Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31535/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 16th January 2017
On 13th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

MUHAMMAD SHAFIQ
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Fraczyk of Counsel instructed by Sabz Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. On 23rd November 2016 Judge of the First-tier Tribunal C A Parker gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal M A Hall in which he dismissed the appeal against the decision of the respondent of 8th September 2015 to refuse to vary leave to remain as a Tier 4 Student for the appellant, a male citizen of Pakistan.
2. Judge Parker noted that the grounds of application alleged that the judge had improperly evaluated evidence concerning the respondent's allegation that the appellant had obtained a TOEIC English language certificate fraudulently by using a proxy test taker. Reliance was placed on the Upper Tribunal decision in SM and Qadir (ETS - evidence - burden of proof) [2016] UKUT 229 (IAC) on the basis that generic statements produced by the respondent did not discharge the burden of proof imposed upon her. In particular, it was alleged that the judge had failed to give adequate weight to the appellant's attempt to obtain evidence and recordings of his test with ETS and that the judge erred by relying upon two interviews with the appellant by the respondent when interview transcripts had not been produced. Additionally, the judge should have attached weight to the appellant's participation in the hearing in English and considered evidence of his English language proficiency by taking a City and Guilds test.
3. Judge Parker gave permission on the basis that it was arguable that, in assessing evidence concerning the allegation of fraud, the judge (paragraph 54) had correctly set out that it was for the appellant to provide a plausible explanation once the respondent had discharged the initial evidential burden, but the judge had failed to state that the burden then shifted to the respondent to discharge the burden of showing, to the civil standard, that the appellant used a proxy test taker when he sat his test.
The Hearing
4. At the commencement of the hearing Mr Bates handed over copies of the decision of the Court of Appeal in Shehzad and Anor [2016] EWCA 615 and the decision of the Upper Tribunal in MA (ETS - TOEIC testing) [2016] UKUT 00450 (IAC).
5. Mr Fraczyk made reference to paragraph 64 of Judge Hall's decision which, he thought, showed that the judge had conflated the second and third stage tests. There was no indication that the judge had taken into consideration that the burden shifted back to the respondent. He submitted that the judge may have had concerns about the explanation given by the appellant, but it was not open to him to say that an implausible explanation had been given. In particular, he thought that the judge had failed to give proper consideration to the matters referred to in paragraph 55 of the decision relating to the appellant's command of English at the Tribunal hearing. Further, Mr Fraczyk made reference to to the decision of the Upper Tribunal in Muhandiramge [2015] UKUT 00675 (IAC) at paragraph 10(b), which, he submitted, emphasised that the appellant's innocent explanation should satisfy "the minimum level of plausibility". If the judge had proceeded to the third stage of proof in which the burden transferred to the respondent then further defects in the respondent's case would have been revealed.
6. Mr Bates submitted that the judge had acknowledged the appellant's explanations but had reached the decision open to him that no plausible explanation had been given. Cogent reasons were given for this.
Conclusions
7. The President of the Tribunal made it clear in MA at paragraph 59 that there is a three stage evidential test in cases where the respondent has alleged that a TOEIC certificate has been obtained by deception. The Court of Appeal examined the three stage tests in Shehzad explaining the nature of the evidential burden at each stage. At paragraph 3 the Court of Appeal stated the following:
"3. It is common ground that for a decision to be made under paragraph 322(1A) there must be material justifying a conclusion that the individual under consideration has lied or submitted a false document. It is also common ground that the Secretary of State bears the initial burden of furnishing proof of deception, and this burden is an 'evidential burden'. That means that, if the Secretary of State provides prima facie evidence of deception, the burden 'shifts' onto the individual to provide a plausible innocent explanation, and that if the individual does so the burden 'shifts back' to the Secretary of State: ...".
8. Whilst in the earlier decision of the Upper Tribunal in Muhandiramge the president stated in paragraph 10(b) that the burden on the appellant of raising an "innocent explanation" amounts to "an account which satisfies the minimum level of plausibility", that explanation is not, in my view in conflict with the Court of Appeal decision which describes the burden on the individual "to provide a plausible innocent explanation". The key word is "plausible".
9. With the preceding guidance in mind, the main issue in this appeal is whether or not the judge was entitled, in paragraph 64 of the decision, to say that the appellant had not provided "a plausible innocent explanation" to answer the respondent's evidence indicating that a proxy took his ETS tests. If the judge provided cogent reasons for reaching that conclusion, then he had no need to proceed to the third evidential test where the burden shifted back to the respondent. By saying, in paragraph 64, that the respondent had satisfied the legal burden of proving that the appellant used deception to obtain his TOEIC certificate, the judge was not conflating the second and third tests but clearly indicating that the respondent had provided evidence which was capable of creating a prima facie case and the appellant had not given a plausible innocent explanation to answer that prima facie case.
10. The judge has given cogent reasons for reaching the conclusion that there was no need to proceed beyond the second stage evidential test. In doing so he took into consideration the fact that the appellant spoke English at the hearing, but pointing out, as he was entitled to, that the tests which were questioned had taken place over two years before. Further, as the judge correctly points out, the decision of the Upper Tribunal in SM and Qadir [2016] UKUT 229 (IAC) at paragraph 80, cautioned against placing substantial weight on an assessment of an appellant's English language proficiency based on performance at an appeal hearing. Further reasons are also given in subsequent paragraphs before the judge dismisses the appellant's explanations. Such reasons included the absence of evidence to show that the appellant was studying English prior to the questioned test and that the appellant had ceased his college studies in 2013 for medical reasons, only supported by a medical letter produced six months after the accident in which he was said to have been involved. The judge also draws attention to the appellant's acknowledgment that he had allowed a third party, described as an agent, to make arrangements for him to undertake an English language test in London, when the appellant lived in Stoke-on-Trent and had previously been enrolled in a college in Birmingham. Additionally, the appellant had been unable to give comprehensive information about how his course had been booked. The judge also refers to the City and Guilds certificate which, applying the guidance in Tanveer Ahmed [2002] UKIAT 00439, the judge found could not be relied upon for the cogent reasons given.
11. The decision of the judge does not, therefore, show that an error of law was involved in his careful examination of the evidence and rejection of the appeal on the basis that the appellant had not provided a plausible innocent explanation for the allegation by the respondent, supported by evidence, that the English language test was taken by a proxy.

Notice of Decision

The decision of the First-tier Tribunal does not show an error of law and shall stand.

Anonymity

An anonymity direction was not made by the First-tier Tribunal nor do I consider one appropriate before the Upper Tribunal.

Signed Date

Deputy Upper Tribunal Judge Garratt