Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34488/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd February 2017
On 7th February 2017

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

muhammad asif khan
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Z Malik of Counsel
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Barber promulgated on 9 August 2016, in which his appeal against the Respondent's decision to refuse his application for further leave to remain as a Tier 4 student dated 18 November 2015 was dismissed.
2. The Appellant is a national of Pakistan, born on 10 October 1985, who first arrived in the United Kingdom with valid entry clearance as a student on 22 January 2011 with leave to remain granted to 22 June 2012. The Applicant applied for further leave to remain in the United Kingdom as a student which was initially refused but the Appellant successfully appealed against the refusal in a decision promulgated on 13 June 2013. That left the initial application outstanding before the Respondent, the refusal of which is the subject of this appeal.
3. The Respondent refused the Appellant's claim on the basis that he submitted a TOEIC certificate from the Educational Testing Services ("ETS") with his application which was fraudulent, the test results being invalid on the basis that a proxy test taker was involved. The application was therefore refused under paragraph 322(1A) of the Immigration Rules. The Appellant appealed on the basis that the decision was not in accordance with the Immigration Rules (as he had not used deception in his application) and was in any event contrary to Article 8 of the European Convention on Human Rights, relying on his relationship with his partner in the United Kingdom.
4. Judge Barber dismissed the appeal under the Immigration Rules on the basis of findings that the Appellant did not sit the English language test and therefore applied deception in his application. The appeal was also dismissed on human rights grounds.
The appeal
5. The Appellant appeals the decision of Judge Barber only in relation to the Immigration Rules (there is no appeal against the dismissal on human rights grounds) on four grounds. First, that Judge Barber misdirected himself as to the Respondent's legal burden of proof in deception cases. Secondly, that there was a lack of reasons given for the rejection of the Appellant's evidence. Thirdly, that the Judge took into account an irrelevant consideration, namely that answers to questions about the English language test were freely available on the internet. Finally, the Judge failed to take into account relevant considerations, namely that the Appellant had completed English language courses and received qualifications from them, that he was of good character and had an established family life in the United Kingdom.
6. Permission to appeal was granted by Judge of the First-tier Tribunal Keane on the basis that there were arguable errors of law in relation to the burden of proof applied by Judge Barber and taking into account irrelevant considerations.
7. At the hearing, Counsel for the Appellant referred to paragraph 57 of the Upper Tribunal's decision in SM and Qadir v Secretary of State for the Home Department ETS - Evidence - Burden of Proof) [2016] UKU 00229 (IAC) which, referring back to Shen (Paper Appeals: Proving Dishonesty) [2014] UKUT 236 (IAC), sets out the three stages of burden of proof as follows:
(a) First, where the Secretary of State alleges that an applicant has practised dishonesty or deception in an application for leave to remain, there is an evidential burden on the Secretary of State. This requires that sufficient evidence be adduced to raise an issue as to the existence or non-existence of a fact in issue: for example, by producing the completed application which is prima facie deceitful in some fashion.
(b) The spotlight thereby switches to the applicant. If he discharges the burden - again an evidential one - of raising an innocent explanation, namely an account which satisfies the minimum level of plausibility, a further transfer of the burden of proof occurs.
(c) Where (b) is satisfied, the burden rests on the Secretary of State to establish, on the balance of probabilities, that the Appellant's prima facie innocent explanation is to be rejected.
8. Counsel submitted that it was at the second stage of this process that Judge Barber erred in misdirecting himself that the Appellant must show an innocent explanation, rather than needing to show only a plausible explanation which the Appellant did. The Judge was then required to go on to the third stage and determine whether the Respondent met the legal burden.
9. In response, the Home Office Presenting Officer submitted that there was no misdirection in law and Judge Barber followed the three stage approach confirmed in SM and Qadir, it was just that on the facts he did not find that there was an innocent explanation such that it was not necessary to go on to the final stage. Judge Barber assessed the evidence before him and gave reasons as to why it was rejected.
10. The second issue was as to whether Judge Barber took into account an irrelevant consideration, namely an internet search. Counsel for the Appellant submitted that there was no basis for this finding and nothing to suggest that it was put to the Appellant. It is objectionable if Judge Barber conducted his own research on the internet before the hearing without putting it to the Appellant or after. On either eventuality, an irrelevant consideration was taken into account which was material as it was the sole reason given for the Appellant's account being rejected.
Findings and reasons
11. There is no dispute in this appeal that Judge Barber properly directed himself to the first stage question as to whether the Respondent had satisfied the initial evidential burden and correctly found that she had on the basis of what is known as the generic evidence relating to ETS fraud and a document showing the Appellant's test as invalid. In paragraph 6, Judge Barber goes on to identify that the second stage is for the Appellant to show an innocent explanation for the status of his TOEIC as invalid. That is a lawful direction in accordance with the staged approach set out in SM and Qadir and I do not find that findings and conclusions that follow in paragraphs 7 and 8 show any error of law in the application of that second stage. On any view, the Appellant had not given an 'innocent explanation' which met the minimum level of plausibility. In his written statement, he had simply denied using deception. In oral evidence, he answered a small number of questions about his test in a way which was vague and he could not give any explanation as to why ETS had invalidated his scores, nor had he made any efforts to contact ETS to challenge that. In the circumstances, the Appellant's evidence amounted to little more than a bare denial which Judge Barber did not accept, to the correct standard and burden of proof and with sufficient reasons, met the second stage of an 'innocent explanation'. As such, there was no need to go on to consider the third stage and lawful to conclude that the Respondent had met both the evidential and legal burden to establish deception. I do not find any misdirection or material error of law in this regard.
12. On the second issue, I find that it is an error of law for the First-tier Tribunal to have taken into account that answers were 'freely available on the internet' as there is nothing to suggest that this was in evidence before Judge Barber nor that it was put to the Appellant in the course of the hearing. However, I do not find that this was a material error of law. This was not the sole reason why Judge Barber found that the Appellant did not sit the test. In addition, in paragraph 7, Judge Barber found that the Appellant's answers to what the test involved and where it was were 'very vague' and that the Appellant had done nothing to challenge the position with ETS or to substantiate that it was him that took the test and not a third party as alleged. Further, in paragraph 8, it was noted that there was no 'innocent explanation' as to why the ETS system had shown the Appellant's results as invalid other than that there must have been some mistake. These findings, taken together, show that sufficient reasons were given by Judge Barber for the conclusion that the Appellant did not sit the test, regardless of whether some of his oral evidence was freely available on the internet. The consideration of internet research in these circumstances, although an irrelevant consideration, was not material to the outcome of the appeal under the Immigration Rules.

Notice of Decision

The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such is not necessary to set aside the decision.

The decision to dismiss the appeal is therefore confirmed.

No anonymity direction is made.

Signed Date 6th February 2017

Upper Tribunal Judge Jackson