Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/33804/2015
IA/33805/2015
IA/33806/2015
THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 24 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

(1) C
(2) K
(3) C
(anonymity direction MADE)
Respondents

Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondents: Mr P Turner of Counsel, instructed by Gross & Co Solicitors

DECISION AND REASONS

1. These are appeals against the decisions of First-tier Tribunal Judge A E Walker promulgated on 14 September 2016 allowing the linked appeals of the C family.

2. Although before me the Secretary of State for the Home Department is the Appellant and the C family members are the Respondents, for the sake of consistency with the proceedings before the First-tier Tribunal I shall refer hereafter referred to the family as the Appellants and the Secretary of State as the Respondent.

3. The Appellants are husband and wife (born respectively on 17 December 1977 and 30 December 1985), and their daughter (born in the UK on 23 December 2010). The First Appellant arrived in the United Kingdom in November 2006 with leave to remain until September 2008 as a working holidaymaker. In due course he obtained leave to remain as a work permit holder until 21 October 2013. The Second Appellant arrived in the United Kingdom on 10 March 2010 with entry clearance as a dependant of her spouse and for a period in line with her husband’s then extant leave. The Third Appellant was born in the UK and she was granted leave to remain on 29 March 2011 in line with her parents.

4. The current proceedings arise out of an application by the First Appellant for leave to remain as a Tier 1 (Entrepreneur), the Second and Third Appellants being included in that application as his dependants. The joint applications were initially refused by the Secretary of State on 3 February 2014; appeals to the IAC were allowed by First-tier Tribunal Judge Archer on 28 August 2014 (refs. IA/08751, 08757 and 09761 of 2014). The appeals were allowed by Judge Archer to the extent that the Appellants’ joint application remained outstanding before the Secretary of State and required to be considered.

5. The joint applications was again considered by the Respondent and the First Appellant’s application was refused for reasons set out in a combined Notice of Immigration Decision and ‘reasons for refusal’ letter dated 22 October 2015 with reference to paragraphs 322(1A) and 245DD(a) and (c). The Second and Third Appellants’ were refused ‘in line’, with reference to paragraphs 319C and 319H respectively.

6. The Respondent’s decision in respect of the First Appellant was based on a conclusion that he had used a proxy sitter to take English language tests on his behalf and in consequence the TOEIC certificate showing results for tests taken in speaking and writing on 18 April 2012 was a false document such as to engage paragraph 322(1A), resulting in a mandatory refusal and moreover the award of 0 points in respect of the English language requirement for a Tier 1 (Entrepreneur).

7. I pause to note that the effect of the Respondent’s decision appears to be that no substantive consideration was given to the entrepreneurial aspects of the application with reference to paragraph 245DD(h); (see also paragraphs 245DD(i) and (l)).

8. The Appellants again appealed to the IAC.

9. The First-tier Tribunal Judge allowed the Appellants’ appeals for reasons set out in his Decision and Reasons. The Judge found that the First Appellant had not used a proxy sitter and allowed the appeal under the Immigration Rules. I pause to note that in doing so the Judge gave no indication that she was alert to the fact that aspects of the Appellants’ application were left unresolved, and gave no indication that she understood that the consequence of her decision was that in effect the Appellants’ application remained outstanding and required to be determined by the Respondent in accordance with the law and Rules applicable.

10. Be that as it may, the Judge also made reference in the decision to the particular circumstances of the Third Appellant and specifically that she had recently been diagnosed as autistic, was receiving specialist input by way of speech therapy and other support, and that her parents were concerned about the availability of suitable facilities and support in India, particularly as they hailed from a rural area.

11. It is to be noted that the Judge made findings favourable to the Appellants in this regard at paragraph 41 both in respect of the “enormous” and “potentially catastrophic” impact of removal of the Third Appellant and that “autism is not well-known or well dealt with in the rural area where they would be required to live because they would have to rely on the resources of their families who live in rural areas”.

12. In reliance upon these findings the Judge went on to conclude that were the Third Appellant to be removed, the speech and other special needs tuition that she was receiving would cease and “this would have a severe and adverse effect on her development and wellbeing”. However, whilst this would appear to encapsulate an assessment of the Third Appellant’s best interests, the Judge did not go on to consider any of the usual balances in respect of proportionality and moreover expressly stated at paragraph 42: “I make no ruling with regard to human rights as the appeals are met by the success under the Rules”.

13. The Respondent sought permission to appeal which was granted by Designated First-tier Tribunal Judge Woodcraft on 11 January 2017.

14. In granting permission to appeal Judge Woodcraft appears erroneously to have been under the impression that the Judge had allowed the appeal not only by reference to finding that the First Appellant had not used a proxy sitter, but also because removal of the Third Appellant would be unduly harsh. Judge Woodcraft expressed surprise that this aspect of the decision had not been challenged by the Respondent. In the event, as may be seen from the observations I have already made, this aspect of the decision was not material to the outcome, and did not therefore require to be challenged. The focus of the Respondent’s challenge was in respect of the issue of the alleged use of a proxy sitter.

15. Nonetheless, and although, as may be seen in due course, ultimately this makes no difference, I comment at this juncture that for my own part it seems clear to me that the First-tier Tribunal Judge fell into error in considering the circumstances of the Third Appellant upon return to India by reference to the apparent poverty that she would face. This was to disregard completely the fact that if the family were to return to India the £200,000 that the First Appellant had indicated he had available to him - without any third party assistance - to invest in his proposed business in the UK would be available to establish the family in India. Were it necessary, this aspect of the case would require quite careful reconsideration against all of the relevant facts and circumstances.

16. The Respondent was granted permission to appeal on the basis that it was considered arguable that the Judge had not engaged with the fact that the First Appellant had taken three sets of tests at different times, and each of them had been declared invalid. Judge Woodcraft granted permission to appeal on all grounds, but in the course of determining the application for permission observed that some of the grounds appeared to amount largely to a disagreement with the result rather than demonstrating an arguable error of law.

17. Permission having been granted on all grounds, Mr Clarke did not expressly abandon any of them, but neither did he seek to develop the first three grounds which are set out at paragraphs 4, 5 and 6 of the Secretary of State’s application. It seems to me that whilst those grounds may have some substance in isolation they are each of them essentially seeking really to re-argue the case rather than identifying a particular error of law.

18. In this regard I note the following:

(i) At paragraph 4 of the Respondent’s Grounds issue is taken with the Appellant’s account of what happened at the English language test centre being accepted by the First-tier Tribunal Judge in the absence of any corroboration. As has been pointed out during the course of the hearing, the Judge noted in the Decision that in fact the Appellant was not cross-examined in this respect.

(ii) At paragraph 5 of the Grounds issue is taken with the Appellant’s familiarity with Portsmouth, the venue of the test centre. It is suggested that certain answers he gave during the course of the hearing indicated that he either did not know the test centre, or did not know the town well. It seems to me that those are matters that fall well short of amounting to error of law.

(iii) At paragraph 6 of the Grounds the Respondent raises an issue with regard to the Judge having expressed herself satisfied that the Second Appellant had accompanied the First Appellant to Portsmouth, and the Respondent suggests that this does not in any way preclude the use of a proxy test taker. Whilst on its face this is factually correct, it seems to me that the Judge’s comments and observations in this regard in the body of the Decision are essentially contextual and part of an overall evaluation of the case. Any particular comment such as is identified in the Grounds does not, in my judgment, in isolation give rise to any concern about the Judge having made an error of law.

19. For my own part, I struggle to see why an individual applicant’s ability to relate a journey to the test centre, or to describe the facilities at the test centre, or indeed to give an account of the nature of the tests undertaken there, is of any particular value one way or the other in determining whether or not a proxy sitter was used in the examination. As I understand the methods used by those wishing to use a proxy sitter, it still necessitates attendance at the test centre for the purposes of identification; in this context it may be recalled from the Panorama documentary that brought most of these cases to light, that the proxy sitter would sit at the desk with the real examinee standing next to them whilst the examination took place. It follows that an ability to relate the journey, and an ability to relate the facilities at the test centre, is hardly an indication one way or the other to rebut an allegation that a proxy sitter was used.

20. Be that as it may, I need to consider the particular circumstances of this case, and to do so in the context of consideration of error of law, not as a first instance decision-maker. Accordingly, I come now to a consideration of those areas that the Secretary of State places particular reliance upon before me.

21. Mr Clarke emphasises that on the very particular facts of this case the Appellant had actually been shown on the ETS records to have taken examinations on three separate occasions, and each of those had returned an ‘invalid’ result in consequence of the fraud investigation conducted. It may be seen at Annex D1 of the Respondent’s bundle that the Appellant sat examinations at the Central Greenwich testing centre on 13 December 2011, again sat at the London College of Social Studies test centre on 21 March 2012, and in turn sat at the Portsmouth International College on 18 April 2012. Each of those examinations returned an invalid request on the ETS SELT Source Data.

22. As Mr Clarke points out, the other two earlier tests were not themselves the basis of the invocation of paragraph 322(1A), because it is a requirement of paragraph 322(1A) that false representations or false documents or information be submitted, whether material or not, in the context of an application. It was only the test results from the Portsmouth test centre that were submitted in support of the Appellant’s Tier 1 (Entrepreneur) application - and so the Portsmouth results were the only matters that expressly informed the Respondent’s decision.

23. However, Mr Clarke submits that the fact that two earlier tests had been taken which returned invalid results was a relevant consideration to an evaluation of whether the Appellant had employed dishonesty in respect of the test certificate submitted in support of his application. It is against this submission that I must turn to a consideration of how the First-tier Tribunal Judge approached the matter.

24. The first thing to observe is that at paragraphs 11 through to 13 the Judge directed herself to the cases of SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC) and Secretary of State for the Home Department v Shehzad & Anor [2016] EWCA Civ 615. No criticism has been made in respect of the Judge’s setting out of the applicable law, guidance, and tests in those paragraphs.

25. Indeed, when one considers the Judge’s findings from paragraph 34 onwards it is clear that she is essaying findings that follow that guidance in that she first of all considers the evidential burden that is on the Secretary of State, before going on, having found that it shifted, to consider the evidential burden that was thereafter on the Appellant. At paragraphs 34 and 35 the Judge makes reference to the supporting evidence from the Secretary of State, and at paragraph 36 concludes that she was satisfied on the submissions and evidence that the evidential burden shifted to the Appellant. At paragraphs 37 to 39 the Judge then goes on to set out her findings in respect of the Appellant’s so-called ‘innocent explanation’.

26. The Judge heard evidence from the First and Second Appellants, and at paragraph 37 declared herself to consider them “to be compelling witnesses” and that their evidence was “clear, detailed and consistent”. She then accepted that they had clearly visited Portsmouth and that she was satisfied that they knew Portsmouth well and that there was a valid explanation for the Appellant having travelled to a hearing centre not obviously in close proximity to his own home - in particular noting that the Appellant wanted to secure a quick retake of the tests that he had earlier failed.

27. The Judge also, at paragraph 38, gives quite considerable contextual weight to the Appellant’s experience of the English language. In this regard Mr Clarke points out that the Judge was hearing the Appellant give evidence in July 2016 which was some four years after the Portsmouth tests and getting on for four and a half to five years after the Central Greenwich tests. It was suggested by Mr Clarke that any impression that the Appellant gave at the hearing as to his command of English was hardly a reliable indicator of how his English might have been some years previously. However, it is clear that the Judge also had regard to the Appellant’s background and exposure to English during the course of his education. In addition to noting the Appellant’s coherence and fluency at the hearing the Judge said this: “I note that his education in India was in English in accordance with the letters I have seen referred to above. In addition I am satisfied on his evidence that these qualifications are recognised in the UK”.

28. Mr Turner has helpfully been able to take me to the relevant documents in the Appellants’ bundle in this regard, which demonstrate that he achieved a BA Honours degree in India which was recognised through the NARIC certification process as being equivalent to a British bachelor degree standard. It is also to be observed that he had qualifications in pharmacy and was an NHS approved pharmacist, working in the UK in that capacity for some five years. I am satisfied that the Judge gave appropriate weight to the circumstances of the Appellant’s language experience and that that was a relevant and appropriate matter to consider when evaluating the Appellant’s evidence in respect of his ‘innocent explanation’.

29. The particular point that Mr Clarke places emphasis on, as I say, is the submission that the Judge had failed to give proper or due regard to the invalidity of the previous two tests as being helpful indicators in evaluating dishonesty. In this regard the Judge says this at paragraph 38: “I note that in the ETS SELT documents all the tests that the Appellant took are marked as invalid”. In my judgment that is plainly a reference to the document at D1 to which I have already referred. The Judge continues:

“This means that even the tests that he failed are invalid. Whilst it is conceivable that someone who has failed the test might use fraud a second time I do not consider it likely that an applicant would use fraud for all tests they took especially as in the case of the First Appellant where they have some facility in English”.

30. In light of these passages Mr Clarke acknowledged that he could not submit that the First-tier Tribunal Judge had completely disregarded the other invalid tests. This means that the Respondent’s case really then becomes a question of whether the Judge’s consideration of those tests was adequate. In that regard in my judgement it was open to the Judge to have looked at the matter in the way that she did; I am not satisfied that it can be said that her consideration of those other tests was wrong to an extent that it amounts to an error of law. In reality the Judge had regard to the other invalid tests, but looking at all of the First Appellant’s evidence in the round - supported by the Second Appellant’s evidence - reached the conclusion that she was satisfied that the First Appellant had been able to offer an innocent explanation such that the issue of dishonesty could not be resolved against him.

31. In those circumstances I am satisfied that the First-tier Tribunal Judge reached a decision that was open to her on the evidence and cannot be vitiated for error of law.

32. However, for the avoidance of doubt I clarify that the consequence of the Judge’s conclusions in the appeal is that the First Appellant’s application for leave to remain as a Tier 1 (Entrepreneur), and the dependent applications of the Second and Third Appellants, remain outstanding and now require to be considered in accordance with the applicable Rules and law.

Notice of Decisions

33. The decisions of the First-tier Tribunal Judge contained no material error of law and stand, to the extent that the Appellants’ joint applications remain outstanding before the Respondent.

34. I repeat the anonymity direction that was made by Judge Walker.

35. In the light of my decision it is unnecessary to revisit the issue of the fee award.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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

The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.

Signed: Date: 23 March 2017

Deputy Upper Tribunal Judge I A Lewis