Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32270/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 November 2016
On 11th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

F K
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: Mr B Hoshi, Counsel, instructed by Mishcon de Reya

DECISION AND REASONS
1. I shall refer to FK as the Appellant in this case and the Secretary of State as the Respondent for ease of reading.
2. The Appellant's appeal against her cancellation of leave was heard by First-tier Tribunal Judge Porter and in a decision promulgated on 4th April 2016 she concluded that the Respondent had not satisfied the burden of proof to establish that the Appellant had obtained her English language certificate dishonestly. She therefore allowed the appeal under the Immigration Rules.
3. The Grounds of Appeal refer to the bundle of documents lodged by the Respondent including witness statements from Mr Peter Millington and Ms Rebecca Collings and a witness statement from Ms Sonia Poulter. The evidence was clear that the test sat by the Appellant was "invalid" and as such there was evidence of proxy test taking or impersonation. The Tribunal had failed to provide adequate reasons for its findings to the contrary. As such the decision should be set aside. Permission to appeal was granted.
4. A detailed Rule 24 response was lodged and it was said, in essence, that the judge had given numerous and good reasons for finding as she did. The Grounds of Appeal amounted to no more than a bare disagreement with the decision. Thus the case called before me on the above date.
5. For the Respondent Ms Isherwood referred me to SM and Qadir v SSHD (ETS - evidence - burden of proof) [2016] UKUT 00229 (IAC) and in particular to paragraphs 63 and 68 where it was said that the Secretary of State had discharged the evidential burden of proving deception. With reference to SM and MA (ETS -TOEIC testing) [2016] UKUT 00450 (IAC) the Secretary of State had proved deception and accordingly the decision should be set aside and the Appellant's appeal dismissed.
6. For the Appellant Mr Hoshi relied on and expanded upon the terms of the Rule 24 notice and with reference to the case law referred to in the Appellant's bundle. The Respondent was engaging in a simple quarrel with the judge who had given twelve discrete reasons why the appeal was being allowed. The Grounds of Appeal were silent on those reasons and given that there was no identifiable error of law. It was not enough for the Secretary of State to refer to well-known generic evidence when the judge had made detailed findings in an area of law where the President of the Tribunal had said that each case was fact specific - the case of MA above was based on very different facts. Given there was no error in law the decision must stand.
7. I reserved my decision.
Conclusions
8. I have to say that I consider there is no merit in this appeal by the Secretary of State. It maybe questioned why permission to appeal was granted in the first place as it was merely said that it was arguable that the judge had failed to give adequate reasons without giving any further specification for such a conclusion.
9. It is worthwhile referring to some of the findings of the judge, none of which were challenged in the Grounds of Appeal. In particular she did not consider that she could rely on the generic statements provided by the Respondent for the reasons stated in the judicial review case of Gazi (R (Gazi) v SSHD (ETS) - judicial review) (IJR) [2015] UKUT 00327 (IAC). She noted that the information stated to be contained in Appendix A attached to the statement of Ms Poulter was without any explanation or information that could establish that the Appellant's tests should be regarded as invalid. Rather the Appendix served to show that the tests were regarded as invalid but without further details or specification. In particular no explanation was offered as to why the official score report was only produced at the hearing and no reference and submissions were made to the fact that the photograph contained in the report was suggested in evidence as being that of the Appellant. The judge noted that the character of the Appellant had not so far been impugned and her immigration history was faultless.
10. The judge went on to accept that while it would have been preferable to have heard directly from the Appellant that was not possible owing to her health problems. She noted that the Appellant had previously attended at the court venue on a number of occasions.
11. Crucially she regarded the oral evidence of the two witnesses led at the hearing to be both credible and careful in their testimony and that criticisms of their evidence was speculative and "without merit". She considered that any alleged discrepancies between their oral testimony and their witness statements were minor and were explicable on the basis stated by the witnesses.
12. This evidence was central to the Appellant's success in the appeal. In particular the witness Ms Jilili stated that she had accompanied the Appellant to both her tests and that she had left the Appellant in the exam room (paragraph 18 of the judge's decision). The witness had confirmed that she had never had any suspicion that the Appellant had not undertaken the test. If this witness was speaking the truth, and the judge found she was, then that evidence was an extremely strong pointer indeed to the proposition that the Appellant had not dishonestly obtained an English language certificate. The judge gave clear evidence on why she was accepting the witness's evidence and the Grounds of Appeal simply ignore that finding. There is no error of law in the judge's approach to her finding that the witness' evidence was credible. As I say, that finding was not challenged in the Grounds of Appeal and nor was it challenged before me.
13. In these circumstances the judge was correct to find that she could not rely on the generic statements provided by the Respondent for the reasons she set out and with reference to the case of Gazi. As is now well established, each case in this area of law is fact specific - see the head note in MA above where the President said that the question of whether a person was engaged in fraud of this kind would invariably be "intrinsically fact sensitive". The Grounds of Appeal effectively ignore the judge's findings and as such do not disclose any arguable error in law. It follows that the decision must stand. I am making an anonymity direction, as requested, for reasons given by Mr Hoshi in his Rule 24 response. It was not suggested I should make a fee order and I follow what was said by Judge Porter in that regard.

Notice of Decision
14. The making of the decision by the First- tier Tribunal did not involve the making of an error on a point of law.
15. I do not set aside the decision.
Direction Regarding anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald

TO THE RESPONDENT
FEE AWARD

I make no fee award for reasons stated above.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald