Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/31358/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD MUFAZZAL HUSEN
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr Md Islam of Counsel instructed by PGA Solicitors LLP

DECISION AND REASONS

1. I will refer to the respondent as the appellant as he was known before the First-tier Tribunal. The appellant is a citizen of Bangladesh and his date of birth is 12 August 1983. He appealed against the decision of the Secretary of State of 4 September 2015 to refuse his leave to remain in the UK as a Tier 4 (General) Student Migrant under the points-based system. The application was refused under paragraph 322(1A) of the Immigration Rules following the decision of the Secretary of State that the appellant had submitted a TOEIC certificate which had been obtained by deception on the basis that there was significant evidence to conclude that the certificate was fraudulently obtained by the use of a proxy test taker and thus the decision was refused under paragraph 322(1A) of the Immigration Rules.

2. The appellant appealed against that decision and his appeal was allowed by Judge of the First-tier Tribunal Russell in a decision that was promulgated on 27 September 2016 following a hearing at Taylor House on 8 September 2016. First-tier Tribunal Judge Shimmin granted permission to the Secretary of State in a decision of 17 January 2017.

3. The salient paragraphs of Judge Russell’s decision are paragraphs 41, 42 and 44:

“41. In this matter, the bare evidence specific to the appellant is that ETS have invalidated his test results. This is said to be because of deception in the taking of the tests. I note that the respondent’s reasons for the decision and the evidence relied upon by the respondent is entirely generic, there are no specific allegations against the appellant concerning what kind of deception the appellant may have deployed, for example by using a proxy to take tests for him.

42. I note that the appellant gave evidence during his hearing in English and I did not detect any problems with comprehension or speaking.

44. I am not satisfied that the respondent has furnished evidence of sufficient quality to show that this appellant has employed deception in his application. I recognise that ETS have invalidated his English language test results but the basis of that invalidation is not clear nor are there are specific allegations about the appellant as to how he may have deceived the ETS. The generic evidence provided, as noted above, reveals that there are errors in the invalidation process, which is unsurprising given that the process is essentially driven by humans. There is nothing in the evidence before me which shows that in the appellant’s case factors such as background noise, the proximity of other test-takers or atmospheric conditions have been taken into account and discarded as a possible reason for distortion.”

4. The Secretary of State’s grounds challenge the decision asserting that the Judge made a material misdirection of law in relation to the standard and burden of proof relying on the Secretary of State for the Home Department in Shehzad and Another [2016] EWCA Civ 615. Mr Islam at the start of the hearing conceded that there was an error of law but in his view it is not material.

5. Having considered the grounds and the decision I conclude that the Judge materially erred in law. He did not properly apply the guidance in the case of Shehzad where the Court of Appeal gave guidance on what the Secretary of State has to do in order to prove fraud in ETS cases where it is alleged that the results are invalid. The Judge did not properly apply the case law. On the face of it there was evidence of deception which was sufficient to discharge the evidential burden and in cases of this kind the burden then shifts to the appellant to provide an innocent explanation. The Judge misunderstood this at paragraph 44, “I am not satisfied that the respondent has furnished evidence of sufficient quality to show that this appellant has employed deception in his application”.

6. Although it was open to a Judge to conclude that the Secretary of State has not discharged the legal burden it is not clear in this case why the Judge reached this conclusion. This is particularly so because the Judge focused almost exclusively on the respondent’s evidence. At paragraph 41 there is mention of the appellant’s evidence but it is not clear, in the absence of clear credibility findings, what the Judge made of this evidence and why he accepted it. I am not able to conclude that, in the light of the evidence as a whole, the error is not material because the Secretary of State would not be able to discharge the legal burden because of the clear absence of reasoned credibility findings. Both representatives agreed that the matter should be remitted to the First-tier Tribunal for a rehearing.

Notice of Decision

The Secretary of State’s appeal is allowed. The decision to allow the appeal is set aside and the matter remitted to the First-tier to be heard afresh.

No anonymity direction is made.

Signed Joanna McWilliam Date 20 March 2017

Upper Tribunal Judge McWilliam