Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/45716/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 February 2017
On 09 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Secretary of State for the Home Department
Appellant
and

BURHAN UDDIN AHMED
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Senior Home Office Presenting Officer
For the Respondent: Mr Z Khan, Counsel, instructed by Universal Solicitors

DECISION AND REASONS
1. I shall refer to the parties as they were before the First-tier Tribunal. Therefore the Secretary of State is the Respondent and Mr Ahmed is once more the Appellant.
2. This is an appeal by the Respondent against the decision of First-tier Tribunal Judge Cockrill (the judge), promulgated on 27 June 2016, in which he allowed the Appellant’s appeal. That appeal was against a decision of the Respondent dated 28 October 2014 in which his application for further leave to remain had been refused because of his alleged use of a fraudulently obtained English test certificate in a previous application.
3. The Appellant’s initial appeal against the Respondent’s decision was dismissed by a judge in a decision promulgated on 28 May 2015. The matter then went to the Upper Tribunal and the First-tier’s decision was set aside by Deputy Upper Tribunal Judge French in a decision promulgated on 15 December 2015. The matter was remitted to the First-tier Tribunal. It was there dealt with by Judge Cockrill. In his decision the judge confirmed that the issue before him was a narrow one, namely whether the original test certificate had been obtained by deception and whether or not S-LTR2.2 of Appendix FM applied or not. It was accepted by the Respondent that there were no other points taken against the Appellant (paragraph 44).
4. The judge referred to what he described as the “generic evidence” adduced by the Respondent in respect of the well-known ETS issue (see for example paragraph 40). The judge subsequently found that the Appellant had been a truthful witness (paragraph 56). Ultimately the judge concluded that the Respondent had failed to discharge the burden resting upon her and therefore the Appellant succeeded in his appeal.

The grounds of appeal and grant of permission
5. The Respondent’s grounds of appeal firstly seek to attack the judge’s reasoning in respect of what is described as his rejection of the ETS evidence (see paragraphs 1 to 3). The second element of the grounds involves the judge’s conclusion on the application of S-LTR2.2(a) of Appendix FM to the Rules. Permission to appeal was refused by the First-tier Tribunal but ultimately granted by Upper Tribunal Judge Kamara by a decision dated 16 January 2017.

The hearing before me
6. Mr Armstrong relied on the grounds of appeal in respect of the reasons issue. He submitted that the judge had failed to assess the Respondent’s evidence in light of relevant case law and had failed in essence to identify a step-by-step approach in respect of the evidential burden, the possible innocent explanation provided by the Appellant, and then ultimately whether the legal burden had been discharged. He submitted that the judge had failed to explain what the Appellant’s innocent explanation was.
7. Mr Khan submitted that the judge had found the Appellant to be credible. This being the case, in light of the case law (for example paragraph 23 of Qadir [2016] EWCA Civ 1167), he was fully entitled to conclude the Respondent had failed to discharge the legal burden resting upon her. He submitted that the Appellant’s innocent explanation could be found within his two witness statements and the oral evidence as set out by the judge in his decision.

Decision on error of law
8. I conclude that there are no material errors of law in the judge’s decision.
9. The judge was correct to state that the only evidence being relied on by the Respondent in the case before him was that described by the President in SM and Qadir v Secretary of State for the Home Department (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) as “generic”. In particular, the Respondent had adduced the witness statements of Peter Millington and Rebecca Collings as well as what is described as the lookup tool and the SELT source data printout. It is true that the judge has not expressly stated that this generic evidence had satisfied the evidential burden resting upon the Respondent. However I must read the judge’s decision in the round and it is clear enough to me that the judge has at least implicitly accepted that the evidential burden was discharged by the generic evidence and that what he was looking at as a core issue was whether or not the Appellant’s evidence was credible (see for example the first sentence of paragraph 47). That reference to the Appellant’s evidence involved an assessment of whether an innocent explanation had been provided by the Appellant. That is in line with the correct methodology set out in relevant case law.
10. The judge has then referred to the location of the Appellant’s evidence, albeit he has not set it out in great detail. I note that there is reference to the adoption of two witness statements in addition to the oral evidence given at the hearing. It is clear that the judge had this evidence in mind when at paragraph 52 he states that the Appellant had categorically denied dishonestly obtaining the relevant certificate and then again in paragraph 56 in which he states that he finds the Appellant to be a “truthful” witness. With reference to the Respondent’s grounds there is in fact no express challenge to the finding that the Appellant’s evidence was truthful. In any event, in my view the judge was entitled to find that that evidence was credible.
11. Following the correct methodology, the judge has then moved on to consider the appropriate question of whether or not the Respondent had discharged the ultimate legal burden resting upon her. This much is apparent from a proper reading of paragraphs 49 to 51 of the decision. Reference is made to the generic evidence being insufficient to discharge the legal burden, a conclusion reached in the case of SM & Qadir, and one that was accepted as being correct by the Respondent’s Counsel before the Court of Appeal. It is clear to me that what the judge says in paragraph 51 in reference to “that burden of proof” is linked directly to the legal burden when seen in the context of the preceding two paragraphs.
12. In light of the above and with reference to the appropriate case law the judge was entitled to conclude that the Appellant had not used deception in respect of the obtaining of the 2012 test certificate. On that basis alone the judge was entitled to allow the appeal.
13. The secondary point regarding the interpretation of S-LTR2.2(a) of Appendix FM does not need to be addressed in this particular case. I would just add this comment. In my view the Respondent’s ground would not be made out on this particular issue. The natural ordinary meanings of the words used in that provision are clear enough. The dishonesty must relate to the current application and not a previous application. Use of the definite article was deliberate. There are provisions in other parts of the Rules to deal with wrongdoing in respect of previous applications (contained in Part 9) and Respondent could quite easily have relied on S-LTR1.6 of Appendix FM as an alternative. She has not done so.
14. In light of the above the First-tier Tribunal’s decision shall stand.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal stands.
No anonymity direction is made.

Signed Date: 8 March 2017
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make an award in the sum of £70.00, that being the same as was deemed appropriate by the First-tier Tribunal.

Signed Date: 8 March 2017
Deputy Upper Tribunal Judge Norton-Taylor