Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30642/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 9 March 2017
On 27 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Naeem Farooq
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Bates, Senior Home Office Presenting Officer
For the Respondent: Mr Moksud, International Immigration Advisors

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Naeem Farooq, was born on 22 April 1976 and is a male citizen of Pakistan. The appellant entered the United Kingdom as a student in October 2006. By a decision dated 18 August 2014, the appellant was refused further leave to remain as a Tier 4 Migrant. By a decision dated 25 November 2014, the First-tier Tribunal allowed an appeal “only to the extent that the matter is remitted to the respondent to make a decision in compliance with the common law duty of fairness.” The Secretary of State did not appeal against that decision but issued a further refusal letter dated 28 August 2015 again refusing the application made by the appellant for further leave to remain. This new decision was based upon an allegation by the Secretary of State that the appellant had used deception in obtaining a TOEIC certificate from Educational Testing Service (ETS). The appellant appealed to the First-tier Tribunal (Judge Thorne) which, in a decision promulgated on 14 May 2016, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. Judge Thorne in his decision purported to consider all the evidence before him. He refers to the “generic” statement submitted by the Secretary of State by Rebecca Collings and Peter Millington. The judge noted at [24] that “they do not mention the appellant in the case before me.” At [53/54], the judge refers to “computer printouts headed ETS SELT Source Data: these have not been deciphered and no adequate explanation has been given as to their relevance or import. I therefore give them little weight.” The document to which the judge refers appears in the respondent’s bundle at D1. This shows that the appellant had undertaken a test deemed by ETS to be “invalid.” This ‘evidence of a screenshot’ was considered by the Court of Appeal in Shehzad [2016] EWCA Civ 615 at [25-26]:
The FtT judge stated that there was no evidence identifying Mr Chowdhury as a person whose test was "invalid". In fact, the evidence included a screenshot of the results which stated this was the position. The evidence also included the "ETS Lookup Tool" which showed the tests that were "invalid". The determination also shows other mistakes and misunderstandings of the process undertaken by ETS and explained in Mr Millington and Ms Collings's statements. In particular, the FtT judge's conclusion (see [7] above) that "there could be multiple reasons for invalidation, some of which may not involve fraud or deception", failed to appreciate the distinction in the evidence between cases categorised as "questionable" and those categorised as "invalid". In "questionable" cases it was accepted that there may not have been deception. In "invalid" cases, this was not accepted. That was because the voice on the audio recording of the test under consideration (e.g. Mr Chowdhury or Mr Shehzad's test) matched the voice of someone who had taken another test using a different name.
With regard to the decision of the Upper Tribunal, I accept Ms Giovennetti's submission that it is not possible to derive from the FtT's determination that, as the Deputy Upper Tribunal judge found, the FtT judge was "well aware of the straightforward ETS Lookup Tool document" that she stated showed Mr Chowdhury's test to be invalidated. This statement also shows that the Deputy Upper Tribunal judge misunderstood the nature of the evidence. Had she understood it properly, she would have had to deal with the failure of the FtT judge to treat the "ETS Lookup Tool" as evidence that Mr Chowdhury's test had been invalidated. The reason for the misunderstandings by the tribunals may be that the language used by Mr Millington and Ms Collings in their statements to explain a technical process is not altogether clear. But, whatever the reason, in these circumstances, in my judgment the in limine rejection of the Secretary of State's evidence as even sufficient to shift the evidential burden was an error of law.
3. Mr Bates, for the respondent, acknowledged that Judge Thorne had fallen into a similar error as the First-tier and Deputy Upper Tribunal Judges in the case of Shehzad. The strong impression given by Judge Thorne’s decision is that he believed he had before him only (i) the “generic” evidence of Millington and Collings and (ii) a document purporting to deem the appellant’s result as “invalid” to which the judge attached little, if any, weight. The Court of Appeal in Shehzad acknowledged that the “generic” evidence alone might render it difficult for the Secretary of State to discharge the evidential burden “at the initial stage.” [30]. However, in the passage which I have quoted above [25-26] it is apparent that the Court of Appeal considered that the initial burden on the Secretary of State had been discharged in circumstances where the “generic” evidence was accompanied by the “invalid” screenshot. Judge Thorne had found that the Secretary of State had “failed to discharge the burden of proving fraud on the part of the appellant.” [61] Had the judge assessed the evidence of the Secretary of State correctly, he would have identified the need for the appellant to provide an innocent explanation for the “invalid” result. Thereafter, if the judge had accepted that explanation, the burden of proof would have shifted back to the Secretary of State. Because he did not follow that procedure, Judge Thorne went on to find as follows at [63]:
When considered in the round, I find the appellant to be an honest and compelling witness. He has remained consistent in his account and his evidence that he did not take the test using a proxy and that he was well able to pass the test without using fraud is plausible. In coming to this conclusion I also take into account the evidence that he had been living and studying in the UK for many years following courses taught in English.
4. It is not clear for what reasons the judge found it was “plausible” that the appellant had passed the test without using fraud. He did not consider whether the appellant may have used a proxy to take the test for any reason other than that he was aware that his own English language skills were inadequate. Because the judge has not followed the procedure outlined by the Court of Appeal in Shehzad, his reasoning and conclusions at [63] his analysis is adequate to support the conclusion he reaches.
5. I set aside the decision of the First-tier Tribunal. I am aware that the respondent may now wish to produce more evidence upon a remittal of the appeal to the First-tier Tribunal. Both parties shall send to the Tribunal and to each other any evidence (including new evidence) on which they may respectively intend to rely no later than seven days prior to the next First-tier Tribunal hearing.
Notice of Decision
6. The decision of the First-tier Tribunal promulgated on 14 May 2016 is set aside. The appeal is returned to the First-tier Tribunal (not Judge Thorne) for that Tribunal to remake the decision.
No anonymity direction is made.

Signed Date 20 MARCH 2017

Upper Tribunal Judge Clive Lane