Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/10126/2014

THE IMMIGRATION ACTS

Heard at: Manchester
Decision and Reasons Promulgated
On: 5th October 2016
On: 6th October 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

MD Shafiul Bashar Chowdhury
(no anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

For the Appellant: -
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Bangladesh date of birth 18th February 1989.

2. This appeal concerns the Respondent's decision, dated 26th August 2014, to refuse to grant the Appellant leave to remain and to remove him pursuant to s10 of the Immigration and Asylum Act 1999. The reason given for that decision was the Respondent's conclusion that the Appellant had sought to obtain leave by deception, following information being supplied to the Respondent by the Educational Testing Service (ETS) that an anomaly had been identified, indicating the presence of a proxy test taker, in an English language test purportedly taken by the Appellant on the 19th November 2013. The application for further leave had also been refused because the Appellant's CAS had been invalidated.

3. On appeal the Appellant objected to the deception allegation. He put the Respondent to proof and pointed out that he had achieved an HND diploma and a BA degree both taught in the English language. In a decision dated 28th January 2015 the First-tier Tribunal (Judge Dickinson) found for the Appellant. Judge Dickinson found that the Respondent had not discharged the burden of proof and the appeal was allowed.

4. The Respondent appealed and in a decision dated the 8th May 2014 Upper Tribunal Judge Plimmer found there to be no error of law in the decision of the First-tier Tribunal and dismissed the Respondent's appeal.

5. The Respondent pursued the matter to the Court of Appeal. In a decision dated 29th June 2016 and published as Secretary of State for the Home Department v Muhammad Shehzad and MD Chowdhury [2016] EWCA Civ 615 the Court held that both First-tier and Upper Tribunal had erred in their interpretation of the applicable evidence and law. The initial burden that lay on the Secretary of State was an evidential one only. Following the decisions of the President McCloskey J R (Gazi) v Secretary of State (ETS - Judicial Review) [2015] UKUT 00327 (IAC) and SM and Ihsan Qadir v Secretary of State for the Home Department [2016] UKUT 229 (IAC) it had to be accepted that the evidence that had been provided sufficed to surmount the "comparatively modest threshold" of the evidential burden. That evidence consisted of written statements by Mr Millington and Ms Collins. These statements had been produced in respect of this Appellant. The burden had been discharged and the Tribunals below had been wrong to find otherwise.

6. The Court of Appeal directed that this burden having been discharged, it was for the Appellant to produce a plausible innocent explanation. If he could do so, the burden would shift back to the Secretary of State, upon whom the final legal burden rests. It was on that basis that the matter has now been remitted to this Tribunal.

7. The Appellant was not represented before me; he does not appear to have engaged with these proceedings since 2014. Maya Solicitors, who had formerly represented him, came off record in September 2016. I am satisfied that the Tribunal has served notice of this hearing in good time to the Appellant's last known address in Bangladesh such that if he wished to make any representations, he could have done.

8. No evidence has been submitted by the Appellant since December 2014 when the bundle was lodged with the First-tier Tribunal. As I note above the gist of his case was then that the Respondent had to provide better evidence than she had; for the reasons set out in Gazi and Qadir this argument was misconceived. The Appellant pointed out that he had passed his degree and HND diploma. I am not satisfied that these facts go to the question of whether or not he used a proxy test taker back in November 2013. He may be able to speak and write English but that cannot in itself provide even a partial answer to the Secretary of State's allegations. The Appellant has elected, unlike the appellants in Qadir, not to provide any credible evidence that he did in fact take the test. He has not provided any plausible innocent explanation as to why the results may have been as they were. Taking the evidence as a whole I am satisfied that the Secretary of State has discharged the legal burden to show that the Appellant did exercise deception. There would appear to be no argument that his CAS was in fact invalidated and so he could not in any event be granted leave as a Tier 4 (General) Student Migrant. The appeal is accordingly dismissed.

Decisions

9. The determination of the First-tier Tribunal contains an error of law and it is set aside,

10. The decision in the appeal is remade as follows: "the appeal is dismissed".

Upper Tribunal Judge Bruce
5th October 2016