Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/41052/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 August 2016
On 15 August 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Mr EMMANUEL ADENIYI SANUSI
(aNONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr C Appiah, Counsel, instructed by The Legal Resources Partnership

DECISION AND REASONS

The Appellant
1. The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal, that is Mr Sanusi as the appellant and the Secretary of State as the respondent.
2. The Secretary of State challenged the decision of First-tier Tribunal Judge Newberry in a decision promulgated on 8 February 2016 whereby he granted the appeal of the appellant was born on 29 December 1983 and a national of Nigeria. The appellant had appealed against the Secretary of State's refusal to grant him further leave to remain as a spouse of Abosede Tololupe Akinwumi, a British subject settled in the United Kingdom in a decision on 27 September 2014. The refusal letter set out that the appellant had entered the UK on 1 May 2009 as a student and made subsequent applications in order to extend his leave. On 30 June 2014 he submitted an application for further leave to remain as a spouse of a settled person and that case was considered under Appendix FM and paragraph 276ADE. It was concluded, however that the suitability requirements namely S-LTR2.1, under which an applicant will normally be refused on the grounds of suitability if any of the paragraphs S-LTR2.2 to 2.4 applies. S-LTR2.2 included whether
"to the applicant's knowledge or not false information representations document have been submitted!"
3. The Secretary of State concluded that the appellant had submitted, in support of his application, a test certificate from ETS and during an administrative review process ETS confirmed that his test certificate was obtained through deception. The letter of refusal stated
"Because the validity of your test results could not be authenticated your scores from the test taken on 3 July 2013 have been cancelled. You are specifically considered a person who has sought leave to remain in the United Kingdom by deception following information provided to us by Educational Testing Service but an anomaly with your speaking test indicated the presence of a proxy test taker."
4. It was therefore considered he did not meet the suitability requirements for consideration of limited leave to remain in the United Kingdom as a partner under E-LTRP or on the grounds of private life under paragraph 276ADE.
5. First-tier Tribunal Judge Newberry noted the witness statements provided by the Secretary of State namely that of Mathew Harold Rebecca Collings and Peter Millington but noted at paragraph 14 it was not possible to understand "what the administrative review is from this document or how to determine why the test was invalid". As such, he allowed the appeal.
6. The Secretary of State challenged this on the basis that the First-tier Tribunal Judge had failed to provide adequate reasoning for finding that the respondent had failed to discharge the requisite burden of proof submitting that the judge's findings were inadequately reasoned. The judge had not properly taken into account the documents provided by the Secretary of State. The judge should not have relied on the second test taken by the appellant to show that he had not practised deception.
7. Mr Clark's submission was that it was not surprising that the judge approached the case in the way that he did but in the light of the authorities of SM and Qadir (ETS - Evidence -Burden of Proof) [2016] UKUT 229 (IAC) and Muhammed Shehzad [2016] EWCA Civ 615 his approach was clearly an error. Both those cases were indicative of the weight that should be accorded to the evidence of the Secretary of State and there are now authorities as to how the case should have been approached.
8. Mr Appiah submitted that the judge's approach and consideration of the second English language test undertaken by the appellant was crucial and significant in the sense that it accorded with the approach required.
Conclusions
9. The First-tier Tribunal Judge's reasons were set out at paragraphs 13-44 and observed that the burden of proof rested on the decision maker and that had not been discharged. The judge considered the evidence relied on by the respondent and concluded that the evidence was too general in its form and substance and considered that it amounted to no more than bare assertions in circumstances which were unacceptable.
10. It is clear in Muhammad Shehzad and Secretary of State for the Home Department as to the weight to be given to the Secretary of State's witnesses, Mr Millington and Miss Collings, and at paragraph 26 it is stated
"But whatever the reasons in these circumstances in my judgement the in limine rejection of the Secretary of State's evidence is even sufficient to shift the evidential burden was an error of law."
11. The judge, however, promulgated his decision on 8th February 2016 and prior to both SM and to Shehzad and as indicated by the judge at [36], R (Gazi) V SSHD (ETS- Judicial Review) IJR [2015] EWCA 784 was critical of the Secretary of State's evidence. The judge followed that decision as can be seen at paragraph 36 of his decision.
12. Within the evidence provided to the First-tier Tribunal by the Secretary of State there was indeed an ETS SELT source data in respect of this particular appellant in relation to his test at the Universal Training Centre on 3 July 2013 which marked his test as 'invalid'. The judge at paragraph 14 does, contrary to the challenge, refer to this document and took it into account although commenting
"It is not possible to understand what the administrative review is from this document or to determine how or why the test was invalid".
13. The key point is that although the judge did not accept the strength of the Secretary of State's evidence in the first instance, in the light of all the circumstances as can be seen from paragraph 37, the judge addressed all the evidence in the round, identified that the appellant had been invited to sit an alternative test prior to the decision and within 3 days of the initiation the appellant managed to sit a test and pass it with distinction.
14. The judge appears to have stated that the second test taken by the appellant was taken on 3 July 2013 but that would appear to be an error and merely a transposing error in the typing. The judge was aware that the test was taken later. The judge recorded at paragraph 33 that respondent had the retest certificate document two months before issuing the refusal letter. Although this does not necessarily determine whether the appellant had in fact used a proxy tester, the judge in the circumstances concluded that he had not. He noted that the appellant had taken the test immediately on being asked and had passed with distinction. That was a finding open to the judge.
15. The challenge by the Secretary of State was in relation to adequacy of reasoning and this challenge cannot be substantiated in this particular decision. The judge went into great detail in an analysis of the specific facts and evidence of this case, had regard to the certificate given by ETS and took into account the further evidence provided by the appellant by way of discharging the evidential burden. That is in line with the later authority of SM Qadir, and, R (Gazi), which was in existence at the date of decision, was critical of the Secretary of State's evidence.
16. As SM, which had not been promulgated states

68. As our analysis and conclusions in the immediately preceding section make clear, we have substantial reservations about the strength and quality of the Secretary of State's evidence. Its shortcomings are manifest. On the other hand, while bearing in mind that the context is one of alleged deception, we must be mindful of the comparatively modest threshold which an evidential burden entails. The calls for an evaluative assessment on the part of the tribunal. By an admittedly narrow margin we are satisfied that the Secretary of State has discharged this burden. The effect of this is that there is a burden, again an evidential one, on the Appellants of raising an innocent explanation.
17. The evidence produced by the appellant was produced in response to a letter dated 30 June 2014 from the Secretary of State to the appellant inviting him to take a fresh test from an authorised provider and the judge found that a certificate was issued on 8 July 2014 and that the respondent had this document two months before issuing the refusal letter. There was no suggestion that the appellant's second test was obtained by deception and that he was well able to pass the second test albeit a year later. I am persuaded that the judge gave detailed reasoning for rejecting the Secretary of State's evidence in the first instance although the subsequent caselaw has somewhat changed the landscape it is still open to an appellant to be able to find that the appellant had discharged the evidential burden of proof. His reasoning in this regard was brief but adequate in the circumstances Shizad (sufficiency of reasons: set aside) [2013] UKUT 00085 (IAC).
18. The refusal decision was based on the suitability of the appellant and in this particular provision SLTR2.2A is discretionary. If that provision were the provision that was mandatory then the judge would have no option but to refuse the appeal. However, it is quite clear from paragraphs 39 to 40 that the judge did not accept that the appellant failed to meet the grounds of suitability and the Secretary of State had exercised her discretion incorrectly. This is because the Secretary of State herself invited the appellant to take a fresh English test from an authorised provider, which the appellant did, and the respondent had this document prior to issuing the refusal letter. Albeit that the judge may have, in hindsight, and with the benefit of caselaw later decided, have had an altered approach to the Secretary of State's evidence, it is quite clear that the judge gave adequate reasoning for finding the appellant had produced evidence in support of a rebuttal of the Secretary of State's evidence, having complied with the Secretary of State's request to take a further test which he passed with distinction.
19. In these specific circumstances, I find there is no material error of law in the decision of the First-tier Tribunal. The judge proceeded to consider the remaining grounds for the appellant's eligibility under Appendix FM which the appellant fulfilled. I therefore find that the decision of Judge Newberry contains no error of law and shall stand.

Signed Date 12th August 2016

Upper Tribunal Judge Rimington