Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/30713/2015
IA/30724/2015
IA/30726/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 February 2017
On 3 March 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

UMI SHRESTHA
ROSHAN LAL SHRESTHA
RAYUSH LAL SHRESTHA
[No anonymity direction made]
Appellants
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellants: Mr V Makol, instructed by Maalik & Co
For the respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellants’ appeal against the decision of First-tier Tribunal Judge Widdup promulgated 19.8.16, dismissing their linked appeals against the decisions of the Secretary of State, dated 21.6.15, to refuse their applications for leave to remain in the UK.
2. The second and third appellants are dependants of the first appellant, who first came to the UK in 2009 with leave to remain as a Tier 4 student. The appeals of the second and third appellants stand or fall with that of the first appellant.
3. The Judge heard the appeal on 8.8.16.
4. First-tier Tribunal Judge Hollingworth granted permission to appeal on 29.12.16.
5. Thus the matter came before me on 23.2.17 as an appeal in the Upper Tribunal.
Error of Law
6. For the reasons summarised below, I am satisfied that there was an error of law in the making of the decision of the First-tier Tribunal such as to require the decision of Judge Widdup to be set aside and remitted to the First-tier Tribunal to be remade afresh.
7. In essence, Judge Widdup erred in relation to the burden of proof in relation to the ETS evidence and allegation that the first appellant acted fraudulently in the obtaining and submission of an English language test certificate. The first appellant’s case was that she had taken the test herself at Elizabeth College, Battersea.
8. The Secretary of State relied on the generic evidence, together with the report of Professor French and details of Operation Façade.
9. I find that the judge was in error of law in stating at [24] that it was for the first appellant to show that she acted without dishonesty. That is a misreading of Qadir, referred to at [21] of the decision.
10. In SM & Qadir [2016] the Upper Tribunal held that, “The generic evidence upon which the Secretary of State has relied to date in all ETS cases has been held insufficient to discharge the legal burden of proof on the Secretary of State of proving that the TOEIC certificates were procured by dishonesty in circumstances where this evidence, via expert evidence and otherwise, has been demonstrated as suffering from multiple shortcomings and frailties and, further, the evidence of the two students concerned was found by the Tribunal to be plausible and truthful.”
11. It follows that whilst the generic evidence might be sufficient to discharge the evidential burden on the Secretary of State, the legal burden remains on the Secretary of State throughout. Once there is sufficient evidence to shift the evidential burden to the appellant, the appellant only has to discharge that evidential burden by raising an innocent explanation. Once that is done, as was the case in the present appeal, the legal burden remains on the Secretary of State to demonstrate dishonesty. The appellant does not have to prove that she was acted without dishonesty.
12. It is clear that there has been a fundamental misunderstanding of the law, both as set out in Quadir, and more particularly the earlier decision of Shen (Paper Appeals: Proving Dishonesty) [2014] UKUT 236 (IAC).
13. In Shen the Upper Tribunal held, in harmony with established principle, that in certain contexts the evidential pendulum swings three times and in three different directions:
(a) First, where the Secretary of State alleges that an applicant has practised dishonesty or deception in an application for leave to remain, there is an evidential burden on the Secretary of State. This requires that sufficient evidence be adduced to raise an issue as to the existence or non-existence of a fact in issue: for example, by producing the completed application which is prima facie deceitful in some material fashion.
(b) The spotlight thereby switches to the applicant. If he discharges the burden - again, an evidential one - of raising an innocent explanation, namely an account which satisfies the minimum level of plausibility, a further transfer of the burden of proof occurs.
(c) Where (b) is satisfied, the burden rests on the Secretary of State to establish, on the balance of probabilities, that the Appellant's prima facie innocent explanation is to be rejected.
14. The Tribunal should have approached the evidential burden on the appellant on the basis of the minimum level of plausibility in relation to an innocent explanation. The Tribunal should then have considered whether, the Secretary of State had discharged the legal burden of proof.
15. It follows that when, at [32] of the First-tier Tribunal decision, Judge Widdup was not satisfied that the first appellant had discharged the burden of proof on her, “and I find therefore that the respondent has shown that she undertook the course either irregularly or fraudulently,” the Tribunal materially erred in law.
16. There is a further error of law in [44] of the decision, where the judge purports to find that section 117B(6) cannot assist the appellants. As the judge noted at [40] the third appellant had lived in the UK for 7 years. She was therefore a qualifying child under section 117B(6). Given it was not disputed that the parents had a genuine and subsisting relationship with their child, the judge should have assessed whether it was reasonable to expect the child to leave the UK. Section 117B(6) has been held to be a complete answer to all other public interest considerations in a case which does not involve deportation, including the immigration history of the appellants. [44] does not contain any adequate assessment of the balancing exercise required to assess whether removal of a child who has been in the UK for 7 years would be reasonable.
17. It follows that the decision of the First-tier Tribunal is flawed for multiple errors of law and cannot stand.
Remittal
18. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. Where the facts are unclear on a crucial issue at the heart of an appeal, as they are in this case, effectively there has not been a valid determination of those issues. The errors of the First-tier Tribunal Judge vitiates all other findings of fact and the conclusions from those facts so that there has not been a valid determination of the issues in the appeal.
19. In all the circumstances, I find this is a case which falls squarely within the Senior President’s Practice Statement at paragraph 7.2. I find that it is appropriate to remit this appeal to the First-tier Tribunal to determine the appeal afresh.
Conclusions:
20. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the linked appeals to be decided afresh in the First-tier Tribunal in accordance with the attached directions.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Consequential Directions
21. The appeal is remitted to the First-tier Tribunal sitting at Hatton Cross;
22. The appeal is to be relisted at the first available date;
23. The appeal is to be decided afresh with no findings of fact preserved;
24. The ELH is 2 hours;
25. The appeal may be listed before any First-tier Tribunal Judge, with the exception of Judge Widdup and Judge Howard;
26. The appellant is to ensure that all evidence to be relied on is contained within a single consolidated, indexed and paginated bundle of all objective and subjective material, together with any skeleton argument and copies of all case authorities to be relied on. The Tribunal will not accept materials submitted on the day of the forthcoming appeal hearing;
27. The First-tier Tribunal may give such further or alternative directions as are deemed appropriate.
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The outcome of the appeals remains to be decided.

Signed

Deputy Upper Tribunal Judge Pickup

Dated