Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/ 05798 /2015

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision and Reasons Promulgated
On 19th July 2016
On 4th August 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
G A BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Mr Muhammad Yaseen

Respondent

Representation:

For the Appellant: Ms J Isherwood (Home Office presenting officer)
For the Respondent: No appearance

DECISION AND REASONS

1. I shall refer to the parties as "the Secretary of State" who is the appellant in this matter and to Mr Yaseen as "the Claimant" who is the respondent. This matter comes before me for consideration as to whether or not there is a material error of law in the decision and reasons promulgated on 15th January 2016 by the First Tier Tribunal (Judge Hodgkinson) (FTT) in which the Claimant's appeal was allowed on immigration grounds.

Background

2. The Claimant is a citizen of Pakistan who was studying in the UK from 2011 under the Tier 4 scheme. He applied for further leave to remain as a student which was refused on 24th September 2014 with no right of appeal. The refusal was on the grounds that the Claimant had used deception by submitting an invalid English test (TOEIC) in respect of his student application made on 9.4.2013. He was detained in December 2014 and served with a Notice of removal decision dated 13th December 2014. The Claimant was removed to Pakistan on 24th February 2015.

3. He appealed from out of the country and the appeal was determined by the FTT on the papers. His grounds of appeal argued that he did not use a proxy tester and that his English was good enough as shown by his qualifications. He denied any deception and argued that the Secretary of State failed to show solid evidence relating specifically to him.

4. The FTT applied the burden and standard of proof and concluded that the Secretary of State produced insufficient evidence to discharge the burden given that reliance was placed only on generic evidence of Mr Millington and Miss Collings [15] ("generic evidence "), a print out produced by ETS showing the scores for tests taken on 22.8.2012 and 5.9.2012, and an ETS documents showing that a test was taken on 5.9.2012 in the Claimant's name for speaking and listening , and which were used for the application of 9.4.2013. The FTT noted that the refusal reasons referred to the scores for the test taken on 22.8.2012 as having been cancelled and found that there was a lack of clarity in the evidence [15]. The FTT considered that the Secretary of State failed to discharge the burden of proof in that no specific evidence was produced including the recording of the speaking and the voice verification software used [16]. The FTT found that the Claimant had been disadvantaged as he did not have the opportunity to challenge any evidence specific to him.

5. In grounds of application for permission the Secretary of State argued that detailed evidence had been provided of the investigation and processes, and that the evidence taken as a whole was sufficient. The spread sheet showed that both tests taken were invalid and it was alleged that the Claimant had used deception on two occasions. The FTT failed to provide sufficient reasons for rejecting the evidence.

6. Further the FTT erred by importing an impermissibly high standard of proof and that it is not necessary to produce the voice recordings having regard to the standard of proof.

7. Permission was granted on the grounds that the FTT did not have the advantage of Qadir [2016] UKUT.

Submissions

8. Ms Isherwood submitted that the Claimant had used deception in two tests and that following Qadir it had been accepted that the generic evidence was capable of meeting the initial evidential burden of proof on the Secretary of State . There after there was no evidence from the Claimant giving any innocent explanation. The appeal should be dismissed.

Discussion and conclusion

9. In Qadir the Upper Tribunal ("UT") confirmed the three staged approach to the burden and standard of proof in these English language proxy cases. There is an evidential burden on the Secretary of State which requires that sufficient evidence be adduced to raise an issue as to the existence or non existence of a fact in issue; i.e by producing the completed application which is prima facie deceitful in some material fashion. The Claimant has the burden to show that there is an innocent explanation which satisfies the level of plausibility. If that is satisfied the burden falls on the Secretary of State to show on the balance of probabilities that the Claimant's prima facie explanation is to be rejected.

10. Further in Qadir the UT concluded that by a narrow margin the "generic evidence" produced by the Secretary of State discharged the evidential burden [68].

11. In this matter as stated by the permitting Judge the FTT did not have the benefit of Qadir. It must be accepted that the generic evidence was certainly capable of satisfying the evidential burden on the Secretary of State and that the FTT erred in law in this regard. It erred by failing to take into account the comparatively modest threshold which an evidential burden entails and by failing to go on to consider the further two stages in the process. The FTT materially erred in law. Whilst Qadir accepted that each appeal is fact sensitive, nevertheless I am satisfied that the FTT's approach was flawed.

Decision

12. There is a material error of law disclosed in the decision which shall be set aside.

Re making

13. I now consider how to remake the decision. I heard submissions from Ms Isherwood and I had before me the evidence that was before the FTT from the Claimant, namely his witness statement dated 5th January 2016. I start from the premise that the Secretary of State has discharged the evidential burden through the "generic evidence" and the spread sheets showing the dates for the two tests taken and the results. In his witness statement the Claimant denied using deception and relied on his qualifications arguing that he has no reason to use a proxy tester given his language ability. He further relied on the fact that his TOEIC had been used in support of a previous application and had not been questioned. There was no further explanation given by the Claimant which showed any innocent explanation in particular in relation to the two tests taken on different dates both of which were found to be invalid. There is no explanation or evidence produced by the Claimant aside from reliance on his qualifications which were obtained in the UK after the dates on which the tests were taken. I take into account that he is outside of the UK but his grounds of appeal rely specifically on the failure of the Secretary of State to discharge the burden and standard of proof. The Claimant sent a letter dated 19th July reiterating this point and did not provide any further evidence. I am satisfied that the Secretary of State has discharged the burden of proof to the civil standard that deception was used by the Claimant in particular having regard to the fact that the Claimant sat two sets of tests on different dates.

14. I dismiss the appeal.

NO ANONYMITY ORDER

Signed Date 1.8.2016

GA BLACK
Deputy Judge of the Upper Tribunal

NO FEE AWARD as the appeal is dismissed.

Signed Date 1.8.2016

GA BLACK
Deputy Judge of the Upper Tribunal