Tribunal decisions

The decision

IAC-AH-cj-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38960/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th March 2017
On 4th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

the Secretary of State for the Home Department
Appellant
and

Meer Wais Islam
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr P Singh, Senior Home Office Presenting Officer
For the Respondent: Mr M Aslam, of Counsel instructed by Sadozai Solicitors

DECISION AND REASONS
Introduction and Background
1. The Secretary of State appealed against a decision of Judge Telford of the First-tier Tribunal (the FtT) promulgated on 28th July 2016.
2. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to him as the Claimant.
3. The Claimant also appealed against the decision of the FtT.
4. The Claimant is a male citizen of Afghanistan born 1st January 1967. On 17th October 2012 he applied for a Tier 1 (Entrepreneur) visa which was granted on 5th November 2012, valid until 5th March 2016. He first entered the United Kingdom pursuant to that visa on 19th January 2013. Prior to this visa being granted, the Claimant had been granted visas enabling him to visit the United Kingdom.
5. On 25th September 2014 the Claimant was re-entering the United Kingdom at London Heathrow when he was questioned. An Immigration Officer had concerns as records showed that in order to obtain the Tier 1 visa, the Claimant had submitted a TOEIC certificate issued by Educational Testing Service (ETS). The Claimant was given twenty days’ temporary admission, and was interviewed on 2nd October 2014.
6. Following the interview the Secretary of State refused the Claimant leave to enter the United Kingdom. This was because it was contended that the TOEIC certificate issued by ETS, had been fraudulently obtained. The Secretary of State indicated that ETS had confirmed that the Claimant had not undertaken the English language test, but the test had been undertaken by a proxy. ETS had cancelled the Claimant’s test results, and declared them to be invalid.
7. The Secretary of State relied upon paragraph 321A(1) contending that the deception carried out by the Claimant in submitting a fraudulently obtained TOEIC certificate amounted to a change in circumstances since he was given leave, so that the leave should be cancelled. Reliance was also placed upon paragraph 321A(2) on the basis that false representations had been made or false documents submitted in relation to the application for leave. The Claimant was refused leave to enter the United Kingdom, and his existing leave cancelled.
8. The Claimant’s appeal was initially heard by Judge Malone of the FtT on 29th June 2015 and allowed. That decision was subsequently set aside by the Upper Tribunal following a hearing on 25th February 2016 because of error of law, and the appeal remitted back to the FtT to be heard afresh.
9. The FtT heard the appeal again on 15th June 2016 and found that the appeal should be allowed under paragraphs 320 and 321 of the Immigration Rules, and dismissed with reference to paragraph 276 of the Immigration Rules, and with reference to Article 8 outside the Immigration Rules. The reference to paragraph 276 should presumably be a reference to paragraph 276ADE. The reference to paragraph 320 is unclear, as that paragraph had not featured in the Secretary of State’s refusal.
10. The FtT decision caused both parties to apply for permission to appeal to the Upper Tribunal. The Secretary of State contended that the FtT had committed a material misdirection of law with reference to paragraph 321A, and was wrong to find that the evidence which was provided to prove that the Claimant had used deception to obtain a TOEIC certificate was insufficient and reliance was placed upon Shehzad and Chowdhury [2016] EWCA Civ 615. It was contended that the evidential burden of proof had been satisfied by the generic evidence provided by the Secretary of State, that being the witness statements of R Collings and P Millington both dated 23rd June 2014, together with an ETS printout that related specifically to the Claimant, confirming that his test results had been invalidated.
11. The Claimant also applied for permission to appeal noting that the FtT had dismissed the appeal with reference to paragraph 276 and Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention). It was contended that the FtT had erred by finding that the Claimant had no evidence to show that he was competent in the English language as the Claimant had produced evidence that he had passed an English language test in May 2016. In addition the FtT had not taken into account that the Claimant had given evidence in English. Permission to appeal was granted to both parties by Judge Parkes of the FtT.
Error of Law
12. At a hearing before me on 6th January 2017 I heard submissions from both parties regarding error of law. Reliance was placed upon the grounds upon which both parties had been given permission to appeal. I set out below my conclusions and reasons for finding an error of law and setting aside the decision of the FtT;
21. I deal first with the application made by the Secretary of State. I find that the FtT erred in law for the following reasons.
22. I am satisfied that witness statements made by M Harold dated 25th June 2015, and R Collings and P Millington both dated 23rd June 2014 were before the FtT. Also before the FtT was a printout produced by ETS confirming that the test taken by the Claimant at New College, London had been declared invalid.
23. It is correct that the witness statements contained within the Secretary of State’s bundle are incomplete, but I am satisfied that complete copies of those witness statements were before the FtT. The witness statements are referred to in the earlier FtT decision made by Judge Malone at paragraph 24, and were before the Upper Tribunal at the hearing on 25th February 2016 which set aside Judge Malone’s decision.
24. I note the absence of any reference to Qadir by the FtT. The Upper Tribunal decision was published on 13th May 2016 to give guidance on evidence and burden of proof in ETS cases. I set out below the first paragraph to the headnote;
“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.”
25. The generic evidence referred to in Qadir, was the witness statements made by R Collings and P Millington, together with an ETS printout that related to the two Appellants.
26. The decision in Qadir was approved by the Court of Appeal in Shehzad and Chowdhury, although that decision was not published until 29th June 2016, after the FtT decision was heard, but before it was promulgated.
27. I therefore conclude that the FtT erred in finding that the witness statements of M Harold, R Collings, and P Millington, which are generic evidence, combined with the specific evidence relating to the Claimant, that being the ETS printout confirming the invalidity of his test results, did not discharge the evidential burden upon the Secretary of State. The FtT has not adequately explained why it was appropriate to depart from the guidance given in Qadir and Shehzad and Chowdhury. The FtT therefore adopted an incorrect approach to assessing the evidence which amounts to a material error of law and means that the decision of the FtT is set aside.
28. I do not find that the grounds submitted by the Claimant specifically challenge the findings made by the FtT in relation to Article 8 and the Claimant’s family and private life. The grounds submitted by the Claimant relate to a finding by the FtT that the Claimant did not at the date of decision, have evidence to prove that he was competent in English.
29. I do not find that the FtT erred in considering Article 8. The Claimant had ample opportunity to place before the FtT comprehensive evidence of his family and private life but did not do so. In relation to Article 8, the FtT reached a decision which was open to it upon the evidence, and did not materially err in law.
30. The decision needs to be re-made. I do not find it appropriate to remit this appeal back to the FtT. There have already been two hearings before the FtT.
31. In my view the fair and appropriate course is to have a further hearing before the Upper Tribunal so that the decision can be re-made. As I do not find that the FtT erred in considering Article 8, the hearing before the Upper Tribunal will relate to whether or not the Secretary of State was correct to refuse the Claimant leave to enter the United Kingdom and to cancel his leave with reference to paragraph 321A(1) and (2). Although the FtT refers to paragraph 320, my interpretation of the Secretary of State’s decision, is that although there was reference to paragraph 320(7A) this was not relied upon in the refusal, but the parties are entitled to make submissions upon that point if it is contended that paragraph 320(7A) was relied upon.
13. The hearing was adjourned so that evidence could be given to the Upper Tribunal, in order for the decision to be re-made.
Re-making the Decision – Upper Tribunal Hearing 24th March 2017
14. The Claimant attended the hearing. It was confirmed that he would be giving oral evidence, and there was no need for an interpreter.
15. I made the parties aware of the documentation that the Tribunal had received. There had been no further documents submitted since the error of law hearing had taken place. The Tribunal had on file the following documentation;
Home Office bundle with Appendices A–I;
Witness statement of M Harold dated 25th June 2015 to which there is attached an ETS printout;
Witness statements of R Collings and P Millington dated 23rd June 2014;
Claimant’s bundle attached to a letter dated 9th June 2015 (this should presumably be dated 9th June 2016) without an index, containing 21 pages;
Claimant’s bundle prepared for Upper Tribunal hearing on 25th February 2016 containing pages 2–17 and Appendices E and F, and Claimant’s witness statement dated 15th February 2016;
Claimant’s bundle received at Taylor House on 19th January 2015 comprising 68 pages.
16. Mr Aslam produced a witness statement prepared by the Claimant dated 10th March 2017. Mr Aslam asked whether the Tribunal had received evidence that the Claimant had passed an English language test with Trinity College London on 18th May 2016, and I confirmed that evidence of this was in the 21-page bundle.
17. Both representatives confirmed that paragraph 320(7A) was not relevant and that the issues in the appeal related to the provisions of paragraph 321A(1) and (2). Both representatives were in agreement that the generic evidence produced by the Secretary of State was sufficient to discharge the evidential burden, and therefore there was an evidential burden on the Claimant to raise an innocent explanation.
18. The representatives indicated that they were ready to proceed and there was no application for an adjournment.
The Claimant’s Oral Evidence
19. The Claimant, giving his evidence in English, adopted the contents of his witness statement dated 10th March 2017 which is briefly summarised below.
20. The Claimant confirmed that when returning to the United Kingdom on 25th September 2014 he was questioned at Heathrow Airport. He was interviewed again on 2nd October 2014.
21. The Claimant denied being in any way dishonest in relation to the English language test, contending that he had taken the test, and no proxy test taker had been involved.
22. He pointed out that he had now passed a further English language test in May 2016. He contended that this proved that he had taken the ETS English language test in 2012.
23. The Claimant made reference to the distress and upheaval which these proceedings had caused to himself, his family and his business. He has been unable to travel to visit his mother in Afghanistan. He has two daughters at school in this country, and his eldest daughter is a student, but the immigration status of his children is uncertain due to these proceedings. The Claimant stated that he is suffering from severe anxiety and depression.
24. The Claimant contended that the witness statements relied upon by the Secretary of State did not relate to him, and did not prove that he had been dishonest. He did not accept that the ETS printout was evidence that he had not taken the English test.
25. The Claimant contended that he attended the test centre and undertook the ETS test in all four components.
26. The Claimant was not questioned by Mr Aslam. He was cross-examined and I have recorded all questions and answers in my Record of Proceedings and it is not necessary to reiterate them in full here. If relevant I will refer to the oral evidence when I set out my findings and conclusions.
The Secretary of State’s Submissions
27. Mr Singh relied upon the Secretary of State’s decision dated 2nd October 2014, together with the Explanatory Statement, the witness statements, the interview record and the ETS printout.
28. Mr Singh submitted that it was accepted that the evidential burden upon the Secretary of State had been discharged, and the Claimant had not provided a plausible innocent explanation, as to why ETS found that a proxy test taker had undertaken his test.
29. With reference to the English test undertaken and passed in May 2006, I was asked to note the length of time that had elapsed between the ETS tests in April and May 2012, and May 2016. I was asked to dismiss the Claimant’s appeal.
The Claimant’s Submissions
30. Mr Aslam accepted that the evidential burden upon the Secretary of State had been discharged. I was asked to find that the Claimant had given a plausible innocent explanation, and therefore the legal burden of proof which remained upon the Secretary of State, had not been discharged, and the Claimant’s appeal should be allowed.
31. In summary, I was asked to note that in October 2014 the Claimant had been interviewed in English, and he had readily answered questions and had not been evasive. He had given a plausible explanation in that his brother had arranged the college, and he had given details of the test, commenting upon the number of people who had attended.
32. I was asked to find that there was no adequate reasons for concluding that the interview suggested that the Claimant had not undertaken the ETS English language test. If I accepted that the Claimant had given an innocent and plausible explanation, I was asked to find that the Secretary of State had not discharged the legal burden of proof, and therefore the Claimant’s appeal should be allowed.
33. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
34. I have taken into account all the evidence placed before me, and taken into account the submissions made by both representatives.
35. The issue that I have to consider relates to the Respondent’s decision dated 2nd October 2014 which was refused pursuant to paragraph 321A(1) and (2) which I set out below;
321A The following grounds for the cancellation of a person’s leave to enter or remain which is in force on his arrival in, or while he is outside, the United Kingdom apply;
(1) there has been such a change in the circumstances of that person’s case since the leave was given, that it should be cancelled; or
(2) false representations were made or false documents were submitted (whether or not material to the application, and whether or not to the holder’s knowledge), or material facts were not disclosed, in relation to the application for leave; or in order to obtain documents from the Secretary of State or a third party required in support of the application.
36. The burden of proof in relation to paragraph 321A(1) and (2) is on the Secretary of State and the standard is a balance of probabilities.
37. In considering the particular issue of whether or not the Claimant undertook the ETS English language test in April and May 2012 or whether another person took some or all of that test for him, I follow the guidance in relation to the burden of proof, contained in Shehzad and Chowdhury, which considered the Upper Tribunal decision in SM and Qadir (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC). I set out below paragraphs 21 and 22 of Shehzad;
21. For present purposes, it is significant that in Qadir the Tribunal stated (at [67]–[68]) that the evidence of Mr Millington and Ms Collings sufficed to shift the evidential burden onto the person whose leave had been curtailed. In that case, there was no submission that their evidence did not discharge the evidential burden lying on the Secretary of State at the initial stage. The Tribunal described the threshold which an evidential burden entails as a “comparatively modest threshold” and stated that “by an admittedly narrow margin, we are satisfied that the Secretary of State has discharged this burden” and that the effect “is that there is a burden, again an evidential one, on the Appellants of raising an innocent explanation”. The Tribunal then considered the evidence before it and reached the conclusion that the Secretary of State had not discharged the legal burden of proof that lay on her.
22. As I have stated, the question in these appeals only concerns the initial stage and whether, with the evidence of Mr Millington and Ms Collings, the evidential burden on the Secretary of State is satisfied. If it is, it is then incumbent on the individual whose leave has been curtailed to provide evidence in response raising an innocent explanation.
38. The evidence in this case relied upon by the Secretary of State, is the same as relied upon in Qadir, as it is the witness statements of Mr Millington and Ms Collings, together with an ETS printout that relates specifically to the Claimant. It is conceded, and rightly so, that this evidence is sufficient to discharge the evidential burden on the Secretary of State, and therefore the evidential burden shifts to the Claimant, to raise an innocent explanation. If such an innocent explanation is given, the legal burden of proof remains on the Secretary of State to prove deception, and that the Claimant did not undertake the English language test, but that somebody else undertook it on his behalf.
39. The college which administered the ETS tests in this case is New London College, Hounslow. The Claimant has produced two TOEIC certificates. The first relates to a test undertaken on 10th April 2012. This relates to listening and reading, and the Claimant’s score was 495 and 465 respectively, making a total of 960 out of a possible 1,000. This is a very high score.
40. The second certificate produced relates to a test taken on 15th May 2012 in which the score was 180 out of 200 for speaking, and 190 out of 200 for writing, again a very high score.
41. The printout produced by ETS records two tests, the test dates being 17th April 2012 and 15th May 2012. The printout confirms that both results have been declared invalid by ETS on the grounds that there was a proxy test taker. There was no reference in the printout to the test taken on 10th April 2012.
42. It appears that the speaking and writing test was therefore taken twice, once on 17th April 2012, and again on 15th May 2012. This is indicated in the Respondent’s Explanatory Statement at paragraph 18 where it is recorded that the Claimant had taken the test twice, having failed it once. This is further supported by a receipt produced by the Claimant at page 12 of the 68-page bundle, which is dated 30th May 2012 and issued by New London College, and refers to a fee due for a re-sit examination. The Claimant did not mention re-sitting a test in his evidence, and it appears that he was not asked about this in interview.
43. As it is accepted that the Secretary of State has discharged the initial evidential burden, I must now consider whether the Claimant has satisfied the evidential burden of providing an innocent explanation, as to why the evidence from ETS would indicate the use of a proxy test taker.
44. I take into account that the Claimant has always maintained that he took the tests, and that there was no proxy test taker. I note that neither party has produced any independent expert evidence, as to whether the person who undertook the speaking test was the Claimant or not.
45. I note that the Claimant has not produced satisfactory evidence, independent of the ETS test result, to prove his level of English in April and May 2012 when the tests took place. The Claimant was asked about this in interview and he said that he had studied in Afghanistan and Pakistan since he was 20 years of age. He also said that he had experience speaking with his children, one of whom had passed the test for a student visa. The Claimant has however produced no evidence to support his explanation. I am not suggesting that there is a legal requirement of corroboration, but there is a burden upon the Claimant to provide an explanation, and I note the absence of any documentary evidence to indicate that he had studied English prior to taking the ETS language test. There is no satisfactory evidence to show that the Claimant had studied English while at school, or that he had undertaken any courses or studies in English prior to taking the ETS English test.
46. When interviewed the Claimant stated that he had not chosen New London College as a test centre because his brother, who is settled in the United Kingdom, chose it for him and booked the tests, and therefore he was unable to give any further details on this point. The Claimant was staying with his brother in North London, and it was put to him that the college was some distance from where he was staying and he was asked about this, but responded that he could not give any further information as the choice of test centre had been the responsibility of his brother. I note that his brother was not called to give evidence before the Upper Tribunal, although he had given evidence before the First-tier Tribunal. The Claimant’s brother had prepared a witness statement at page 10 of the 68-page bundle which is very brief and confirms that he invited the Claimant to visit the United Kingdom, and thereafter the Claimant decided to invest some money in a business. The statement confirms that the brother helped the Claimant establish his business, and “also helped my brother with his studies and he was granted leave to enter the UK as Tier 1 Entrepreneur”. The witness statement contains no confirmation from the Claimant’s brother that he chose the test centre, or why he chose the test centre, and does not confirm that he carried out all the arrangements.
47. When interviewed, the Claimant was asked what score he had achieved in the tests and he did not know. When asked how long between the tests, he said it was either two weeks, or twenty days, or a month. The Claimant did explain in general terms, how the tests were administered, although he did not remember exactly the duration of the tests, believing that they lasted twenty or 30 minutes.
48. I take into account the passage of time between April and May 2012 when the tests were taken, and the interview in October 2014. I would however have expected the Claimant to be able to give more detail about the tests than he was able to provide.
49. I take into account that the Claimant in October 2014 was interviewed in English, and that in May 2016 he has provided evidence that he has passed an English language test. However, I do not attach significant weight to this, as I am considering his ability in English at the time the ETS test was taken. The Claimant has now been resident in the United Kingdom since January 2013. He has therefore had ample opportunity to improve his English.
50. Having assessed and weighed up the evidence in the round, I do not find that the Claimant has produced sufficient evidence to discharge the evidential burden upon him, and I do not find that he has provided an innocent explanation, as to why the evidence from ETS indicates the use of a proxy test taker in his case.
51. I therefore conclude that the Secretary of State has discharged the legal burden of proof in this case, and I am satisfied that deception was used to obtain the TOEIC test results, and that a proxy test taker was used. Therefore I conclude that the Secretary of State was correct to refuse the Claimant’s leave to enter the United Kingdom on 2nd October 2014
52. The Claimant’s appeal must therefore be dismissed. Article 8 was not in issue before the Upper Tribunal, as the findings made by the First-tier Tribunal in relation to Article 8, were not successfully challenged and were preserved.
53. The conclusion is that the Secretary of State has discharged the burden of proof in relation to paragraph 321A(1) and (2) and the decision is not a disproportionate breach of Article 8 of the 1950 European Convention on Human Rights.
Notice of Decision

The decision of the First-tier Tribunal contained an error of law and was set aside.

I substitute a fresh decision. The Claimant’s appeal is dismissed.

Anonymity

No anonymity direction was made by the First-tier Tribunal. There has been no request for anonymity made to the Upper Tribunal and I see no need to make an anonymity order.

Signed Date 29th March 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The Claimant’s appeal is dismissed. There is no fee award.

Signed Date 29th March 2017

Deputy Upper Tribunal Judge M A Hall