Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/35781/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 May 2016
On 26 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Mr ANOUSH SHA TAMIZ
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Malhotra, counsel instructed by Westbrook Law Ltd.
For the Respondent: Mr Stefan Kotas, Home Office Presenting Officer

ERROR OF LAW DECISION & REASONS
1. The Appellant is a national of India, born on 27 May 1974. He arrived in the United Kingdom with entry clearance as a Tier 4 student from 19 December 2011 until 28 November 2012. His leave was subsequently extended until 26 September 2016. On 15 September 2014, the Respondent issued a cancellation of leave decision at Heathrow Terminal 4, upon the Appellant's return to the United Kingdom, on the basis that Home Office records indicated that the English language test certificate used in support of his application had been fraudulently obtained. The Appellant appealed against this decision and his appeal came before Judge of the First-tier Tribunal Cohen for hearing on 2 September 2015.
2. The Appellant gave evidence in English before the Judge and was cross-examined. In a decision promulgated on 10 September 2015, the Judge dismissed the appeal. He did not accept the credibility of the Appellant's account at [17]-[20] and found the affidavit evidence of Rebecca Collings and Peter Millington "compelling" on the basis of which he found that the Respondent had discharged the burden of proof placed upon her in respect of an allegation of deception [22]. Consequently, he dismissed the appeal.
3. The Appellant sought permission to appeal and following a refusal of permission by the First tier Tribunal, renewed grounds were submitted to the Upper Tribunal which asserted inter alia that the Appellant was professionally qualified in India having completed his studies in English for 17 years and had no need of a proxy; it was unfair for the Respondent to conclude that the Appellant used deception or fraud as the Respondent in her own statement concluded that she was unable to verify the test result; the Respondent's decision was based on assumption and generic information; no corroborative evidence was produced to substantiate the claim that the Appellant used a proxy test taker and the mere fact that the test was invalidated does not provide an element of fraud. No material evidence was produced to show that the fraud did occur.
4. In a decision dated 14 April 2016, permission to appeal was granted by Upper Tribunal Judge Reeds on the basis that:
"The decision to cancel leave to remain was taken in light of the cancellation of his English language test result by the test provider (ETS). In the light of the recent decision of the Upper Tribunal (the President and Deputy Upper Tribunal Judge Saini) in the decision of SM and Ihsan Qadir the grounds are arguable where it is asserted that the judge wrongly relied upon the generic evidence submitted by the Secretary of State. Permission is granted on all grounds."
5. In a rule 24 response dated 20 April 2016, the Respondent submitted that the First tier Tribunal Judge had not dismissed the appeal merely on generic evidence and it cannot reasonably be said that generic evidence together with other evidence cannot be taken into account in determining an appeal. It was apparent from [17]-[20] that Judge Cohen had made a number of negative credibility findings and considering the evidence in the round he dismissed the appeal.
Hearing
6. At the hearing before me, Ms Malhotra sought to rely upon the grounds of appeal and then proceeded to make submissions in respect of the credibility findings of the First tier Tribunal Judge. The Appellant was asked about the TOEIC test in July and August 2013, however, it is correct he has two certificates to prove this as he took it in both July and August 2013. Consequently, no weight could be placed on the Judge's finding at [17] that his evidence was discrepant in this respect. The Judge also found the Appellant's evidence to be vague and unimpressive in respect of his description of the college and the test. What the Appellant states is that he explained where the college was and how he got there and that he took the 2 components of the test. She submitted that this was rather a flimsy objection on the part of the Judge. In respect of the finding at [18] as to why the Appellant went to London when he lived in Cambridge, she submitted that this was very much an outside issue and the core of the issue is whether he sat the test and his level of English. Ms Malhotra submitted that these were the only two reasons the Judge found against the Appellant and this was not enough in assessing whether or not he would be motivated to do the TOEIC. At no point in his decision had the Judge considered the evidence which he found very compelling at [21]. This Appellant has had all his education in English and French in South India: Madras University in English and Masters in Commerce in English and in 2012, most tellingly, Anglia Ruskin University accepted him on a Business Management course, which he passed. The Appellant then studied in English for an 18 month MSc. He failed one module but obtained a post graduate diploma. Ms Malhotra emphasised that all the Appellant's education has been in English, at a level which is complex and sophisticated and he degrees and Masters degrees from India and the United Kingdom. She submitted that the Judge at no point considered this very important evidence.
7. Mr Kotas submitted that the grounds of appeal amounted to no more than a disagreement with the Judge's reasoning. He submitted that the decision was not solely based on the generic evidence of Mr Millington and Ms Collings but the fact that in the Appellant's witness statement he does not give a detailed explanation in response. The Judge has given reasons for his decision viz that the Appellant did not know what TOEIC stood for; the fact he travelled to London when there were centres on his doorstep and he gave a vague account. The Judge has not solely relied on the reasons of the Secretary of State and his decision was neither irrational nor perverse and the Judge was entitled to come to the conclusions he did.
8. In her response, Ms Malhotra submitted that the appeal could not properly considered absent the decision in Qadir and the impact upon the Judge's finding at [21] regarding the "compelling evidence" put forward on behalf of the Home Office. She submitted that the Judge has given a lot of importance to this evidence and his reasons for rejecting the Appellant's account are flimsy viz his supposed lack of clarity regarding the tests he had taken and his description of the college. She submitted that the Judge should have made an assessment of the standard of the Appellant's English and his particular demeanour and profile but erroneously failed to do so because he had been compelled by the evidence of the Home Office.
Decision
9. I found a material error in the decision of First tier Tribunal Judge Cohen and remitted the appeal back to the First tier Tribunal for a hearing de novo. In SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC) promulgated on 21 April 2016, the Upper Tribunal held as follows:
"(i) The Secretary of State's generic evidence, combined with her evidence particular to these two appellants, sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty.
(ii) However, given the multiple frailties from which this generic evidence was considered to suffer and, in the light of the evidence adduced by the appellants, the Secretary of State failed to discharge the legal burden of proving dishonesty on their part."
10. I find that the First tier Tribunal Judge materially erred in failing to give proper consideration to the particular facts of this case viz the fact that the Appellant had been educated to beyind degree level in English in India and had undertaken both a Business Management course and a post graduate degree in English in the United Kingdom.
11. In light of the decision by the Upper Tribunal in SM and Qadir that the generic evidence relied upon by the Secretary of State contained "multiple frailties" I find that the First tier Tribunal Judge erred materially in law in considering that this evidence was sufficient for the Secretary of State to discharge the legal burden of proving dishonesty on the part of the Appellant, in light of my finding at [10] above.
12. The appeal is allowed to the extent that it is remitted back to the First tier Tribunal for a further hearing.

Deputy Upper Tribunal Judge Chapman

12 May 2016