Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/31425/2015
IA/31430/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 October 2016
On 12 October 2016
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SACHI JIGNESHKUMAR PATEL
DIMPALBEN JIGNESHKUMAR PATEL
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Miss S Fijiwala, Home Office Presenting Officer
For the Respondent: Miss F Shaw, Counsel, instructed by Pasha Law Chambers

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Sweeney promulgated on 30 March 2016. In that appeal Judge Sweeney allowed the appeals of Ms Patel and her daughter against the decisions of the Secretary of State to refuse them further leave to remain, the decision being taken pursuant to paragraphs 322(1A) and 322(2) of the Immigration Rules in respect of the principal appellant, the allegation being that she had obtained her TOEIC certificate from ETS by deception in particular by the use of a proxy test taker. It is clear that that was the sole issue before the First-tier Tribunal as has been confirmed by Miss Fijiwala and Miss Shaw before me this morning.
2. The judge found in particular that he was not satisfied by the generic evidence produced by the Secretary of State, in this case specifically the evidence of Mr Millington and Miss Collings, preferring the evidence of Dr Harrison.
3. It is of note that Dr Harrison's evidence was not challenged before the Secretary of State. The judge found at paragraph 49 of his decision that that
"In light of the limited evidence of Mr Millington and Miss Collings and the evidence of Dr Harrison I am similarly driven to the conclusion that the respondent has failed to discharge the burden upon of her of establishing that the appellant in this case procured a TOEIC certificate by dishonesty."
4. In this case the decision in SM & Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC) was not available in its full version to the Tribunal had been brought to the First-tier Tribunal's attention by way of the press release issued by the President.
5. The Secretary of State sought permission to appeal against this decision on the grounds primarily that the judge had not proper consideration to the specific evidence identifying the appellant as somebody who had exercised deception, that the three statements provided and the spreadsheet evidence containing the specific information provided a clear explanation of how the fraud was detected and that the judge had failed to provide adequate reasons for rejecting the respondent's evidence.
6. Before me Miss Fijiwala submitted in particular that the judge's conclusions at paragraph 49 were wrong given that it was evident from SM & Qadir, particularly at paragraph 68, that the Upper Tribunal in that case had said that it was not persuaded that the Secretary of State's evidence was such that the evidential burden had been discharged. They said:
"By admittedly a narrow margin, were are satisfied that the Secretary of State has discharged this burden. The effect of this is that there is a burden again, an evidential one and the appellants are phrasing an innocent explanation."
7. Whilst I accept that that was again followed in the decision of the Court of Appeal in Shahzad and Choudhury [2016] EWCA Civ 615 at paragraphs [22] to [26], there is an important distinction in this case. It was of course open to the Secretary of State to have challenged the evidence of Dr Harrison before the First-tier Tribunal. For whatever reason she did not do so. That is not the position she adopted before the Upper Tribunal in SM & Qadir.
8. Accordingly, and bearing in mind that no finding of fact by the Upper Tribunal could in these circumstances be binding as a "precedent" it was clearly open to the judge to prefer the evidence of Dr Harrison to the evidence put forward by the Secretary of State. I consider that given the failure to challenge that evidence that the judge's reasoning for preferring her evidence was sufficient and that accordingly it was open to the judge to find that the Secretary of State had not established the burden as identified in SM & Qadir at [68]. The reasoning is I consider adequate and sufficient and it is on the evidence put before that judge a sustainable conclusion.
9. Further, the judge set out at [51] to [53] further reasons why he conceded that it had not been demonstrated that the appellant had cheated using a TOEIC test.
Notice of Decision
10. Accordingly, for these reasons I consider that the decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

No anonymity direction is made.

Signed Date: 11 October 2016

Upper Tribunal Judge Rintoul