Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36337/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 October 2016
On 15 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

MIHINDUKULASOORIYA JUDE GAYAN PEIRIS
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Kannangara, of Counsel (Direct Access)
For the Respondent: Ms Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is the Appellant's appeal against the decision of Judge of the First-tier Tribunal M Dennis (hereafter "the Judge") promulgated on 10 May 2016.

Background
2. The Appellant is a national of Sri Lanka born on 21 November 1984. He entered the UK as a student on 17 November 2008 valid to 28 February 2011 and was granted further leave to remain in the same capacity until 18 December 2012. He was subsequently granted further leave to remain as a Tier 1 Entrepreneur until 24 June 2016. On 9 September 2014, the Appellant was stopped at Heathrow airport, returning from a short visit to Sri Lanka, and refused leave to enter as it was believed that he obtained and used a false English Language certificate to support an application made on 24 June 2013 with a view to obtaining leave to remain as a Tier 1 Entrepreneur. The Appellant was, however, granted temporary admission to appeal the decision.
The Decision of the Judge
3. The appeal came before the Judge for oral hearing on 25 September 2015. The parties were represented and the Judge heard evidence from the Appellant and received submissions on behalf of both parties. At the end of the hearing the Judge reserved his decision for written determination which was given in a decision promulgated on 10 May 2016 dismissing the appeal.
4. The Judge considered the oral and documentary evidence which included inter alia a copy of the Appellant's landing card, witness statements of Rebecca Collings, Peter Millington and Matthew Harold, various printouts purporting to confirm the Appellant's test result had been invalidated by ETS, Immigration Officer's Explanatory Statement, the Appellant's witness statement together with a TOEIC Official Score Report.
5. It was the Respondent's case before the Judge that the information provided by ETS shows that the Appellant's speaking test had been taken by a proxy test taker. The Appellant denied using a proxy. He confirmed that he had not committed deception at the time of his Tier 1 extension application and he undertook the English language test himself.
6. In a comprehensive decision the Judge concluded that the Secretary of State had discharged the onus upon her to establish that the Appellant had perpetrated a deception. The Judge considered the responses given by the Appellant at the airport; his witness statement together with his claims at interview and his oral evidence, and noted various inconsistencies and disparities. The Judge considered it improbable that the Appellant could not remember the test centre or the year, month or season that he took the test and thus rejected his evidence that he had informed the Immigration Officer at port that he took the test in July 2012 [9]-[11]. The Judge considered that these omissions were fatal to the Appellant's appeal [12]. The Judge went on to assess other aspects of the Appellant's evidence and found his claim to have engaged the services of a consultant to register for the test was highly implausible [15].
7. In his omnibus conclusion the Judge wrote inter alia as follows at [16]:
"Thus, viewing all of these parts of the Appellant's evidence together, I am satisfied to the high end of the balance of probabilities, that he did not sit the examination on 17 July 2012?and thus that the results of the Respondent were fraudulently obtained and unreliable."
And then wrote inter alia in conclusion at [17] as follows:
"While I might not have concluded that the Respondent could have carried the burden of proof, to whatever extent it may have it, on the basis of these witness statements and the data printouts alone in the face of strong, credible and reliable evidence to the contrary from the Appellant, in the particular circumstances, as noted above, I am satisfied that the Appellant's own evidence must been seen as confirming the conclusions of the Respondent. For these reasons, the appeal falls to be dismissed."
8. The Appellant sought permission to appeal which was granted by Judge Saffer on 21 September 2016.
Decision on Error of Law
9. The case before the Judge involved an assertion made by the Respondent that the Appellant had deployed deception in the taking of an English language test (TOEIC) administered by ETS, one of the few suppliers used by the Respondent as an out-sourced provider of such tests worldwide. As a consequence the Respondent cancelled the Appellant's leave and refused leave to enter following his return from Sri Lanka after a short holiday on 9 September 2014. The evidence produced by the Respondent was essentially that outlined in [4] above. The Judge made a series of clear and unequivocal adverse findings as to the Appellant's credibility over paragraphs [9] to [17] of his decision which I have summarised above.
10. The grounds raise a "concern" as to whether the excessive delay in preparing the decision "would have affected the decision-making". Nothing more is said. I note the delay is a period of seven months from the hearing of the appeal in September 2015 to promulgation of the decision in May 2016. The Judge apologised for the delay and explained that this was on account of his ill-health. While it is unfortunate that the decision did not come to be written until some seven months after the hearing, I drew Mr Kannangara's attention to the authorities of Secretary of State for the Home Department v RK (Algeria) [2007] EWCA Civ 868 and Arusha and Demushi (deprivation of citizenship - delay) [2012] UKUT 00080 (IAC), from which it is clear that there must be a nexus between the delay and the safety of the decision. I observed that I could not readily identify a causal link between the delay and the Judge's adverse credibility findings. In this regard Mr Kannangara submitted that his only concern was "how fresh the evidence was in the Judge's mind when he reached his decision".
11. In my judgement is entirely apparent from a holistic reading of the decision that the Judge did take full account of all the evidence. Indeed the Judge said at [3] that:"I have read and considered all of the evidence before me, including my verbatim notes of the testimony of the Appellant at the hearing together with the submissions made on behalf of both parties in reaching my decision." The Appellant does not contend that his evidence was not accurately recorded or that any part of it was not considered by the Judge. I have carefully examined the Judge's decision and I am satisfied that Mr Kannangara has failed to show, indeed he does not purport to show, any nexus between the delay and the safety of the decision. I acknowledge the Judge fell far short of timeliness, but injustice to the Appellant has not resulted. Just as in RK (above), where the Court of Appeal declined in the event to overturn the impugned determination despite the delay in promulgation, in the present appeal I find that the delay has not affected the Judge's credibility assessment or his general approach to the case. There is no material error of law.
12. While I do not uphold the Appellant's complaint in respect of the above, I am satisfied that the grounds in other respects disclose an error on a point of law such that the decision must be set aside. My reasons are as follows.
13. There are difficulties in the manner in which the Judge dealt with the "veritable boomerang of proof" applicable in deception cases: see SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC) at [10]. While the Judge did not have the benefit of the guidance given by the Tribunal therein (it was decided after the hearing of the Appellant's appeal albeit it had been reported before the Judge signed off his decision), the Tribunal endorsed the approach taken in the case of Shen (papers appeals: proving dishonesty) [2014] UKUT 00236 at [22] and [25] that the Secretary of State bears the initial evidential burden of furnishing proof of deception and if satisfied the burden shifts onto the individual to provide an innocent explanation, and if the individual does so the burden shifts back to the Secretary of State to discharge the legal burden. It is common ground that the standard of proof is the balance of probabilities (SM Qadir at [58]). In view of the legal framework within which the allegation of deception is to be assessed it is necessary to analyse the Judge's overall approach.
14. At [8] the Judge said:
"In the ordinary course of events, the burden of proof will lie with an appellant to demonstrate on the balance of probabilities, he is entitled to the leave to remain he seeks. Here, however, the Respondent has asserted that the Appellant submitted fraudulent documentation to obtain that leave. There continues to be a distinct lack of clarity in respect of such circumstances as to whether the Respondent needs only introduce a prima facie showing of a factual basis for such an assertion or whether, once having asserted it, the burden fully shifts to the Respondent to prove the allegation rather than to the Appellant to disprove it. I am satisfied that on careful consideration of all evidence before me that in this particular case this is a distinction without a difference. I am satisfied to the high end of the balance of probabilities the Respondent has made out its case that the Appellant used a fraudulently obtained test score to support his application for leave to remain as an entrepreneur. I am, however, equally satisfied that the Appellant has failed to carry any burden of proof which might be deemed to be upon him to demonstrate he actually undertook all parts of the TOEIC examination at issue."
And at [16] said:
"Thus, viewing all of these parts of the Appellant's evidence together, I am satisfied to the high end of the balance of probabilities, that he did not sit the examination?"
And in conclusion at [17] said:
"I have considered the arguments to be made against relying exclusively upon the Respondent's witness statements and the ETS assessments. Here, however, those form a secondary level of evidence. It would be entirely appropriate to consider that they were sufficient to raise the issue of the Appellant's possible deception, but the Appellant's own evidence has not only failed to overcome such a preliminary doubt but has, in my opinion, only confirmed it.??..While I might not have concluded that the Respondent could have carried the burden of proof, to whatever extent it may have it, on the basis of these witness statements and the data printouts alone in the face of strong, credible and reliable evidence to the contrary from the Appellant, in the particular circumstance, as noted above, I am satisfied that the Appellant's own evidence must be seen as confirming the conclusions of the Respondent."
15. These passages reveal difficulties with the Judge's application of the shifting burden of proof and indeed the standard of proof in such cases. The Judge does not set out in clear unequivocal terms that the initial burden is an evidential one that rests on the Secretary of State, and that she only bears the legal burden once the Appellant has raised an innocent explanation. It is difficult to discern why the Judge believed the applicable principles were unclear given hitherto the Tribunal's jurisprudence on the point: SM Qadir [57]. I agree with the submission of Mr Kannangara that the suggestion that "strong credible and reliable evidence" is required to counter the allegation places the bar too high when, all the Appellant is required to do so is to advance an innocent explanation. Furthermore, I am satisfied that the Judge plainly erred in assessing the evidence to the "high end of the balance of probabilities". There is no such sliding scale on the spectrum of proof. The submission of Ms Brocklesby-Weller that the Judge's application of a higher standard of proof only prejudiced the appraisal of the Respondent's evidence [8] cannot stand given the same terminology is used in the Judge's conclusions following his analysis of the Appellant's evidence [16].
16. In summary I find a material error of law has been committed in this case. I find the Judge has misdirected himself as to where the burden and standard of proof lay and that he applied an impermissibly high standard of proof. There is no higher standard of proof required to prove deception other than the civil standard, namely the balance of probabilities. In a case where an allegation is levied against the Appellant with serious consequences, the legal framework in which the appeal is to be determined is of such fundamental importance that the decision cannot be allowed to stand.

Decision
17. The decision involved the making of an error on a point of law and is set aside pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Owing to the nature of the fact-finding required I remit the case for a hearing before the First-tier Tribunal by a Judge other than Judge M Dennis.
No anonymity direction is made.

Signed Dated

Deputy Upper Tribunal Judge Bagral