Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44915/2014

THE IMMIGRATION ACTS

Heard at Field House
On 17 March 2016
Decision & Reasons Promulgated
On 12 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and
MR ZAHEER ARIF
(No anonymity order made)
Respondent

Representation:

For the appellant: Mr S Walker, Home Office Presenting Officer
For the respondent: Ms J Victor-Mazeli of Counsel

DECISION AND REASONS

Rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008
1. On 20 April 2016, my decision in this appeal was promulgated and I remitted this appeal to the First-tier Tribunal. However, I erroneously recorded in my decision that there was no appearance for the claimant when in fact Ms Victor-Mazeli of Counsel appeared for the claimant at the hearing. It was also recorded in my decision that the claimant did not give evidence before the First-tier Tribunal when in fact he and his spouse provided written witness statements.
2. Rule 43(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 states that the Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and remake the decision or the relevant part of it, if the Upper Tribunal considers that it is in the interests of justice to do so and one or more of the conditions in paragraph (2) are satisfied. One of these conditions, in paragraph (2)(d), is where there has been some other procedural irregularity in the proceedings.
3. A letter dated 3 May 2016 from Buckley's Solicitors requests that my 20 April 2016 decision be set aside under rule 43. I consider this letter as the claimant's application to set aside the decision. It is established in Jan (Upper Tribunal: set aside powers) [2016] UKUT 00336 (IAC) that the Upper Tribunal's powers to set aside its own decisions are limited to those in rules 43 and 45-6 of the Upper Tribunal Rules. Paragraph 7 of Jan states that the power under rule 43 is limited to cases where the decision to be set aside is one which disposes of proceedings and where the decision is to be set aside for procedural reasons.
4. I find that the matters referred to in paragraph 1 above amount to a procedural irregularity, and I find it is in the interests of justice to set aside the 20 April 2016 decision and remake the error of law decision as follows.
Error of law decision and reasons
5. The appellant in this appeal is the Secretary of State. The claimant is Mr Arif, a national of Pakistan born on 13 April 1983.
6. The Secretary of State appealed to the Upper Tribunal against the determination of First-tier Tribunal Judge McDade allowing the claimant's appeal against the decision of the Secretary of State refusing him further leave to remain in the United Kingdom as a Tier 4 (General) Student, under the points-based system pursuant to paragraph 321A of the Immigration Rules.

7. First-tier Tribunal Judge PJM Hollingworth granted the Secretary of State permission to appeal in a decision dated 19 January 2016, stating that it is arguable that an error of law has arisen in relation to the construction placed by the First-tier Tribunal Judge on the evidence made available by the Secretary of State.

First-tier Tribunal Judge's findings

8. The First-tier Tribunal allowed the claimant's appeal for the following reasons which I summarise:

The Secretary of State has completely failed to identify precisely what wrongdoing they allege of the claimant. It is said that the claimant sat three tests; two are marked "questionable" and the other is marked as invalid. The burden is clearly on the Secretary of State to prove exactly what this claimant was alleged to have done wrong.
Time and time again appeals are brought on the same bases as this without cogent evidence to prove the case to the requisite standard, namely the balance of probabilities. If a computer system throws up irregularity in relation to a voice that appears to have been used in a number of different tests and this voice does not accord with the claimant's voice, there was no reason why such evidence could not be put in a form that can be presented to the Judge at the hearing. Such evidence would then surely show, one way or the other, whether the allegation of fraud was well-founded.
The Home Office fell far short of discharging its burden of proof.

9. The First-tier Tribunal Judge allowed the appeal stating that the Secretary of State's decision is not in accordance with the law and the applicable Immigration Rules.

Grounds of appeal

10. The Secretary of State in her grounds of appeal states as follows. The First-tier Tribunal Judge made a material error of law in the determination by stating that the Secretary of State has not discharged the burden of proof in demonstrating that this claimant used deception. The First-tier Tribunal Judge's reasoning for this is entirely inadequate.

The hearing

11. At the hearing I heard submissions from both parties as to whether there is a material error of law in the decision.

12. Mr Walker on behalf of the Secretary of State stated that the First-tier Tribunal Judge has not considered adequately that the English language test of the claimant was marked as "invalid". He further submitted that if the witness statements of Peter Millington, Rebecca Collings and Ms Singh which provided background information concerning the relationship between the Home Office and ETS and their interaction had been taken into account the First-tier Tribunal Judge may have come to a different conclusion. He further submitted that the ETS is an independent system and that it flags up results which have been taken by a proxy test taker.

13. Miss Victor-Mazeli on behalf of the claimant stated that the First-tier Tribunal Judge gave adequate reasons for his conclusions that the claimant had not taken the English language text by proxy. She stated that in deception cases the evidence provided by the Secretary of State must be cogent and independent not consist of mere suspicion as it is in the claimant's case.

Decision on error of law

14. The ETS entity is one of a small number of Home Office suppliers of so-called "Secure English Language Testing" ("SELT") and was appointed in 2011. The test is taken by an applicant who is notified by the ETS of the result and ETS issue a certificate which is then forwarded to the Secretary of State for further leave to remain.

15. In the recent case of SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT (IAC) it was stated in the headnote: "The generic evidence upon which the Secretary of State has relied to date in all ETS cases has been held insufficient to discharge the legal burden of proof on the Secretary of State of proving that the TOEIC certificates were procured by dishonesty in circumstances where this evidence, via expert evidence and otherwise, was demonstrated as suffering from multiple shortcomings and frailties and, further, the evidence of the two students concerned was found by the Tribunal to be plausible and truthful".

16. Subsequent to my initial decision, the case of Secretary of State for the Home Department v Shehzad and anor [2016] EWCA Civ 61 was decided. In this case it was found that the Secretary of State bears the initial burden of furnishing proof of deception, and that this burden is an "evidential burden". That means that if the Secretary of State provides prima facie evidence of deception, the burden shifts to the individual to provide a plausible innocent explanation and that if the individual does so the burden shifts back to the Secretary of State.

17. I find that the First-tier Tribunal Judge has made a material error of law by failing to properly reason why the witness statements provided by the Secretary of State do not discharge the requisite standard of proof, to the normal civil standard of balance of probabilities.

18. The witness statements make it clear that in order to be categorised as invalid on the spreadsheet provided to the Home Office, the case has to have gone through a computer program analysing speech and then two independent voice analysts. If all three are in agreement that a proxy has been used in the test, the test would be categorised as invalid.

19. The respondent provided three witness statements in support of the deception allegation and an ETS lookup tool document. The ETS lookup tool document shows the claimant's test has been characterised by ETS as invalid. The witness statements clearly state that tests are characterised as invalid where ETS are certain that there is evidence of proxy test taking or impersonation.

20. There was a failure by the First-tier Tribunal Judge to take into account all the evidence in the appeal, including the evidence of the claimant, and to give adequate reasons for why the Secretary of State had not discharged her burden of proof that the claimant used deception or whether the claimant has provided provide a plausible innocent explanation in his evidence.

21. I therefore find, in accordance with section 7. 2(b)(i) the Senior President's Practice Statement of 25 September 2012, that the appeal requires judicial fact-finding in that the claimant's and his spouse's evidence should be considered by the First-tier Tribunal, together with the other evidence including the three witness statements provided by the Secretary of State.
22. The re-making of the decision on appeal will be undertaken by a First-tier Judge in the First-tier Tribunal (other than First-tier Tribunal Judge McDade) on a date to be fixed.

DECISION

23. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of an error on a point of law. I set aside the previous decision.
The decision will be remade in the First-tier Tribunal on a date to be fixed.

Signed by Dated: 12 August 2016
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Deputy Upper Tribunal Judge Chana