Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30701/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 February 2017
On 16 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

THE SECRETARY OF STATE FOR THE HOME DEPERTMENT
Appellant
and

Mr Nikhil Kurmi
(anonymity direction not made)
Respondent

Representation:

For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr A Rahman, Legal Representative, JKR Solicitors

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge Taylor which was promulgated on 28 July 2016. The appellant (to adopt his status in the First-tier Tribunal) is in his late 20s and a citizen of Bangladesh. He has a lengthy immigration history dealing with a number of entries to this country whereby he obtained entrance as a Student Migrant.

2. The substantive issue which was before the First-tier Tribunal was a refusal of further leave communicated in a notice of decision dated 28 August 2015. The matter which the judge had to determine was whether a certificate which had been provided by the appellant as part of his application had been obtained dishonestly by using a proxy to sit the test.

3. The matter is slightly complicated by the fact that this appellant sat more than one test. The first in time was on 13 December 2011 and that test is identifiable by the final four digits which were -4376. (I note parenthetically that the First-tier Tribunal in paragraph 12 makes reference to certificate -4437 and it is accepted by both parties before me that this is a typographical error and read -4376). That certificate showed among other things a speaking score of 150, which is categorised by Mr Rahman, who acts for the appellant, as a failure.

4. Before the First-tier Tribunal, reliance was placed on a second certificate, this one ending -3553, which revealed a speaking score of 160. This, Mr Rahman states, was a pass. Mr Rahman took me to the application form which was before the First-tier Tribunal and in particular to the stated score of 160, which, he says, is suggestive of the fact that reliance was being placed (in part at least) on the second certificate.

5. The judge dealt with this matter in paragraphs 11 and 12 of the determination and in particular the distinction between certificate -3553 and certificate -4376. Paragraph 12 reads as follows:

"In addition to the lack of evidence against the appellant, the refusal letter refers to a certificate ending in the numbers [4376], but this is a failure certificate. I find it less than credible that a proxy test taker would be engaged to take a test and would fail. In addition the appellant had not relied on the certificate mentioned in the refusal letter. In the application the appellant relied on a pass certificate with the number ending in the digits 3553. This is the pass certificate on which the appellant relies and there is no allegation of fraud in respect of this certificate. I find that no credible evidence of fraud has been submitted in respect of this appellant and there is no allegation of fraud regarding the certificate on which he relied in the application." (emphasis added)

6. The difficulty with the appellant's position is that there was a substantive allegation of fraud before the First-tier Tribunal relating to certificate -4376. It was not open to the judge to take the view that because that certificate is seemingly not relied upon, that the allegation of fraud is irrelevant and need not be considered.

7. Further, it was not correct, as the judge asserted, that there was no credible evidence of fraud. On the contrary, there was evidence before the court in the form of a witness statement from Rebecca Collings and a further statement from Peter Millington. Exhibited to these statements was a document sufficient to discharge the evidential burden on the Secretary of State identifying certificate 4376, naming this specific appellant, and declaring the test to be invalid.

8. The judge made no reference to Secretary of State for the Home Department v Shehzad & Anor [2016] EWCA Civ 615, in which Lord Justice Beatson, giving the judgment of the court, affirmed that generic evidence which identifies a particular invalid test certificate is sufficient prima facie evidence on the Secretary of State's part to discharge the evidential burden of demonstrating fraud.

9. In not applying the Shehzad test when considering fraud in relation to certificate -4376 the judge fell into error. That being a material error of law, it must follow that the determination is set aside. Notwithstanding the provision of a later certificate, the impugned certificate, in relation to which a prima facie case of dishonesty was sufficiently made out on the evidence, formed part of the application, was indicative of the conduct of the appellant, and could not simply be consciously ignored as the judge purported to do.

10. Having set aside the decision of the First-tier Tribunal, the next question is whether the matter should be retained in the Upper Tribunal and remade or remitted to the First-tier Tribunal. Mr Rahman's position was one of neutrality. Mr Melvin, for the Secretary of State, commended remittal to the First-tier Tribunal. As this is a matter where the error of law goes to the heart of the determination, the proper course would be to have this matter re-determined de novo by another judge of the First-tier Tribunal and considered afresh having regard to all relevant matters, including the impact of Shehzad.

Notice of Decision

Having found a material error of law, this appeal is allowed and the decision of the First-tier Tribunal is set aside.

The matter is remitted to the heard afresh by a judge of the First-tier Tribunal other than Judge Taylor.

No anonymity direction is made.

Signed Mark Hill Date 15 February 2017

Deputy Upper Tribunal Judge Hill QC