Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31104/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19th September, 2016
On 22nd September 2016

Before

Upper Tribunal Judge Chalkley

Between

Secretary of State for the Home Department
Appellant
and

KRISHNAPRASANTH SITTAMPALAM
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr S Ahmed, Amirthan & Suresh Solicitors

DECISION AND REASONS
1. In this appeal the appellant is the Secretary of State for the Home Department and to avoid confusion I am going to refer to her as, "the claimant".
2. The respondent is a citizen of Sri Lanka who was born on 11th December, 1988. On 12th November, 2012, he made a combined application for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant under the points-based system and for a biometric residence permit. On 27th August, 2015, the claimant considered the respondent's application and concluded that the application should be refused. She decided to remove the respondent from the UK with directions under Section 47 of the Immigration, Asylum and Nationality Act 2006.
3. The reasons for her decision were that the respondent had submitted a TOEIC certificate from Educational Testing Service [ETS] to the Home Office and to the respondent's sponsor, in order for them to provide him with a Certificate of Acceptance for Studies in accordance with information provided to the Secretary of State by ETS, which, it was alledged, was obtained by decption. The respondent obtained the TOEIC certificate numbers 00442022016034001 and 0044202371019001 as a result of tests which were taken at BIETCC on 18th September, 2012 and 20th November, 2012. ETS reported that it had a record of the respondent's speaking test and using voice and verification software was able to detect when a single person was undertaking multiple tests. ETS undertook a check of the respondent's test and confirmed to the Secretary of State that there was significant evidence to conclude that the respondent's certificate was obtained fraudulently, by the use of a proxy test taker. ETS had declared the tests to be invalid because of the presence of a proxy tester taking the test in the respondent's place and his scores were, therefore, cancelled.
4. As a result of the evidence placed before the Secretary of State, she was satisfied that the test certificate was fraudulently obtained. She refused the application under paragraph 322(1A) of Statement of Changes in Immigration Rules HC 395 as amended (Immigration Rules).
5. The respondent appealed and his appeal was heard at Columbus House Newport on 26th January, 2016 by First-tier Tribunal Judge M Whitcombe. The judge allowed the appeal because he was not satisfied on the balance of probabilities that there was fraud and he also went to allow the appeal under Article 8.
6. The judge's conclusions are at paragraphs 29 to 34 of the decision. What the judge said was this:
"29. I have weighed the [claimant's] rather generic evidence against the [respondent's] firm and clear denials in cross-examination. The [respondent] was able to give convincing detail of arrangements at the test centre on the days he took the tests. I have also considered the background evidence of the extent of fraud at the institution concerned.
30. While I do give some weight to the [claimant's] verification evidence, its weight is diminished by the failure to call anyone who could vouch for the care and accuracy of the analgises in the [respondent's] particular case. The generic evidence of the systems put in place only goes so far, and does not really establish with sufficient cogency that the analysis in the [respondent's] own case was reliable.
31. I was also influenced by a number of other points. I gave some limited weight to the fact that the [respondent's] successful tests were undertaken on different days. That is arguably the behaviour of someone who wished to maximise the chances of passing. If a proxy candidate was sitting the tested then there would be less incentive to do that, although of course there might be other reasons. The pattern of scores themselves is not inherently odd. A narrow fail turned into a pass on re-testing. That is not surprising. There is nothing suspicious about the [respondent's] choice of institution. While it may very will be that significant levels of fraud tainted BIETTEC tests, the [respondent] chose that institution because of its links with Aylssa School, where he wished to study in the future. His reasons for choosing it were innocent.
32. Overall I am not satisfied that fraud has been established on the balance of probabilities in the [respondent's] particular case.
33. Because I am not satisfied on the balance of probabilities that there was fraud, the appeal succeeds under the Immigration Rules.
34. It also follows that the decision was otherwise not in accordance with the law because the [claimant] had failed to afford the [respondent] the 60 day period of grace to obtain a fresh CAS and supporting documents because of its conclusion as to fraud. On my findings, that approach offended against Patel principles, which are also now enshrined in the Immigration Rules themselves."
7. The judge went on to purport to deal with Article 8 and in doing so simply said this:
"35. In those circumstances the Article 8 point adds little of significance, since the interference with private life was neither in accordance with the law nor proportionate.
36. I can nevertheless indicate I did not find anything especially significant about the [respondent's] private life, which was limited to studying. It was at all times 'precarious' in the sense considered in AM (Section 117B) Malawi [2015] UKUT 260 (IAC) and therefore carried relatively little weight. There was nevertheless an interference with the unexceptional private life sufficient to engage Article 8 because I accept the [respondent's] evidence that he would not simply be able to continue his studies in Sri Lanka where left off in the UK.
37. Had I been satisfied of the existence of fraud, then interference with that private life would certainly have been proportionate to the legitimate aims of and public interest in, firm and effective immigration control.
38. The appeal will be allowed for those reasons."
8. The respondent challenged the decision and in addressing me, Mr Tufan explained that in this appeal the judge has simply not made clear and sufficiently reasoned findings of fact. The judge does not, for example, make any findings as to what the test arrangements were at the test centre which he refers to at paragraph 29. The judge fails to make clear findings and give proper reasons for those findings in respect of what he says at paragraphs 30 and at paragraph 31.
9. Simply to find that the judge was not satisfied that fraud had been established on the balance of probabilities, as he did at paragraph 32, without an explanation as to why he had reached that conclusion, was insufficient, he suggested. The judge's consideration of Article 8 is also inadequate. The judge has made no attempt at considering whether or not the respondent might be able to satisfy the requirements of the Immigration Rules, said the Prestenting Officer.
10. For the respondent, Mr Ahmed valiantly sought to persuade me that There was no error in the determination. While the judge's consideration of Article 8 was wrong, that did not affect or in anyway contaminate the judge's decision in respect of the Immigration Rules. He pointed out that the judge considered all the evidence before him and at paragraph 31 noted that he was influenced by the fact that the respondent's tests were taken on different days and that that would arguably be the behaviour of someone who wished to maximise their chances of passing examinations. The judge noted that a narrow fail turned into a pass on retesting.
11. I have concluded that the judge's determination is materially flawed. The judge has failed to make adequate, properly reasoned findings for his decision in respect of the respondent's immigration appeal. If the judge was satisfied that the respondent met the requirements of the Immigration Rules, he should have properly explained why and it would not have been necessary for him to go on to consider Article 8. However, if Article 8 was to be considered, then he should have approached the Article 8 assessment in the way he describes at paragraph 23 of his determination but there was no consideration at all of whether or not the respondent might meet the requirements of the Immigration Rules.
12. The result is, I believe, that although the judge allowed the respondent's appeal, the respondent's appeal has not been heard fairly. I set aside the determination of First-tier Tribunal Judge Whitcombe. The representatives indicated that they believed the matter should be referred back to the First-tier Tribunal in order that it might be heard afresh by a judge other than Judge Whitcombe. Given the inevitable delays that would occur were I to retain this file and hear the matter myself, I believe that this is the appropriate course.

Notice of Decision
13. I therefore set aside the decision of Judge Whitcombe and direct that the appeal should be heard afresh by another Judge of the First-tier Tribunal. I believe that 2 hours should be adequate for the hearing.

Richard Chalkley
Upper Tribunal Judge Chalkley