Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-006575

First-tier Tribunal No: HU/10283/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8 December 2023

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

MD FORHADUZZAMAN
(Anonymity order not made)
Appellant
And

Secretary of State for the Home Department

Respondent
Representation:
For the Appellant: Mr R Sharma
For the Respondent: Mr S Walker

Heard at Field House on 15 September 2023

AMENDED DECISION AND REASONS
1. This decision (having previously been notified to the parties) is now re-promulgated pursuant to the slip rule. Rule 42 of The Tribunal Procedure (Upper Tribunal) Rules 2008 provides for the correction of clerical mistakes and accidental slips or omissions, permitting the Upper Tribunal to at any time correct such errors. It having been drawn to my attention that my decision as previously promulgated did not fully accord with the agreed disposition of the appeal between the parties, and having reviewed my own records, I now issue this corrected version.
2. This is the appeal of Md Forhaduzzaman, a citizen of Bangladesh, against the decision of the First-tier Tribunal of 7 December 2022 dismissing his appeal, itself brought against the Respondent’s decision of 29 May 2019 substantively refusing his further submissions albeit recognising them as raising issues sufficient to constitute a fresh human rights claim.
3. So far as material, the Appellant’s immigration history is that he arrived in the UK on 10 January 2011 with leave to enter as a student, extended until 30 April 2014 and 9 April 2016. That leave was curtailed on 30 January 2015 because the Respondent now held evidence that the ETS test of 19 October 2011, taken at Westlink College, relied on in support of an application for leave to remain as a student made on 29 May 2013 had been dishonestly obtained. The appeal was originally dismissed by the First-tier Tribunal on 19 November 2019 but on 14 July 2022 was remitted due to an error of law relating to the burden of proof; at the re-hearing it was dismissed by Judge Shaerf on 7 December 2022.
4. Judge Shaerf observed that the Appellant relied partly on the statistical information which formed the background to the National Audit Office report into the TOEIC phenomenon, though insufficient detail had been provided to found any reasonable conclusion on that material. Noting that it was unsatisfactory that the Respondent was not represented before him, and that her case appeared to be based on the Look up tool linking the Appellant to the impugned test results, and the well-known statements of Mr Millington and Ms Collins, this material fell well short of the Respondent’s file of evidence before the Upper Tribunal in both Akter [2022] EWCA Civ 741 and DK2 India [2022] UKUT 00112 (IAC). Thus it failed to discharge the burden of proof to put dishonesty in issue. The Appellant had produced documentation to show his academic achievements and had given a plausible explanation why he chose to take an ETS administered TOEIC test at Westlink College. He had given calm, consistent and plausible evidence before the Tribunal which the Judge accepted was credible and reliable. However the findings in Akter and DK2 were determinative of the appeal given the weight that the Judge considered they mandated be given to the Secretary of State’s generic evidence: the Appellant was “not and probably never was in a position to rebut the SSHD’s evidence.”
5. Grounds of appeal contended that DK2 did not conclude that the Respondent’s generic evidence relied upon to make the allegation that an individual used fraud was incapable of rebuttal; at §131 the Upper Tribunal had in fact noted that where “[Appellants] rely on their own assertions [of innocence] about the tests … If credible, and sufficiently comprehensive, such assertions might perhaps, in an individual case, suffice to prevent the Secretary of State establishing dishonesty on the balance of probabilities.” However the impugned migrant’s evidence in DK2 had fallen short in that regard. Thus the First-tier Tribunal’s conclusion that the Appellant had not rebutted the Respondent’s evidence, having explicitly found that he had not used deception and that he was “a credible and reliable witness‟, was perverse and irrational.
6. The First-tier Tribunal granted permission to appeal on 18 January 2023 because it was arguable that the Judge’s finding that the Appellant had not rebutted the Respondent’s evidence of deception was inconsistent with the finding that the Appellant had not in fact practised deception; and thus it was arguable that the question of whether the Respondent had lawfully discharged her burden of establishing deception had not been properly answered.
7. Before me the parties were essentially in agreement that the approach of the First-tier Tribunal could not stand, essentially for the reasons set out in the grounds of appeal.
Decision and reasons
8. It is very clear that there was some confusion in the mind of the Judge below. Much of the reasoning suggests the appeal should have been allowed, as the Appellant's own evidence was accepted as cogent and credible. However having made what might be seen at the very least as interim conclusions in that regard, the Tribunal then went on to find that the evidence upon which the Secretary of State relied, given its treatment by the Upper Tribunal in DK2, was incapable of rebuttal by what one might style as migrant-specific evidence.
9. That, however, is not what was held by DK2. That decision makes clear that the Secretary of State’s generic evidence should, so long as the Look-up tool adequately ties a migrant to the impugned test result, be treated as firmly putting dishonesty in issue. And it may also take the Secretary of State a long way towards discharging the ultimate legal burden of proof on the appeal. But it is not determinative of matters. DK2 expressly holds open the possibility that credible and comprehensive evidence might carry the day for the migrant notwithstanding the general potency of the generic evidence. Thus the First-tier Tribunal failed to direct itself of the correct approach in law, thereby making a material error of law.
10. Normally an error of law of this nature would require a remittal for re-hearing. However the present situation is rather unusual. Given the findings of the First-tier Tribunal on the Appellant's witness statement and oral evidence it is unnecessary for this appeal to involve any further hearings. The Appellant's evidence of not having acted dishonestly having been accepted, there is no public interest contraindicating his appeal’s success, as was agreed before me by Mr Sharma and Mr Walker.
Decision:
The decision of the First-tier Tribunal contained a material error of law. The appeal is allowed outright.

Deputy Upper Tribunal Judge Symes
Immigration and Asylum Chamber
8 December 2023