Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34479/2015
IA/34481/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 April 2017

On 20 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

ABID TUFAIL
SOMIA ABID
(ANONYMITY DIRECTION NOT made)

Respondents

Representation

For the Appellant: Mr M. Iqbal, Counsel instructed by Reliance Solicitors
For the Respondents: Mr P. Nath, Home Office Presenting Officer

DECISION AND REASONS

1. The first respondent (hereinafter “the claimant”) is a citizen of Pakistan born on 4 September 1974. The second respondent is his dependent wife.

2. On 28 July 2013 the claimant applied for leave to remain in the UK as a Tier 4 (General) student migrant under the Points Based System. For the purposes of the application, he submitted a TOEIC certificate from Educational Testing Service (“ETS”).

3. ETS declared the test to be invalid, on the basis that that the certificate was obtained fraudulently by the use of a proxy test taker. Relying on the information provided by ETS, the Secretary of State refused the claimant’s application under paragraph 322(1A) of the Immigration Rules. The application was also refused on the basis that the claimant did not have a valid Confirmation of Acceptance of Studies (“CAS”), as his sponsor was not registered.

4. The claimant appealed to the First-tier Tribunal, where the appeal was heard by Judge Herbert. In a decision promulgated on 14 October 2016, the judge found that the claimant had not been dishonest and that, on the balance of probabilities, the test was taken properly and not by a proxy tester. He also found that as the claimant had not been warned that his sponsor had lost its licence he should have been given 60 days to locate another college.

5. The Secretary of State now appeals against the decision of the First-tier Tribunal.

6. The grounds of appeal argue that the judge’s reasoning to support the conclusion that the Secretary of State had not discharged the burden of proof is “entirely inadequate” and that he failed to assess correctly the burden of proof in line with SM and Qadir (ETS – Evidence – Burden of Proof) UKUT 00229 (IAC).

7. Before me, Mr Nath reiterated the points made in the grounds. Mr Iqbal argued that the grounds are misconceived as it is clear the judge has required the appellant to make his case. He argued that if there is an error in the decision, it is that the judge has placed too high a burden on the claimant, as at paragraph 14 the judge states the burden rests on him. Mr Iqbal also argued that the grounds are generic and do not properly engage with the decision.

Consideration

8. Decisions under paragraph 322(1A) require three steps. Firstly, the Secretary of State bears the initial burden, which is an “evidential burden”, of furnishing proof of deception. Secondly, if the Secretary of State provides prima facie evidence of deception, the burden shifts onto the claimant to provide a plausible innocent explanation. Thirdly, if the claimant does this, then the burden shifts back to the Secretary of State. See SSHD v Shehzad [2016] EWCA Civ 615, SM and Qadir and Shen (Paper Appeals: Proving Dishonesty [2014] UKUT 236 (IAC).

9. In Shehzad and SM and Qadir consideration was given as to whether the generic witness evidence about ETS fraud proffered by the Secretary of State (which was similar to that which was before the First-tier Tribunal in this appeal) was sufficient to discharge the initial evidential burden and it was concluded that it was.

10. The judge’s decision is consistent with Shehzad. Firstly, although it is not stated explicitly in the decision, the judge accepted that the initial evidential burden was met such that an innocent explanation from the claimant is required. At paragraph 19, the judge considered the claimant’s “innocent explanation” and found that his English language qualifications, as set out in paragraphs 15 – 16 of the decision, provided this. It then fell to the Secretary of State to discharge the legal burden of proving dishonesty. Given the only evidence adduced by the Secretary of State was the generic witness evidence, the judge concluded the burden had not been discharged.

11. Although brief, it is clear from the decision both why the judge has found there to be an innocent explanation by the claimant (his academic achievements in English) and why the Secretary of State has not discharged the burden of proof (an absence of any evidence other than the “generic” evidence). I am satisfied, therefore, that the judge has not only applied the burden of proof correctly but has also given adequate reasons to explain the decision.

Decision
A. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
B. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 18 April 2017