Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA101662014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 June 2016
On 14 June 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

FAIZEEN MOZAMMEL
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Shafiul Tauhid (Friend)
For the Respondent: Mr K Norton, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant a citizen of Bangladesh, appeals with permission to the Upper Tribunal against the decision of a First-tier Tribunal (Judge Hands) which in a decision promulgated on 13th October 2015 dismissed the Appellant's appeal against the Respondent's decision to curtail his leave to enter or remain as a student.
2. Before me, Mr Norton appeared for the Respondent. The Appellant's friend Mr Tauhid attended on his behalf and sought permission to speak for the Appellant. Mr Norton raised no objection to this request and because this is an out-of-country appeal, I informed Mr Tauhid I would give him permission to address me. I find in any event, in view of Mr Norton's submissions, this appeal can be dealt with quite briefly.
Background
3. The Appellant's case is one of those which falls into the "relatively substantial cohort of so-called 'ETS/TOIEC' cases". The Appellant was granted entry clearance as a student with leave valid until 30th August 2014. His leave was curtailed on 25th July 2014 when information was received from ETS that a proxy test taker had been present at the time of his TOIEC test. The Appellant's leave was curtailed under paragraph 323(1) with reference to paragraph 322(2) of the Immigration Rules, that is to say the Respondent was satisfied that deception had been used to gain entry to the UK.
4. At the time the Appellant's leave was actually curtailed, he was in Bangladesh. He had returned there on 28th July 2014 because his mother had died. When he sought re-entry to the UK on 31st July 2014 he was refused at Gatwick Airport, turned round, and sent back to Bangladesh on the next flight out.
5. The Appellant appealed the decision to refuse him entry and this encompasses the curtailment of his leave and the paragraph 323(2) issue of deception.
6. The Appellant's appeal came before the First-tier Tribunal at North Shields on 22nd September 2015. As the appeal was an out-of-country one, it was heard on the papers. In a written decision promulgated on 13th October 2015 the FtT dismissed the appeal.
UT Hearing/Error of Law
7. When the matter came before me, Mr Norton accepted the FtT in coming to its decision has erred by applying the wrong standard and burden of proof when dealing with the matter of deception. The Respondent's refusal to allow the Appellant entry, is based on a claim that the Appellant has used deception in gaining entry in the past. It is well accepted law that in cases such as these the burden of proof is upon the Respondent.
8. I am satisfied that the decision of the FtT contains a material error requiring it to be set aside. My reasons for so finding are set out below.
9. In [5] of her decision the judge says the following:
"I bear in mind that the Appellant has the burden as establishing on a balance of probabilities that she (sic) comes within the relevant Regulation at the time of the decision made by the Respondent. In this case the Appellant has been granted leave to enter the United Kingdom in terms of the points-based system as a student. This leave was curtailed under paragraph 323(1) with reference to 322(2) which states that leave to remain can be curtailed where false representations have been made or there has been a failure to disclose any material facts for the purpose of obtaining leave to enter or an order to obtain documents from a third party required in support of the application for leave to enter.
The standard of proof is on the balance of probabilities. This is the standard of proof I have applied throughout this determination."
Further at [13] and [14] the judge says this:
"The only information available for the Respondent is the IS82A notice served on the Appellant. The notice makes it clear the UKBA had received information from the ETS that an anomaly in the Appellant's speaking test indicated the presence of a proxy test taker. I have no further information from the Respondent in the file.
There is no documentation in the file from either side as to how it came about ETS discovered a proxy test taker had been used in respect of the Appellant's speaking test."
10. It is clear that this decision cannot stand. The judge has misdirected herself in law and this has led her into error in her approach to the evidence. It is quite clear from the above paragraph, that she has failed to understand, that if there is a gap in the Respondent's evidence then this is a factor which if properly addressed, may lead to the conclusion that the Respondent has not made out the case for deception. The judge's reasoning renders the whole decision flawed.
11. Mr Norton accepted, that the Rule 24 response does attempt to defend the FtT's decision so far as the Article 8ECHR private life is concerned. He did accept however if I were to find a material error concerning the deception issue, then it would be appropriate for the whole case to be remitted for a fresh hearing. He accepted that the Article 8 ECHR issue effectively forms part of the whole appeal. He also submitted that, in fairness, the Appellant should be given an opportunity to place any further evidence that he wished to do so on that aspect of the appeal.
12. The Appellant's friend, Mr Tauhid, agreed that a rehearing was the appropriate course of action. He did suggest that the Appellant may wish to have his case heard now as an oral hearing, with Mr Tauhid appearing as a witness in order to give further evidence on the Appellant's behalf.
13. If the Appellant wishes the matter to be set down for an oral hearing then he will of course have to arrange to pay the relevant upgrade fee.

Notice of Decision
I find that the making of the decision by the First-tier Tribunal contains an error of law and I therefore set aside the decision. The appeal is remitted to the First-tier Tribunal (not Judge Hands) for that Tribunal to remake the decision.

No anonymity direction is made.
Direction
(1) The Appellant should pay the appropriate fee within 28 days in order for the matter to be relisted as an oral hearing.
(2) Once the fee is paid the matter should be relisted for an oral hearing before the First-tier Tribunal in liaison with Mr Tauhid who appears as the Appellant's friend. If the appropriate fee is not paid within 28 days then the matter should be relisted as a paper hearing before the First-tier Tribunal.

Signed C E Roberts Dated 11 June 2016

Upper Tribunal Deputy Judge Roberts