave to remain as a Tier 4 (general) student migrant from 20th of August 2009 until 30th August 2010. Further leave to remain was granted in the same capacity until 30th of April 2012. This was further extended until 28th of February 2015. The Appellants leave to remain as a Tier 4 (general) student migrant was curtailed on 27th of June 2014 so that his leave to remain expired on 31 August 2014. The Appellant gave notice of appeal on 10th of September 2015.
The Explanation for refusal
2. On 28th of March 2013 the Appellant had applied for leave to remain as a Tier 4 (general) student, an application that was granted by the Respondent. To support the application the Appellant had submitted a TOEIC certificate from the Education Testing Service (ETS) to both the Respondent and to his sponsor in the latter case for the sponsor to provide the Appellant with a confirmation of acceptance for studies (C AS). The Respondent now stated that using voice verification software ETS was able to detect when one individual undertook multiple English language tests. A check had been made of the Appellants test and ETS had confirmed to the Respondent that there was significant evidence to conclude that the Appellant's certificate was fraudulently obtained by the use of a proxy test taker. ETS declared the Appellants test to be invalid due to the presence of this proxy test who had sat the test in the Appellant's place and the Appellant's scores were cancelled.

3. As the Respondent was satisfied on the basis of the information from ETS that the English language certificate was fraudulently obtained the Respondent refused the Appellant's current application under paragraph 322 (2) of the Immigration Rules. As the Appellant's application had been refused under one of the general grounds for refusal the Respondent was not satisfied that the Appellant could meet the requirements of paragraph 245ZX (a) of the Rules. Any application under Article 8 would have to be made separately on a specified form.
The Appeal
4. The Appellant denied that a proxy taker had obtained his certificate for him or that he had used deception in any attempt to gain leave. The Respondent's allegation was made without any supporting or documentary evidence. To prove deception the Respondent would have to show intentional dishonesty which she could not do. In any event discretion was not properly exercise by the Respondent in his favour and he also relied upon Article 8 (respect for private and family life) of the European Convention on Human Rights specifically in relation to private life.
The Hearing at First Instance
5. The Appellant did not attend the hearing claiming that he was unwell with an eye infection and loose bowel movements. The application to adjourn made by letter before the hearing date was refused on the basis that insufficient medical evidence had been provided to justify the adjournment. When the case was called on for hearing the Appellant did not attend but he was legally represented by his solicitor who also appeared before me. The appeal at first instance therefore proceeded by way of submissions.

6. The Judge had before her witness statements of two Home Office officials Peter Millington and Rebecca Collings. The Appellant's solicitor argued that these statements were generic and did not specifically relate to this Appellant. Mr. Millington had acknowledged in his statement that the technology used was imperfect and the Appellant's solicitor questioned how the conclusion had been arrived at that fraud was used. There was no further evidence of how the Appellant's test result was invalidated. The Appellant had not been asked to retake the test. Nevertheless the Appellant did eventually take a test and passed it before submitting his current application. On the balance of probabilities the Appellant had established he was able to pass the standard at the B2 level.

7. The Respondent in reply made two points. The first was that all the tests were subjected to voice analysis and then analysed by humans. Only then was a test recorded as invalid. 88% of the cases which were analysed were found to be fraudulent. The second point was that the Appellant's failure to attend the appeal hearing and subject himself to cross-examination had damaged his credibility. The Appellant's solicitor maintained that the system was fallible and the Appellant was unwell.

The Determination

8. Quoting from the statement of Mr. Millington at paragraphs 45 and 46 the Judge noted that the ETS investigation came about was a result of a television programme broadcast in February 2014. At paragraph 26 of her witness statement Ms Collings stated that in late March 2014 ETS informed the Respondent that it had been able to identify impersonation and proxy test taking using voice recognition software. A significant data matching process was commenced to take the results from ETS and match them to individuals.

9. The Judge acknowledged that these statements had been criticised as being generic but she found that they provided highly relevant background information about ETS and the process used to verify whether a particular applicant had in fact taken the English language test or whether someone else (a proxy) had taken the test for him. At paragraph 13 of her determination the Judge noted that there was specific evidence which related to the Appellant. There was a MIDA matched data document which related to him. The ETS source data showed that the test taken in the name of the Appellant was rendered invalid. The Respondent had discharged the burden of proof upon her by submitting specific documents showing the English language test taken by the Appellant and the subsequent results. On the balance of probabilities she found that the Appellant had submitted a fraudulent English language test in a previous application for leave to remain. The Appellant had not attended the hearing of the appeal and provided no additional evidence to rebut the allegations of fraud. The Respondent's decision was in accordance with the law. At paragraph 16 the Judge considered the Appellant's application under Article 8 but found no compelling circumstances such that the Appellant's case should be considered outside of the Immigration Rules.
The Onward Appeal
10. The Appellant argued against this decision submitting that in cases such as this there needed to be cogent evidence and generic witness statements would not suffice. He cited the case of Gazi in which criticism was made of Mr Millington's evidence particularly that he could lay claim to no relevant credentials or expertise in the field of voice recognition. If the Appellant had identified himself through his passport before taking the test that would suggest that photographic identity evidence was available making the presumption that the Appellant used a proxy test taker even less likely. The Judge had not set out to what extent she had taken the Appellant's subsequent English language test into account nor had she answered the question why a person who was clearly competent in English such as this Appellant would cheat as alleged. Further the Judge had materially erred in failing to conduct an Article 8 assessment outside of the rules.

11. The application for permission to appeal came on the papers before Judge of the First tier Tribunal Fisher on 5th of July 2016. In granting permission to appeal he wrote that it was arguable that the Judge had erred in finding that the Respondent's generic evidence in this ETS case was sufficient to discharge the burden of proof following the decision of the President of the Upper Tribunal in SM and Qadir [2016] UKUT 229 ("Qadir"). The grounds had also asserted that the Judge had erred in refusing an adjournment but Judge Fisher found that the First-tier was justified in refusing the adjournment request given the nature of the medical evidence (or lack of it). Further the Appellant could not succeed under Article 8 following the decision in Patel [2013] UK SC 72. Permission to appeal was granted on one basis only that is the issue of the generic nature of the Respondent's evidence.

12. The Respondent replied to the grant of permission by letter dated 15th of August 2016. This argued that the Judge was entitled to attach significant weight to the evidence provided by the Respondent and had given adequate reasons for her findings.
The Hearing Before Me
13. At the outset of the hearing an issue was raised as to whether I should further adjourn this appeal given that permission to the Respondent to appeal to the Court of Appeal had been given by the Upper Tribunal in the case of Qadir. Before deciding whether to adjourn the case I considered the provisions of the overriding objective and the authority of Nwaigwe [2014] UKUT 418 that the test of whether to adjourn was one of fairness. My duty was to apply the law as at the date of the hearing and I saw no need to adjourn this matter pending the outcome of the Respondent's onward appeal to the Court of Appeal particularly given that the Court of Appeal itself had recently considered the issue of alleged proxy test taking in the case of Shehzad [2016] EWCA Civ 615 to which I refer in more detail below. I therefore indicated that the appeal would proceed which it did.

14. For the Appellant it was argued that cases such as this had to be given anxious scrutiny. The statements of Mr Millington and Ms Collings should not have been taken into consideration or at least considered more cautiously. Even though it was said that the information had come from ETS there was no statement of truth and there was no way that a link between the Appellant and this data could be proved. This evidence had been criticised by the Upper Tribunal in Qadir. Some of the evidence might be questionable rather than invalid. Whole test centre scores had been invalidated. In any event the Appellant had subsequently passed a language test. Why would someone use a proxy test taker in 2012 if by 2014 he could pass the test well?

15. In reply the presenting officer relied on the rule 24 response (see above). The Judge had considered the evidence. There was sufficient evidence to get over the evidential burden. The authority of Qadir did not make it impossible to dismiss an appeal. The evidence before the Judge was sufficient to discharge the burden upon the Respondent. What should ordinarily have happened next was for the Judge to go on to consider the Appellant's evidence in response but she could not do that because there was no evidence because the Appellant had not attended. The Appellant had to take the consequences of his non-attendance. The Appellant had denied taking the test by a proxy but the Respondent had specific evidence that he had. It was a question for the Judge whether she accepted the Appellant's evidence in his absence. There were many reasons why someone competent in English could ask a proxy to take the test for him. For example it might be a busy businessman with other things to do than attend a test centre. It did not follow that because someone could speak English they would not use a proxy test taker. In this particular case due to the absence of the Appellant there was no evidence to rebut the Respondent's evidence.

16. Finally in response the Appellant's solicitor argued that there was no link between the Respondent's evidence and the Appellant. For the burden to shift from the Respondent on to the Appellant there had to be evidence and that was not satisfied in this case.
Findings
17. The Appellant in this case makes much of his argument that there is no direct evidence to link him to the allegation of a proxy test taker. He criticizes the evidence of the two Home Office officials for being generic in nature. Whilst it is correct that those two witness statements do spend some time setting out the background to the problem with English language tests and the methods used by ETS to check whether those tests can be validated or not, it is not the case that there is a complete absence of specific evidence about this particular Appellant. That evidence is contained in the so-called look up tool referred to as the ETS SELT source data. This shows the Appellant's name and that his test was invalid. The Judge had that evidence before her and specifically referred to it in her determination.

18. In the recent Court of Appeal decision of Shehzad the court indicated that they agreed with the Upper Tribunal conclusions in Qadir that the evidence put forward by the Respondent in language test cases was sufficient to shift the evidential burden from the Respondent on to the Appellant at the initial stage (see paragraph 21 of Shehzad). It was for the Appellant to provide an innocent explanation as to how the Respondent's evidence had shown an invalid test. It was not the case that the evidence put forward by the Home Office could be rejected such that the Appellant in effect had no case to answer. There was still an obligation on the Appellant once the Respondent had submitted her evidence to show an innocent explanation.

19. In this case the absence of the Appellant made that task extremely difficult. In the case of Qadir the Appellants gave evidence as to the great lengths they had gone to challenge the evidence of the Respondent that they had used a proxy test taker. The only evidence put forward by the Appellant in this case was that 2 years after the alleged invalid test he had taken a genuine test and passed it at level B2. That was a factor to be taken into account but that was not of itself decisive. There were still gaps in the Appellant's case for which his presence at the hearing was required. For example he might have chosen to give his evidence at the hearing in English without the need for an interpreter. He might also have given evidence of enquiries he had made of the relevant college as to his competence in English. He had raised in his onward grounds of appeal the argument that he needed to show photographic ID on the day of the test. He could have made further enquiries about that in order to produce such evidence to the Judge at the hearing. However none of this was done.

20. Shehzad makes clear that the consideration of the Respondent's evidence and the shifting of the evidential burden are at a very early stage in the consideration of ETS appeals. The Court of Appeal anticipated that in cases which are contested there will be further evidence to come proffered by an Appellant giving his explanation of matters. However in this case matters did not reach that far because the Appellant for no good reason failed to attend his hearing. The Judge was faced with specific evidence which showed that this Appellant had an invalid test and next to no evidence on the Appellant's side of the scales to show why that test result could not be relied upon. As the Respondent indicated in submissions there might be many reasons why an individual with a competent level in English might not wish to take a test. It was not for the Judge to speculate on what that might be but to consider the evidence before the tribunal. This the Judge did at first instance and she arrived at a sustainable conclusion in the light of the jurisprudence that the burden shifted onto the Appellant. He had been unable to discharge that burden with any innocent explanation. The Judge did not err in dismissing the appeal. Accordingly I find that there was no error of law in the decision of the First-tier and I dismiss the appeal.

Notice of Decision
The decision of the First-tier tribunal did not involve the making of an error of law and I dismiss the appeal against that decision.
Appellant's appeal dismissed
I make no anonymity order as there is no public policy reason for so doing.

Dated this 13th day of September 2016
..............................................................
Deputy Upper Tribunal Judge Woodcraft

To the Respondent
Fee Award
As the appeal is been dismissed there can be no fee award.

Dated this 13th day of September 2016
..............................................................
Deputy Upper Tribunal Judge Woodcraft