Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-003547

First-tier Tribunal Nos: HU/57346/2022
LH/00796/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 August 2025

Before

UPPER TRIBUNAL JUDGE KHAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MD ASHRAFUR RAHMAN CHOWDHURY
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr B Hulme, Senior Home Office Presenting Officer
For the Respondent: Mr S Karim, Counsel instructed by Liberty Legal Solicitors LLP

Heard at Field House on 2 July 2025

DECISION AND REASONS
1. This is an oral decision delivered following submissions heard in this appeal.
2. For the purposes of ensuring clarity, the reference to the Secretary of State for the Home Department and Ashrafur Rahman Choudhury who were referred to as the respondent and appellant, respectively, before the First-tier Tribunal (‘FtT’)is maintained in this decision.
3. The respondent, the Secretary of State for the Home Department, brings this appeal with permission granted by Judge Buchanan on 22 August 2023 against a decision of First-tier Tribunal Judge (‘FtTJ’) Graves dated 14 July 2023 in which she allowed the appeal of the appellant, Mr Chowdhury.
4. Judge Graves allowed Mr Chowdhury’s appeal concluding that the consequences of the respondent’s decision was ‘unjustifiably harsh.’ The permission granted by Judge Buchanan related to two grounds; (i) an adjournment issue: the respondent contended that an adjournment application had been made on the date of the hearing due to staff sickness but the FtT decision stated that no application had been made, and (ii) a material error in law by reaching a conclusion in fact about the college where the TOEIC test was taken drawn from ‘facts’ as mentioned and determined in other cases, but not founded on evidence which was properly before the FtT. The respondent contends that ‘The respondent asserts as a matter of fact that the college the appellant sat the test was at Colwell College in Leicester and not in London. Judge Buchanan went on to state in the permission grounds:
“The Grounds do not say that there was positive evidence before the Tribunal from which the location of the test centre could properly have been decided by the Judge; but then it is arguable that the Judge may have made a material error of law in reaching a conclusion about venue which was not based on evidence before her or was based on an inference improperly drawn from the primary facts established in the appeal”.
Judge Buchanan determined that the matter was arguable.
5. The respondent informed the Upper Tribunal (‘UT’) that the first ground (the adjournment issue) was no longer being pursued in the appeal. It is only the second ground of permission that the respondent seeks to pursue.
Procedural History
6. Before I turn to consider the error of law matter based on the second ground before me this morning, it is useful to set out the procedural history that has led to the case being listed today. I should also note that Mr Chowdhury filed a Rule 24 response which reflects the arguments set out in the skeleton document.
7. In terms of the procedural history, following permission being granted to appeal the FtT decision, the matter was heard before Upper Tribunal Judge Jackson on 3 December 2023. By a sealed Order dated 11 December 2023, she determined that the FtT decision had involved the making of an error of law. The FtT decision was set it aside and the respondent’s appeal allowed and retained in the Upper Tribunal for re-making. A re-making hearing was held on 7 March before UTJ Jackson and Deputy DUTJ Froom. By a sealed order dated 18 April 2024, the UT allowed the respondent’s appeal.
8. The appellant, Mr Chowdhury, appealed the remaking decision to the Court of Appeal. By a sealed order dated 28 October 2024, Lady Justice Laing allowed the appeal setting aside the UT error of law decision dated 11 December 2023 and also the UT re-making decision dated 18 April 2024. The order of Lady Justice Laing states: “
“By consent it is ordered that the appeal is allowed to the extent indicated in paragraph 2. Paragraph 2 states the decision of the Upper Tribunal dated 18 April dismissing the appellant’s appeal against the refusal of his human rights claim and the decision of the Upper Tribunal dated 3 December 2023 setting aside the earlier decision of the First-tier Tribunal in which the First-tier Tribunal allowed the appellant’s appeal against a refusal of his human rights claim are set aside”.
9. At paragraph 3 of the Order, it states that the matter is remitted for rehearing before a differently constituted Upper Tribunal to consider afresh whether the First-tier Tribunal decision dated 14 July 2023 involved the making of an error of law on a point of law.
10. In her detailed reasons, Laing LJ at [20] stated ‘I have read determination 1 carefully (FtT decision). It is not obvious that, in any of the paragraphs relied on in the appellants’ skeleton, the FtT did make an express finding. It is nevertheless arguable with a reasonable prospect of success that there is such a finding or that such a finding is implicit in determination 1’.
11. That brief synopsis brings us to where we are today. The two earlier UT determinations have now been set aside by the Court of Appeal, and it is for me to determine afresh if the decision of the FtT dated 14 July 2023 involved the making of an error of law on a point of law. I am grateful to Mr Karim who represents the appellant, Mr Chowdhury, for his skeleton argument. I am also grateful for the submissions which have been made by Mr Hulme who represents the respondent, the Secretary of State.
12. It is evident that the error of law point following on from the grant of permission is on a very narrow point, namely, whether the FtT failed to resolve a key conflict of fact as to where the appellant took his English Language test (the ‘TOEIC’ test).
The First-tier Tribunal Decision
13. The starting point must be the FtT decision because the narrow issue is really the location as to where the appellant, Mr Chowdhury, sat his TOEIC test. The importance of establishing where he sat his TOEIC test as stated by the respondent goes directly to Mr Chowdhury’s credibility. The Secretary of State has maintained that the test was taken at Colwell College in Leicester, while Mr Chowdhury, has maintained throughout the proceedings, including before the FtT that he took the test at Colwell College in London. The respondent says this was a key conflict of fact that needed to be resolved by FtTJ Graves in order to determine the question of Mr Chowdhury’s credibility against a background of where there had been significant fraud in relation to these TOEIC tests. The respondent maintains that the FtTJ failed to resolve the conflict of fact regarding location which was an error of law.
14. It is clear from the decision that the FtT properly identified and applied the authority of DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC). This decision established that where the appellant is said to have used deception by using a proxy test taker there is a three stage test: (i) the legal burden of proving that the appellant acted dishonestly lies on the Secretary of State who must adduce prima facie evidence of deception (first stage); (ii) the appellant then has the burden of raising an innocent explanation which satisfies the minimum level of plausibility (second stage); and (iii) if that burden is discharged, the Secretary of State must establish on a balance of probabilities that the explanation is to be rejected (third stage).
15. It is common ground between the respondent and the appellant that the legal burden of proving that the appellant acted dishonestly lies on the Secretary of State who must adduce prima facie evidence of deception. In this regard, the respondent before the FtT relied on the Project Façade report. This report was produced for Colwell College, Leicester. It indicated there had been widespread fraud in relation to the taking of the tests by proxies. It was the respondent’s position that the TOEIC test had been taken at Colwell College, Leicester whilst Mr Chowdhury maintained that he took it in London. This was clearly the central issue that was in the mind of the FTJ.
16. To demonstrate that this was the central issue in her mind, at paragraphs 20/21 of the FtT findings, the judge stated:
“The respondent says the appellant took a TOEIC test. The appellant does not dispute that, and produces copies of his TOEIC certificates….., for speaking and writing on 28 March 2012……, and listening and reading on 18 May 2012….. The respondent alleges that the appellant cheated on the speaking element of his test, based on an assessment of voice recordings conducted by the testing company, ETS. I will not go into the much litigated history as it is well known to the courts. The burden of proof, with regard to an allegation of deception, is on the respondent. There is authority that the generic bundle of evidence from the respondent, comprising an ‘invalid’ test result look up tool, a look up tool for the test centre, and supporting statements, as well as the initial Prof French report, discharges the initial burden of proof…...”
17. She then goes on to correctly set out the DK and RK authority identifying that the burden of proof in proving fraud or dishonesty rests on the Secretary of State. At paragraph 23, she states “I must consider first the evidence the respondent relies on to discharge the evidential burden upon her’.
18. Before me, as indeed before the FtTJ, I have been referred to the ETS look-up tool for the appellant’s result which shows the entries for his result as invalid. The test date, appellant’s name, date of birth and test registration all match those on the certificate in the appellant’s bundle. However, as noted by the FtTJ there were nonetheless some other matters which were omitted, for example, the appellant’s nationality in Bangladesh which was not there.
19. At paragraph [26], the FtTJ stated “There is a further strand of significant evidence relied on by the respondent in this case, which is that the test centre was seen to be of sufficient concern that it warranted a criminal investigation, and so a ‘Project Façade’ report was produced for Colwell College, Leicester”.
20. At paragraph [31] “The appellant asserts in response that he did take the test himself, and so some sort of mistake must have been made, whether deliberately or recklessly. He points to factors he says are relevant to support his case.”
21. At [32] as to the ETS look-up tool for the appellant, Mr Karim before the First-tier Tribunal questioned whether there were two entries on the different numbers. The FtTJ stated:
“I also note the college name and address do not appear on the TOEIC, but it is the look up tool that asserts it took place at Colwell College test centre. The appellant’s nationality is also listed as 0, rather than Bangladesh. These are minor anomalies in the individual look up tool, therefore, which by themselves do not carry any real weight.”
22. I note it is common ground between Mr Karim and Mr Hulme that the look-up tool did not state the specific location of Colwell College, whether that being Leicester or whether that being in London.
23. However, the evidence that was before the First-tier Judge as to the central issue of location is at paragraph [35] of the FtT decision. The appellant stated that he booked both components of the test at Colwell College in Aldgate, London, but did not pass his listening and reading test first time, which the judge stated is evidence that he did it himself, as if he used a proxy, they would surely be likely to pass first time. He therefore had to re-do that component of the test a few months later, in May 2012.
24. Paragraph [36] of the decision goes on to state:
“There was an anomaly between the Project Façade report and the appellant’s evidence, identified at hearing. The appellant says in his witness statement, prepared on 2 February 2023, that he chose the specific test centre of Colwell College, because it was a less than thirty-minute walk from his home, in Aldgate East, London, and he lived in E1 at the time”.
25. I note that the Project Façade report plainly describes the test centre to which it relates as Colwell College, Leicester.
26. At paragraph [37] of the FtT decision in respect of whether there is or was a Colwell College located in London, Mr Karim produced, before the First-tier Tribunal, the decision of Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009. At [135] of that decision it stated that Mr Ahsan submitted a TOEIC test certificate issued by Colwell College in London. The respondent did not dispute this fact.
27. As a result of that revelation, the FtT Judge stated at [37]:
“I find this raises a significant concern about the weight to be placed on the respondent’s evidence. If indeed the appellant took his TOEIC test at a completely different test centre by the same name, or even only at a different branch than that investigated by ETS and the police, then that raises the question of whether the test centre look up tool data has anything to do with what happened at the test centre where the appellant took the test on that day. The Project Façade report is also called into a question, and whether that, and the ETS audit issues, relate to the same test centre the appellant attended, or a different one.”
28. At [38] of the decision the FtT Judge goes on to say:
“This is not a case of the appellant asserting the respondent has it all wrong and changing his story to fit that assertion. The appellant’s statement, prepared many months ago, gives a location in London for where the appellant took his test, and that same location features in one other authority on relevant litigation.”
29. At [40] of the decision, the FtT Judge says:
“I find the test centre look up tool is a key piece of evidence, as it provides context for why the appellant’s test scores, viewed not in isolation, but looking at all the test scores for that day, are out of the ordinary. However, as noted above, his scores do not exactly match those average scores anyway.”
30. At [41] the FtT Judge says:
“I therefore have real concerns about whether the evidence in this case does discharge the initial burden, whether narrowly or amply, or at all.” At [42] she says “Nevertheless, I have considered all the evidence in the round before me”. At [43] she refers to the appellant’s evidence who asserted that “he would have no motivation to cheat, and that his English was good enough he would have no need of a proxy, an account which is supported by his English test scores throughout the relevant period, although I note he re-sat the other component”.
31. At [48] the FtT Judge says:
“In this case, however, there is real question over whether the contextual evidence of what took place at the test centre, demonstrating widespread cheating, applies in this case. I do consider that this is a case where there is more than an innocent explanation that meets the minimum level of plausibility. There is the concern, which is one I do consider is far from marginal, about whether the evidence the respondent relies on relates to the same test centre where the appellant took his test. Taken together with the other minor issues set out above, I find that raises real questions about the reliability of the respondent’s evidence.”
32. In my judgment, I am clear that what the FtT Judge is saying is that she has uppermost in her mind the location of the test centre being of key importance. She states at [48] “There is the concern, which is one I do consider is far from marginal, about whether the evidence the respondent relies on relates to the same test centre where the appellant took his test”. She then goes on to state at [49]:
“I am concerned that the intervening passage of time, taken together with the confusion about the test centre location, does cast real doubt over whether the widespread institutionalised cheating system was in place at the test centre the appellant attended. If it was not, or was at a different branch, then that adds credibility to the appellant’s account of taking the test himself, as this was not a centre where widespread cheating took place, at the time he took the test.”
33. At [50] – [51], the FtT Judge refers again to the appellant’s own evidence that he did sit the test in London in March 2012, he described the location journey and what happened on that day. She says, “I did ask him questions about those matters, and in particular, asked him how he could remember so clearly, when so much time had passed.” She said she accepted Mr Karim’s point that he could equally be challenged on credibility if he gave no detail of his recollection and she also accepted that:
“This was not an appellant who found out for the first time this year that the respondent alleges he cheated in that test and somehow recalls details from the recesses of his memory, a test from eleven years ago. He knew about the allegation in 2014 and so may well have committed some details to memory, which I find not unusual, when a person knows their recollection of an event is being challenged”.
34. Of significance is [51]. This is where in my judgment the FtT Judge brings together the various strands of the discussion, and in particular reaches a decision or a judgment on the evidence that has been put forward by the appellant, Mr Chowdhury, and says explicitly:
“I will say the appellant also presented as generally credible at hearing, his evidence was detailed, consistent, and contained an emotional element consistent with the serious nature of the allegation he faces and its consequences for him. He also did all he could to address the situation, given he had no right of appeal in this country, in approaching solicitors, contacting the test centre, contacting his own sponsoring college, and requesting the voice samples, listening to them and identifying a number of issues which he says supports his account that they are not the recordings of his own test”.
35. The Tribunal, she goes on to say:
“is no stranger to these appeals, and I have heard any number of accounts relating to this type of allegation, and so I approached the appellant’s evidence with considerable caution. Nor was his evidence at hearing wholly unchallenged. The respondent, who bears the burden of proof, did not take the opportunity to cross examine the appellant, but I did ask questions to probe and clarify areas of his account. The appellant emerged unscathed from that process.”
36. Finally, at [52] the FtT Judge says:
“I therefore find in the particular circumstances of this particular case, and given the concerns the appellant raises, there is sufficient doubt about the quality of the evidence relied on by the respondent, and taking all the evidence in the round, I find the burden of proof is not discharged”.
37. Those are the principal findings arising from the FtT Judge’s decision.
Discussion
38. I now turn to the relevant law which governs the circumstances in which the UT will interfere with a decision of the First-tier Tribunal on the basis of an error of law involved in the decision making. I turn to the decision of Volpi & Anor v Volpi [2022] EWCA Civ 464 at [2]. That decision held that the following principles are well-settled:
“(i) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong.
(ii) The adverb ‘plainly’ does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”
39. The decision of Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 distils the principles of Volpi and sets out the jurisdiction of the UT relating to errors of law. The decision reiterates that it is settled that the First-tier Tribunal is a specialist fact-finding Tribunal and the Upper Tribunal should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently. Where a relevant point was not expressly mentioned by the First-tier Tribunal the Upper Tribunal should be slow to infer that it had not been taken into account. When it comes to the reasons given by the First-tier Tribunal, the Upper Tribunal should exercise judicial restraint and not assume that the First-tier Tribunal has misdirected itself just because not every step of its reasoning was not fully set out.
40. I also turn to the decision of Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) which confirms the importance of the following:
“Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge.”
41. I now turn to the application of the law to the facts. It is common ground between Mr Karim and Mr Hulme that the FtT did not explicitly make a finding that Mr Chowdhury sat his TOEIC test at Colwell College, London. However, when one looks at the decision of FtTJ Graves which I have set out extensively there is no doubt in my mind that the central question of location (Leicester or London) was uppermost in her mind. That is clear from her decision, when she says that [location] it is far from a marginal issue, it also goes directly to her finding in relation to the respondent’s burden of proof.
42. The respondent maintained that the TOEIC test was taken in Leicester and produced evidence from Project Façade of fraud in relation to Colwell College, Leicester. That was the burden of proof on the Secretary of State to show that there had been fraud or dishonesty. The FtT Judge was clearly concerned that based on the evidence of Mr Chowdhury, which she found credible, the evidence put forward in relation to Colwell College, Leicester was not evidence of dishonesty or fraud in relation to TOEIC testing at Colwell College, London. In fact, one might say there was a lack of evidence in relation to anything dishonest that had happened at Colwell College in London.
43. The majority of the evidence that was put forward by the respondent to discharge the burden of proof was in relation to Leicester. The FtT Judge found that the evidence given by the appellant was credible at the hearing. She also noted because the respondent was not represented that he was not cross-examined. With that being the case applying the Surendran guidelines she probed appropriately the evidence that was being given by the appellant and states that he came out of that process of her probing unscathed. She says at [51] that “This Tribunal is no stranger to these appeals, and I have heard any number of accounts relating to this type of allegation”. Her remarks clearly suggests that she is an experienced judge who knew precisely the issues relating to fraud and deception at the various TOEIC testing centres. She stated “I approached the appellant’s evidence with considerable caution” given her experience of what previously has happened in TOEIC testing, fraud, and dishonesty matters. She says: “Nor was his evidence at the hearing wholly unchallenged. The respondent, who bears the burden of proof, did not take the opportunity to cross examine, but I did ask questions to probe and clarify the areas of his account. The appellant emerged unscathed from that process.”
44. It is tolerably clear to me that whilst there is no explicit finding in the FtT decision on the location of the TOEIC testing, the primary facts established by the FtT Judge raises a clear inference that she has made a decision implicitly based on the location stated by Mr Chowdhury. That is because she considered his evidence to be credible. It is also because the respondent failed to discharge the burden of proof because the evidence of deception put forward related to Colwell College, Leicester and not Colwell College, London. It is therefore a reasonable and proper inference to draw from the FtTJ’s factual findings that she accepted Mr Chowdhury’s account that he took the test at Colwell College, London in Aldgate.
45. Applying the decision of Volpi and also Ullah, it is clear that the UT must exercise judicial restraint in circumstances where the judge has not been found to be plainly wrong in their findings.
46. The decision of Ullah at [26(ii)&(iv)] states that where a relevant point was not expressly mentioned by the FtT, the UT should be slow to infer that it had not been taken into account; and, the issues for decision and the basis upon which the FtT reaches its decision on those issues may be set out directly or by inference.
47. It is clear from the FtT decision that the Judge had uppermost in her mind the question of location and that she resolved the conflict of fact implicitly in favour of the appellant, Mr Chowdhury, whom she found was credible. Her implicit acceptance of the test location, namely Colwell College, London, advanced by the appellant can be properly inferred from the primary facts established. The decision of the FtTJ Graves therefore stands. Her decision did not involve the making of an error of law. The respondent’s appeal is dismissed.
Notice of Decision
48. The respondent’s appeal to the UT is dismissed. The decision of FtTJ Graves stands.

K.A.Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 July 2025