Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/00140/2016
HU/07634/2017

THE IMMIGRATION ACTS

Heard at: Field House - hybrid
Decision & Reasons Promulgated
On the 14 June 2022
On the 21 July 2022

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MR MUHAMMAD AHSAN SHAH
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS

Representation
For the appellant: No appearance
For the respondent: Mr T Melvin, Senior Home Office Presenting Officer

Introduction
1. This is an appeal against the decision by the Secretary of State to remove the appellant from the United Kingdom dated 31 October 2014 (OA/00140/2016) as well a decision of an Entry Clearance Officer, taken on 22 May 2017, to refuse to grant him entry to the United Kingdom as a partner (HU/07634/2017).
2. The decision of First-tier Tribunal Judge Welsh, promulgated on 6 August 2019, was set aside, in part, following an error of law consideration on the papers on 15 June 2020. That decision was promulgated on 2 July 2020.
Anonymity
3. No anonymity direction has been made previously, and there is no application nor reason for one to be made now.
Background
4. The appellant entered the UK on 29 January 2011 as a student and, following an application made on 18 May 2012, extended his leave in the same capacity until 30 May 2015. In a decision dated 31 October 2014 but served on 5 November 2014, the respondent notified the appellant that he was to be removed from the UK under section 10 of the Immigration and Asylum Act 1999 because he had used deception in a TOEIC examination; a decision which attracted a right of appeal only from abroad. Service of that notice invalidated the leave previously granted to the appellant. Ultimately, the appellant left the UK voluntarily on 30 May 2016 and exercised his right of appeal against that decision. In addition, on 24 February 2017, the appellant sought entry clearance as a partner following his marriage to Ms Khan which took place in Pakistan in January 2017.
The decision of 31 October 2014
5. The said decision advised the appellant that he was entitled to appeal the decision to remove him only after he had left the United Kingdom. The reason for this decision as follows:
“You are specifically considered a person who has sought leave to remain in the United Kingdom by deception. For the purposes of your application dated 18 May 2012, you submitted a certificate from Educational Testing Service (“ETS”) to your sponsor in order for them to provide you with a Confirmation of Acceptance for Studies.
ETS has a record of your speaking test. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker. Yours scores from the test taken on 22 February 2012 at LSMDS have now been cancelled by ETS.
On the basis of the information provided to her by ETS, the SSHD is satisfied that there is substantial evidence to conclude that your certificate was fraudulently obtained.”
The decision of 22 May 2017
6. The appellant’s application for entry clearance was refused on suitability grounds because he had “previously found to have submitted false educational documents in order to gain further leave to remain in the UK on 31/10/2014.” In addition, the respondent did not accept that the appellant’s relationship with his partner was genuine and subsisting.
7. The foregoing issue is no longer live as the findings of Judge Welsh as to the genuine and subsisting nature of the appellant’s relationship with his partner have been preserved. No issues were raised in the decision notice with regard to the financial or English language requirements of the Rules.
Ancillary matters
8. This appeal was listed for a resumed hearing to take place, remotely, on 23 March 2021. Prior to that date both representatives raised concerns that there was an outstanding case, DK & RK (ETS: SSHD evidence; proof) India UKUT 00112 (IAC), which could have relevance to the instant case. I therefore adjourned the appeal pending the final decision in DK & RK, and made directions for the progress of this matter following that outcome. In short, within 28 days of the final decision in DK & RK, the parties were to inform the Upper Tribunal and each other whether an oral hearing was sought, the appellant was to serve a single indexed bundle and both parties were to provide skeleton arguments.
9. On 21 March 2022, the appellant’s solicitors requested an oral hearing, stating that the relevant matters in DK & RK had been ‘sufficiently dealt with’ in the earlier decision reported as DK and RK (Parliamentary Privilege; Evidence) [2021] UKUT 61 (IAC), promulgated on 27 January 2021.
10. DK & RK (ETS: SSHD evidence; proof) India UKUT 00112 (IAC) was promulgated on 25 March 2022. On 12 May 2022, this appeal was listed for an in-person hearing to take place on 14 June 2022.
The continuance hearing
11. On 13 June 2022, Connaught Law sent an email to the Upper Tribunal to say that the firm was no longer representing the appellant. At the same time, Mr Melvin requested a hybrid hearing. That request was granted on the basis that it would be possible for the appellant to attend remotely given that Connaught Law had withdrawn representation.
12. The appeal was therefore listed for a hybrid hearing. Shortly before the hearing was due to start, an email was received from Uzma Khan who stated that she was unable to attend the hearing owing to urgent work commitments. She requested the appeal be adjourned to another date. A Tribunal staff member telephoned Ms Khan to ask if the appellant had a new representative and she said that he did not. Ms Khan provided the appellant’s email and telephone number which was missing from the Tribunal file. Several unsuccessful attempts were made by court staff to telephone the appellant to ascertain whether he wished to attend the hearing and if so to provide him with a BT Meet me details.
13. When this matter came before me, Mr Melvin informed me that he had sent an email to the appellant with details of the hearing but received no response. I informed Mr Melvin of Ms Khan’s application for an adjournment, which he opposed.
14. I considered whether to adjourn to enable her to attend a future hearing but declined to do so owing to fact that I had previously preserved the findings of fact relating to the relationship and the sole remaining issue was that of deception, about which Ms Khan had no knowledge as this allegation predated her marriage to the appellant. I also considered whether to adjourn the appeal to enable the appellant to take part in the hearing. I was satisfied that he was aware of the hearing date which was evidenced by the fact that he was represented until shortly before the hearing and that his wife had communicated with the Tribunal. I considered that the appellant had no wish to take part in the hearing, evidenced by the lack of response to the various telephone calls and emails referred to above.
15. I heard submissions from Mr Melvin and at the end of the hearing, I reserved my decision.
Discussion
16. In reaching this decision, I have considered the appellant’s case which is set out in his witness statements, his evidence before the First-tier Tribunal, various skeleton arguments and his supporting documents. I have also taken into consideration the submissions made by the Secretary of State as well as her supporting evidence.
17. The issue to determine in this appeal is whether the appellant used deception in his English language test, this being relevant to the suitability criteria in the Immigration Rules. The relevant burden and standard of was clarified in DK & RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 IAC, that is, it is inaccurate to describe the legal burden as shifting, as it remains throughout on the Respondent, as follows:
(a) First, where the Secretary of State alleges that an applicant has practised dishonesty or deception in an application for leave to remain, there is an evidential burden on the Secretary of State. This requires that sufficient evidence be adduced to raise an issue as to the existence or non-existence of a fact in issue: for example, by producing the completed application which is prima facie deceitful in some fashion.
(b) The spotlight thereby switches to the applicant. If he discharges the burden – again, an evidential one – of raising an innocent explanation, namely an account which satisfies the minimum level of plausibility, a further transfer of the burden of proof occurs.
(c) Where (b) is satisfied, the burden rests on the Secretary of State to establish, on the balance of probabilities, that the Appellant’s prima facie innocent explanation is to be rejected.
18. At paragraph 4 of DK and RK, the following is said
We conclude that despite the general challenges made, both in judicial proceedings and elsewhere, there is no good reason to conclude that the evidence does not accurately identify those who cheated. It is amply sufficient to prove the matter on the balance of probabilities, which is the correct legal standard. Although each case falls to be determined on its own individual facts and evidence, the context for any such determination is that there were thousands of fraudsters and that the appellant has been identified as one of them by a process not shown to have been generally inaccurate.
19. In the present appeal, it is clear that the respondent has met the first evidential issue, establishing a prima facie case of deception. That is consistent with the findings in the test cases on ETS English language tests, including the latest assessment in DK and RK and the generic evidence relied upon by the respondent. The focus then switches to the appellant in this case, whose innocent explanation is in essence that he attended the tests and undertook them himself, without using a proxy test taker and that he had no need to cheat because he had sufficient English language skills.
20. I did not have the benefit of hearing from the appellant however, as a decade has now passed since the events which led to the 2014 decision, it is unlikely that he had anything to add to what he said in his witness statement dated 3 August 2017 or in his evidence to the First-tier Tribunal who considered the matter in 2019. In short, the appellant states that he took a speaking and writing test on 22 February 2012 at the New College of Finance test centre, scoring 200 out of 200 for speaking and 194 out of 200 for writing. A list of the tests taken on that date at the said College shows that while the appellant’s scores were spectacularly high, all tests were found to be either invalid or questionable.
21. According to the record of proceedings from the First-tier Tribunal, the appellant confirmed that his solicitors had obtained a copy of the recording relating to his TOEIC test and that it was not his voice on that recording. I note that the appellant states that he paid for his test by card yet there is no supporting evidence. The appellant gave a detailed account of how he travelled to the test centre and what happened on the day, which the respondent’s representative before the First-tier Tribunal submitted was consistent with the information available on the ETS website. My view is that mere presence at the test centre is insufficient, by itself, to show that a proxy was not used. The appellant’s account before the First-tier Tribunal was noted to be inconsistent with regard to his reasons for selecting the test centre in question, in that he initially stated that he arranged the tests to take place after Friday prayers and he changed that account when it transpired that his tests did not take place on a Friday. That inconsistency does not assist the appellant’s case.
22. The evidence before me shows that the evidential burden on the respondent has been met. That evidence includes the look up tool and the expert reports considered in DK and RK. That evidence shows that the applicant’s test was invalidated as a proxy test taker took the test and scored 200 points. The applicant attributes the absence of his voice on the recording to a false positive result. Given the evidence before the Upper Tribunal in DK and RK, at [80], showing that the possibility of a false positive result is less than one per cent, that is sufficient to show that the respondent met the evidential burden upon her. I find that the appellant’s assertion about the recording does not, by itself, amount to an innocent explanation.
23. I have carefully considered all the appellant’s circumstances including his educational history, his English proficiency and whether he was under pressure to obtain an English language qualification. The appellant’s witness statement is silent upon his education or employment prior to arriving in the United Kingdom. I note that the appellant took and passed a twelve week English language course shortly after entering the UK in 2011. Thereafter he obtained a Level 7 Diploma in Business Management and enrolled on an ACCA course at the London School of Business and Finance. The appellant required an English language certificate prior to starting his Level 7 course. Given the level of the courses the appellant states that he took and passed, this would indicate a reasonable ability to speak English. The appellant gave evidence before the First-tier Tribunal in 2019 and he had difficulty understanding the question posed and answering them. The judge rightly placed little weight on these matters owing to the appellant’s absence from the United Kingdom for close to three years. Nonetheless, this does raise an issue as to how the appellant was able to obtain near perfect scores in English after only a year or so in the United Kingdom when he relies upon no previous work or study using the English language. The appellant’s tests were taken in February 2012 and he applied for further leave in May 2012 and I accept that it could not be said that he was under time pressure to obtain an English language qualification.
24. In the skeleton argument submitted on behalf of the appellant, for the adjourned hearing on 23 March 2021, reliance is placed on the argument that the respondent’s evidence is not reliable, a prima facie case has not been demonstrated and therefore the respondent cannot discharge the burden upon her. In DK and RK, the Upper Tribunal concluded that the evidence relied upon by respondent sufficed to identify those who cheated. The appellant’s test was invalidated by ETS and in the absence of a consistent account or supporting evidence, I find, on balance, the respondent has proved that the appellant used deception in procuring the English language test result in question. It follows that his appeal against the 2014 decision to remove him owing to using deception to gain leave to remain is dismissed.
25. I now turn to the 2017 decision to refuse entry clearance as a partner. As the appellant used deception in an immigration application, it follows that he cannot meet the suitability requirements of Appendix FM. At no stage have any submissions been made to the effect that there are compassionate circumstances which demand that an exception be made notwithstanding the deception. While it is not in dispute that the appellant has a family life with Ms Khan and that the decision interfered with their ability to carry out that family life in the United Kingdom, the decisions were lawful and in pursuance of a legitimate aim. I also find that the decisions were proportionate given the appellant’s use of deception and his inability to meet the Suitability requirements of the Immigration Rules when considered with the lack of any compelling compassionate circumstances. Therefore the appellant’s human rights appeal also fails.

Notice of Decision
The appeals are dismissed.
No anonymity direction is made.

Signed: T Kamara Date 5 July 2022
Upper Tribunal Judge Kamara

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed: T Kamara Date: 5 July 2022
Upper Tribunal Judge Kamara

NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email