Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/10176/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 January 2017
On 2 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SIMAB CHUHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Fernandes (A friend of the appellant)
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge R Callender Smith promulgated on 22 August 2016, which dismissed the Appellant's appeal on all grounds.
Background
3. The Appellant was born on 19 March 1981 and is a national of Pakistan.
4. On 1st October 2014 the Appellant applied for leave to remain in the UK on the basis of 10 years lawful residence in the UK. On 23 September 2015, the Secretary of State refused the Appellant's application.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge R Callender Smith ("the Judge") dismissed the appeal against the Respondent's decision.
6. Grounds of appeal were lodged and on 30 December 2016 First-tier Judge Colyer granted permission to appeal stating inter alia
"4. The appellant denied that he obtained the TOEIC certificate fraudulently. The Judge's task was to assess whether the SSHD had proved her case on deception and dishonesty. In Basnet (validity of application - respondent) [2012] UKUT00113(IAC), when applying "first principles", the tribunal observed that "the party who asserts a fact should normally be the one who demonstrates it". When alleging fraud at that point the SSHD bears the burden of proof. This is a proposition which is uncontroversial and has been confirmed on many occasions. It is arguable that the Judge has not addressed the burden placed on the respondent.
5. Permission to appeal to the Upper Tribunal is granted in respect of the ground that the Judge appears to have erroneously placed the burden of proof on the appellant to establish that he had not used deception rather than on the respondent who is the party making the assertion."
The Hearing
7. The appellant continues to be represented by his friend, Mrs Fernandez. Mrs Fernandez wrote to the Upper Tribunal on 19 January 2017 explaining that she would not be able to attend the hearing, and enclosing the skeleton argument for the appellant together with copies of pages from the appellant's passport. The skeleton argument dwells on the appellant's insistence that he is fluent in English and did not obtain a TOEIC certificate fraudulently.
8. Ms Fijiwala, for the respondent, told me that the respondent no longer resists the appeal. The respondent accepts that there are inadequate findings in fact in the Judge's decision. She took me to [23] of the decision, where the Judge states that there is no witness statement from the appellant. Ms Fijiwala told me that the Judge failed to take account of the grounds of appeal to the First-tier Tribunal, which sets out the appellant's case as if it was a witness statement. She took me to [25] of the decision & conceded that the Judge reverses the burden of proof. She asked me to find that there is a material error of law and to remit this case to the First-tier for further fact-finding.
Analysis
9. In SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC) the Upper Tribunal held that
(i) The Secretary of State's generic evidence, combined with her evidence particular to these two appellants, sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty.
(ii) However, given the multiple frailties from which this generic evidence was considered to suffer and, in the light of the evidence adduced by the appellants, the Secretary of State failed to discharge the legal burden of proving dishonesty on their part.
10. The case file reveals that the appellant lodged a bundle of documents. The bundle contains the appellant's grounds of appeal. The grounds of appeal are seven pages long and are set out as a mixture of the grounds of appeal supported by a statement written in the first person. The Judge makes no reference to what is effectively a witness statement from the appellant. Instead at [22] the Judge complains that there was no witness statement from the appellant. The Judge goes on to say at [22]
"There was no witness statement from the appellant and nothing, other than this appeal, to indicate exactly why I should find that he had not used fraud."
11. At [22] the Judge manifestly fails to take account of significant parts of the documentary evidence that was placed before him. There is no consideration of, or discussion of, the representations made by the appellant in the "grounds of appeal". It was open to the Judge to accept or reject what was said by the appellant but no consideration is given to the appellant's representations.
12. At [25] the Judge baldly declares that the burden of proof is on the appellant. It is the respondent who makes an allegation of fraud. As was noted in the grant of permission to appeal, when fraud is alleged, at that point the respondent bears the burden of proof.
13. I therefore find that the decision is tainted by material errors of law. Had the correct burden of proof been applied there might have been a different outcome to this appeal. Had the appellant's submissions been considered and analysed, there might have been a different outcome to this appeal. I must therefore set the decision promulgated on 22 August 2016 aside.
14. I consider whether I can substitute my own decision. It seems to me that the key to this case may be contained in the history of decisions already made. The suggestion that the appellant relied on an English language test certificate obtained by fraud appears to have been made in the respondent's decision refusing the application made by the appellant on 29 October 2012. The date of that decision is 30 May 2013. The appellant appealed against that decision, and his appeal was dismissed on 11 December 2013.
15. The case file does not contain a copy of the respondent's decision of 30 May 2013 nor the decision of the First-tier Tribunal refusing the appeal against the respondent's decision of 30 May 2013. I have already found material errors of law in the fact-finding process carried out by the first-tier in the decision promulgated on 22nd of August 2016. I therefore find that I cannot substitute my own decision because of the extent of the fact-finding exercise required to reach a just decision in this appeal.
Remittal to First-Tier Tribunal
16. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
17. In this case I have determined that the case should be remitted because a new fact finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.
18. I remit the matter to the First-tier Tribunal sitting at Taylor House to be heard before any First-tier Judge other than Judge R Callender Smith.
Decision
19. The decision of the First-tier Tribunal is tainted by material errors of law.
20. I set aside the Judge's decision promulgated on 22 August 2016. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Date 1 February 2017

Deputy Upper Tribunal Judge Doyle