Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-002551

First-tier Tribunal No: HU/56669/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of April 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Shahrukh Ahmed Sarif Namazi
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr P Saini, instructed Direct Access
For the Respondent: Ms S Simbhi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 5 November 2024
Decision and Reasons
Introduction
1. The appellant is a national of India. He arrived in the UK on 15 October 2011 with leave to enter valid until 28 February 2014 as a Tier 4 student. That leave to enter was curtailed on 24 October 2013 to 23 December 2013 because the sponsor licence for the college attended by the appellant had been revoked. On 23 December 2013 the appellant made an application for leave to remain as a Tier 4 student. That application was refused by the respondent on 15 May 2014. The appellant remained in the UK and was granted temporary admission on 17 March 2015. Some years later, on 14 February 2023 the appellant applied for leave to remain on human rights grounds. The application was refused by the respondent for reasons set out in a decision dated 15 May 2023.
2. The appellant’s appeal against that decision was dismissed by FtT Judge Gray For reasons set out in a decision dated 26 March 2024.
The Grounds of Appeal
3. Before I turn to the substance of the grounds of appeal, as I indicated to Mr Saini at the outset of the hearing before me, the task of the Tribunal is made all the more difficult by written documents that are unduly lengthy, unfocused, unduly repetitive and at times, incoherent. Representatives in particular are under a duty to help the Upper Tribunal to further the overriding objective and that includes using any special expertise of the Upper Tribunal effectively. The decision of the FtT that is the subject of the appeal before the Upper Tribunal spans 9 pages and comprises of 41 paragraphs. The Grounds of Appeal settled by Mr Saini and dated 4 April 2024 span 20 pages and comprise 73 paragraphs. Permission to appeal was refused by First-tier Tribunal Judge Galloway on 20 May 2024. The judge summarised the grounds in one paragraph.
4. The application for permission to appeal was renewed to the Upper Tribunal. The Grounds of Appeal, again settled by Mr Saini, then spanned 24 pages and comprised of 96 paragraphs. As I pointed out to Mr Saini, the Grounds of Appeal are at least twice the length of the decision of the FtT.
5. As Upper Tribunal Judge Rastogi said when permission to appeal to the Upper Tribunal was granted, all but one of the grounds of appeal relate to the way in which the FtT Judge addressed the ETS aspect of the appeal. She noted the grounds are lengthy and at times repetitive, but was just persuaded that permission should be granted. Grounds of Appeal formulated in this way which fail to highlight the essence of the complaint, are wasteful of costs.
6. I required Mr Saini to provide me with a coherent and succinct summary of the grounds of appeal relied upon, and I have been provided with what is headed as a “Summary of Appellant’s Grounds” that is dated 5th November 2024. I summarise the grounds of appeal:
i) The FtT Judge erred in law in deciding that she had jurisdiction to determine whether the appellant’s application for leave to remain should be refused on suitability grounds; Ground 1
ii) The FtT Judge unlawfully speculated as to the reasons why the appellant was invited to resit an English language test with an alternate Test centre, a matter not previously addressed by the respondent; Ground 2
iii) The FtT judge failed to make any findings on, or attach weight to the fact that the appellant began resitting his English Language Test and ceased reliance upon the ETS certificate; Ground 3
iv) The FtT Judge failed to have regard to the Respondent’s ETS Casework Instructions (v4.0 published 18 November 2020) which confirm that where a certificate is no longer relied upon “no further action” is to be taken. Furthermore in a later human rights application, the use of an invalid ETS certificate in a previous application is a relevant consideration but not a mandatory ground for refusal; Ground 4
v) The FtT Judge conducted an unlawful assessment of the appellant’s oral and documentary evidence by referring to the evidence as a ‘bare denial of having cheated or used a proxy’, without proper regard to the evidence before the Tribunal set out in two witness statements adopted by the appellant. The Judge referred to matters that were not raised by the respondent nor put to the appellant at the hearing of the appeal; Ground 5
vi) The FtT Judge failed to apply the correct two-stage approach to an allegation of dishonesty; Ground 6
vii) The FtT Judge failed to attach any weight to the unchallenged evidence of the appellant regarding his ability to speak the English language and the evidence of an IELTS test completed by the appellant on 24 May 2014; Ground 7
viii) The FtT Judge failed to lawfully address the appellant’s private life claim under paragraphs 276B(i) and 276ADE(1)(vi) of the Immigration Rules.
7. Mr Saini had nothing to add by way of oral submissions, to what is set out in the “Summary of Appellant’s Grounds” that were adopted by him.
8. In reply, Ms Simbhi submits the appellant filed a skeleton argument dated 19 September 2023 in support of his appeal before the FtT. The appellant outlined the issues in the appeal in paragraph [12]:
“12. The following issues will require assessment by the FTT in deciding this appeal:
a. ETS: Did the Appellant use a proxy in his ETS test as alleged by the Respondent since the Refusal of an in-time application for Leave to Remain on 15 May 2014?
…”
9. The appellant’s skeleton argument referred to the ‘ETS issue’ at paragraph [13] and claimed he had been afforded no opportunity to have his name cleared. It was therefore the appellant that wished to have that issue determined. The respondent filed a ‘review’ dated 4 December 2023. The respondent accepted the issues in the appeal were as identified by the appellant, and at paragraph [7(i)] of the review the respondent summarised her response to the ‘ETS issue” and referred to the evidence the respondent would rely upon. The respondent filed the evidence relied upon on the same day. Ms Simbi that in response to directions made by FtT Judge Dempster on 30 January 2024 the respondent considered the matter and filed a further “Review” dated 14 February 2024. Ms Simbhi submits that although it is unfortunate that the ‘Review’ does not identify specifically which of the suitability grounds is relied upon by the SSHD, the relevant ground was S-LTR.4.2. The appellant then filed and served an “Amended Appeal Skeleton Argument” in which the appellant said the respondent had not uploaded an amended decision in breach of the directions made by FtT Judge Dempster. The appellant raised the ‘jurisdiction’ issue. Nevertheless, from paragraph [25] onwards, the appellant engages with the matters set out in the respondent’s ‘Review’ regarding the withdrawal of the concession and the refusal of the application on suitability grounds. The appellant was, she submits, on Notice of the issue and was not ‘ambushed’. The appellant had ample opportunity to deal with the issue. Ms Simbhi submits the judge gave several reasons for rejecting the appellant’s claim. The allegation of ‘cheating’ or ‘deception’ was first made by the respondent at the time that the ‘ETS scandal’ had first become apparent. The respondent was not aware of the full scale of the scandal at the time. The judge considered the evidence before the Tribunal and accepted that the appellant’s test result was determined by ETS to be ‘invalid’ and gave adequate reasons for the finding made. At paragraph [24] the judge referred to the appellant’s ‘written and oral evidence’. Ms Simbhi submits it was open to the judge to find that the disputed test result was obtained by the appellant by deception and his application fell for refusal on suitability grounds, for the reasons set out in the decision.
10. Ms Simbhi submits that having proper regard to the appellant’s immigration history, the judge was entitled to conclude the appellant could not, even taking the appellant’s case at its highest, succeed under paragraph 276B of the immigration rules. On any view, quate apart from the question as to whether ‘Temporary Admission’ counts towards ‘lawful residence’, the appellant did not have leave to remain between 15 May 2014 and 17 March 2015. In the circumstances, Ms Simbhi submits it was open to the judge to dismiss the appeal for the reasons set out in the decision.
11. In response, Mr Saini submits that in the appellant’s skeleton argument dated 19 September 2023, he referred to the respondent’s decision and submitted the claim made by the respondent that the appellant had no valid leave since 23 December 2013 was incorrect. The appellant had made an ‘in-time’ application on 23 December 2013 that was refused on 15 May 2014. It was in the 15 May 2014 decision that the ‘ETS issue’ was first raised by the respondent. It was imperative that the appellant be able to confront that issue and clear his name. The issue was raised in the appeal so that the respondent was forced to take a position on the ETS allegation.
12. Mr Saini submits that in the appellant’s ‘Amended Skeleton Argument’ dated 7 March 2024, the appellant highlighted that the respondent had failed to issue a new decision, and he was seeking to assist the Tribunal. He submits paragraph S-LTR.4.2 of Appendix FM is a discretionary ground for refusal and the judge failed to consider the discretionary element. Mr Saini submits the matters relied upon by the judge had not been put to the appellant by the respondent at the hearing, or in the respondent’s decision. They were not put to the appellant by the judge either. Mr Saini submits he was not required to lead evidence in chief in circumstances where he believed the Tribunal did not have jurisdiction to determine the ‘ETS issue’. That is why the appellant was tendered for cross examination. Mr Saini submits that in reaching the decision the judge did not consider the evidence before the Tribunal regarding the correlation of the ETS and IELTS scores and failed to have regard to all relevant matters.
13. Mr Sani submits that if an individual is found not to have ‘cheated’, the case worker instructions make it clear they should be granted 6 months leave to remain.
Decision
14. I take each of the grounds of appeal as set out in the “Summary of the Appellant’s Grounds” in turn. Before doing so it is helpful to record once again that it is now well established that the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed or another judge can produce a better one. Baroness Hale put it in this way in AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1 AC 678), at [30]:
"Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently."
15. In Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 W.L.R. 48, in dismissing an appeal against findings of fact, the Court of Appeal emphasised that it was not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence; the question is whether the trial judge's conclusion was rationally insupportable.
Ground 1: Jurisdiction and Ambit of the appeal before the FtT
16. In summary, Mr Saini submits the judge erred in law in deciding she had jurisdiction to ‘determine the suitability issue’. There is in my judgement no merit whatsoever to this ground. The judge dealt with the ‘jurisdiction’ issue as a preliminary issue. It was not necessary for the judge to deal expressly with every point made by Mr Saini or to every material consideration set out in his written documents. The judge clearly had in mind the claim made by Mr Saini that the respondent had not filed an amended decision letter as directed, and thus that the ETS allegation was not a ‘live issue’ for the Tribunal. The Judge disagreed and referred to the reviews completed by the respondent. The judge quite properly noted the Tribunal’s jurisdiction is not defined by the limits of the matters raised in the refusal letter, as long as a party has had adequate notice of the issues raised and he has had sufficient time to deal with them.
17. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides for a right of appeal to the Tribunal where, inter alia, the Secretary of State has decided to refuse a human rights claim. By operation of section 84(2) of the 2002 Act, an appeal under section 82(1)(b) of the 2002 Act must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the FtT Rules”) require that the appellant must provide with the notice of appeal, inter alia, the notice of decision against which the appellant is appealing. There is nothing within that legal framework which limits the matters that the Tribunal is entitled to have regard to in determining whether the decision is unlawful under section 6 of the Human Rights Act 1998.
18. On 15 May 2023 the respondent refused the human rights application made by the appellant. A copy of the respondent’s prior decision of 15 May 2014 was before the FtT. The respondent noted in that decision that the scores from the tests taken by the appellant on 20 November 2013 at Cauldon College had been cancelled. The respondent said that as deception had been used in his application (made on 23 December 2023) the application was refused under paragraph 322(1A) of the immigration rules. The decision did not attract a right of appeal and was not challenged by the appellant by Judicial review.
19. As Ms Simbhi submits, it was the appellant himself who set out in his skeleton argument dated 19 September 2023 that one of the issues in the appeal was; “ ETS: Did the Appellant use a proxy in his ETS test as alleged by the Respondent since the Refusal of an in-time application for Leave to Remain on 15 May 2014?”. The issues identified by the appellant were, quite properly, considered by the respondent. The respondent filed a ‘review’ dated 4 December 2023. The respondent accepted the issues in the appeal were as identified by the appellant and at paragraph [7(i)] of the review, the respondent summarised her response to the ‘ETS issue” and the evidence the respondent would rely upon. The respondent filed the evidence relied upon on the same day.
20. There was a case management review hearing before FtT Judge Dempster. The Judge recorded that Ms Akhtar (the Presenting Officer) accepted that the appellant's refusal decision of 15 May 2023 had not asserted that the appellant's application fell for refusal on suitability grounds although by the time of the respondent's review, the significance of the refusal decision of 15 May 2014 had become apparent. Judge Dempster also recorded:
“It was accepted by Mr Saini that the alleged deception was not a new factual matter and much of the evidence addressing that issue was already included in the Appellant's Bundle. However, it was agreed by both advocates that the appellant was entitled to proper notice of the reasons for refusal and if suitability was now to be relied upon, the respondent should state so explicitly.”
21. On 30 January 2024 FtT Judge Dempster directed:
“1. By no later than 4pm 16 February 2024 the respondent is to consider whether the refusal of the appellant's application made on 14 February 2023 is maintained on suitability grounds and if so, to upload an amended decision;
2. By that date also, if available, the respondent should upload the following material-ETS Test Analysis, ETS Source Data, MIDA Matched Data, TOEIC Official Score Reports, ETS SELT Source Data with ETS Batch Number;
3. By no later than 4pm 8 March 2024, if required, the appellant is to upload an addendum to the Skeleton Argument and any additional evidence
…”
22. The FtT is empowered to issue directions regulating the filing and service of evidence in proceedings which provide sanctions in the event of non-compliance if the Tribunal considers this to be ‘just’. Although the Tribunal will not overlook failures to comply with directions issued by the Tribunal, it is apparent that the directions made did not provide for any sanction for failure to comply. The purpose of the direction was for the appellant to have proper notice of the reasons for refusal, and whether the issue of suitability was now to be relied upon.
23. In response to the direction made, the respondent considered the matter and filed a further “Review” dated 14 February 2024. The respondent confirmed that there is an issue as to whether the application made by the appellant falls for refusal on grounds of suitability. The respondent withdrew the concession set out in her decision dated 15 May 2023 that the application under Appendix Private Life does not fall for refusal on grounds of suitability in Section S-LTR of Appendix FM. The respondent referred to the previous decision of 15 May 2014 in which the respondent had said that in support of his application for leave to remain dated 23 December 2013, the appellant submitted a TOEIC certificate from Educational Testing Service (ETS). ETS confirmed that the test was obtained through deception. The issues identified by the parties represented the parameters, or scope of the appeal so that the FtT could focus upon the principal controversial issues, or the disputed issues. As Ms Simbhi submits, it is unfortunate that the ‘Review’ does not identify specifically which of the suitability ground is relied upon by the SSHD, but the respondent’s position was in my judgment clear.
24. In response, the appellant uploaded an Amended Skeleton Argument’ dated 7 March 2024, settled by Mr Saini, in which the appellant said the respondent had not uploaded an amended decision in breach of the directions made by FtT Judge Dempster. An additional issue was raised by the appellant. That is:
“Suitability and Jurisdictional Difficulties arising from the Respondent’s 2nd Review: Has the Respondent lawfully invoked several Suitability paragraphs and does the FTT have jurisdiction to decide the ETS issue without an Amended Refusal Letter ?”
25. Although that was the appellant’s primary position, as Ms Simbhi submits, from paragraph [25] onwards, the appellant engaged with the matters set out in the respondent’s ‘Review’ regarding the withdrawal of the concession and the refusal of the application on suitability grounds. In my judgment the appellant was, it is clear, on notice of the issue. In fact it was an issue squarely raised by the appellant himself. I accept the appellant had ample opportunity to deal with the issue and anticipating the possibility that the Tribunal may conclude it did have jurisdiction to deal with the issue, did so. One only has to look at the index to the appellant’s bundle before the FtT to see that the appellant sought to adduce evidence of his proficiency in the English language. The appellant had filed two witness statement addressing the allegation that he had cheated in the ETS tests. In readiness for the hearing of his appeal, he filed a witness statement dated 7 March 2024. The appellant states:
“2. I maintain that I did not cheat in my ETS test taken on 20 November 2013. I stand by the instructions I have given to my direct access barrister which formed the basis for my application and the supporting evidence indicating that I did not cheat.” (my emphasis)
The statement ends;:
“23. Based on the above, I humbly request that my appeal is allowed and that the Tribunal find that I did not cheat in my ETS test and I ought to have been granted Indefinite Leave to Remain in line with the arguments made by my barrister.” (my emphasis)
26. The appellant cannot now complain that he was not prepared to comprehensively deal with the ETS issue and would have deposed a supplementary witness statement. He had filed two witness statements and in both, he was himself inviting the Tribunal to find that he did not cheat in his ETS test. If there was evidence that he relied upon, it was for him to put that evidence before the Tribunal. The hearing is “not a dress rehearsal. It is the first and last night of the show”; See Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, at [114] to [115] (per Lewison LJ).
27. Having himself raised the issue as to whether the appellant used a proxy in his ETS test as alleged previously by the respondent and having invited the Tribunal to find that he did not cheat in his ETS test, it was open to the judge to determine that issue for the reasons she gave.
Ground 2: Unlawful assessment of the Respondent’s letter inviting the appellant to sit a further English Language Test
28. I reject the claims that the judge: (i) ‘unlawfully speculated’ as to the reason why the appellant was invited to resit his English Language test; (ii) the judge relied upon matters not advanced by the appellant or raised during the course of the hearing; (iii) the judge’s reasons do not explain why the letter sent to the appellant did not permit the appellant to withdraw his application; and (iv) does not grapple with the GCID records that indicate that the test was ‘valid’ despite knowing of the ETS allegation or the later entry which indicated the test was ‘invalid’ without more.
29. Again, it is necessary to consider the manner in which the respondent’s letter of 17 February 2014 was raised as relevant to the issues before the Tribunal. In the appellant’s amended skeleton argument dated 7 March 2024, the appellant referred, at paragraph [46], to the appellant’s immigration history. The appellant referred to the respondent’s letter to the appellant dated 17 February 2014 and the GCID records. The appellant claimed in that skeleton argument that the evidence of Peter Millington was that a test result may have been invalidated on the basis of ‘test administration irregularity’ so that an individual would be invited to retake a test. The appellant claimed that his test was said to be “valid” on 15 February 2014 and it could only have been invalidated or cancelled due to it being taken at a testing centre where numerous other results have been invalidated due to the use of proxies; not that he himself used a proxy. The appellant claimed that “is the only explanation for why the letter of 17 February 2014 was sent to the appellant”.
30. The judge summarised the claim made by the appellant at paragraphs [18] and [19] of the decision. At paragraphs [20] to [23] of the decision, the judge was engaging with the claims made by the appellant by reference to the evidence before the Tribunal. The appellant’s case was that the correspondence should, in context, be read in a particular way. The judge considered the claims made by the appellant by reference to the evidence relied upon by the respondent. Having had regard to the witness statement of Ms Cromer, it was undoubtedly open to the judge to conclude that there was an adequate explanation “for the changes of direction shown in the case notes”. The Judge also referred, at [21] to the evidence of Ms Collings and the explanation that in February 2014 when the full scale of the problem was unknown, applicants were offered the chance to withdraw their application or take a test with another provider if they wished to avoid any delay to the processing of their application. A copy of the letter dated 17 February 2014 was before the FtT in the appellant’s bundle. The letter clearly informs the appellant that his application has been placed on hold while investigations are carried out. The appellant was informed that if he is concerned about the delay in reaching a decision, he could choose to take a new test and submit that evidence to the respondent. The applicant was also informed in the “Frequently Asked Questions” section of the letter that if he needs to travel urgently, he may consider withdrawing his application and that he will need to re-apply if he wishes to re-enter the UK.
31. For the reasons set out by the judge it was undoubtedly open to the judge to find that the respondent’s spreadsheet and look up tool record the disputed test as being ‘invalid, and this means it is ‘invalid’ in the sense that there is evidence of proxy test taking, not that the result is invalid for some other reason.
32. The judge was in effect, carrying out an evaluation of the evidence in a way that judge’s of a specialist Tribunal carry out routinely. The implication in the submissions made by Mr Saini is that the issue was considered by the judge but not to the extent, or as desired by him and the appellant. This ground amounts to nothing more than a disagreement with a conclusion that was open to the judge on the evidence before the Tribunal.
Ground 3: Failure to assess the applicant’s compliance with the respondent’s letter
33. Mr Saini submits the judge failed to make any findings on, or attach weight to the fact that the appellant immediately began resitting his English Language test on the first available date and ceased to rely upon the ETS certificate.
34. This ground too has no merit. The appellant confirmed in his witness statement dated 7 March 2024 that the respondent’s letter of 17 February 2024 invited him to retake the test and that he then booked an IELTS exam. It appears he completed the test on 24 May 2014 and received an IELTS certificate dated 5 June 2014. The appellant confirms in his witness statement that he received the respondent’s decision of 15 May 2014 when he was still waiting to sit his test. There was no evidence before the FtT that the appellant had either informed the respondent that he had made arrangements to resit the test or that he no longer relied upon the previous test certificate that had been submitted with the application. At paragraph [25] the judge noted: “..the Appellant accepted that he had not written to the Respondent or taken any other action in the aftermath of receiving the letters of 17 February 2014 and the refusal of 15 May 2014 to challenge the assertion that the disputed test had been obtained by deception…”. The judge had regard to the steps taken by the appellant, and the lack of any attempt to challenge the very serious allegation made against the appellant.
Ground 4: Failure to assess the appeal against the ETS Casework Instructions
35. Mr Saini submits the judge failed to consider the appellant had already ceased reliance upon the ETS / TOEIC Certificate that had been submitted and had booked to retake a test on 24 May 2024. As I have already set out in relation to the third ground of appeal, there was no evidence before the FtT that the appellant had either informed the respondent that he had made arrangements to resit the test or that he no longer relied upon the previous test certificate that had been submitted with the application.
36. I reject the claim that the judge treated the previous use of an invalid ETS certificate in a previous application as anything more than a relevant consideration. Reading the decision of the FtT as a whole, it was open to the judge to find that the application fell for refusal on suitability grounds. The judge rejected the explanations provided by the appellant and found that the appellant has not been the victim of any historical injustice. Contrary to what is said by Mr Saini, the appellant did not inform the respondent that he ceased to rely upon the ETC certificates before the respondent reached the decision dated 15 May 2024. The appellant is quite simply unable to point to anything capable of supporting a claim that any discretion should have been exercised in his favour. This is not one of those cases, as identified in the respondent’s guidance published for Home Office staff where there has been some form of grant of leave to remain in spite of the ETS issue. Here, as the judge noted at [25], the appellant failed to do anything at all to challenge the allegation of cheating after the decision of 15 May 2014.
37. The judge found that the appellant’s application fell for refusal on grounds of suitability. That was, as the judge noted at [40] and [41], also relevant to the question of proportionality.
Ground 5: Unlawful assessment of the appellant’s subjective oral evidence and the Documentary evidence
38. On behalf of the appellant Mr Saini submits the two witness statements adopted by the appellant amounted to more than a ‘bare denial’ and included matters such as the Appellant’s English language ability since primary school and photographs of the appellant confirming his presence in the UK. Again, Mr Saini submits the judge refers to matters that were not put to the appellant.
39. The judge considered the evidence before the Tribunal and accepted that the appellant’s test result was determined by ETS to be ‘invalid’ and gave adequate reasons for the finding made. The appellant’s witness statements are dated 19 September 2023 and 7 March 2024. In the first statement, beyond the reference to the allegation made by the respondent, the appellant says nothing about the tests that he claimed to have completed. In the second statement the appellant confirms he had “submitted test evidence for the English Language requirement from ETS TOEIC” to the respondent. He refers to the steps that he then took to resit the test having received the respondent’s letter of 17 February 2014 but says nothing at all about the tests that he claims to have sat previously. The judge was right, at [24], to say that the appellant’s evidence amounted to “little more than a bare denial of having cheated or used a proxy”.
40. Authorities including AM (fair hearing) (Sudan) v SSHD [2015] UKUT 656, Abdi v Entry Clearance Officer [2023] EWCA Civ 1455, and Ullah v SSHD [2024] EWCA Civ 201 all establish a general principle that where the evidence of a witness is to be rejected, it should be challenged at the hearing. The decision of the Supreme Court in TUI UK Ltd v Griffiths re-emphasises the principle that fairness generally requires that if the evidence of a witness is to be rejected, whether that is a witness of fact or an expert witness, the evidence should be challenged at the hearing. As the Supreme Court said, the rationale of the rule, i.e. preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness, and cross-examination gives the witness the opportunity to explain or clarify his or her evidence. The Supreme Court confirmed that it is not an inflexible rule and there is bound to be some relaxation of the rule and the criterion is the overall fairness of the trial. The difficulty for the appellant here is that there was quite simply a lack of evidence. It is not for the respondent to cross-examine a witness upon evidence that is simply not before the Tribunal. There is a difference between evidence before the Tribunal that is not challenged and an absence of evidence. The judge quite properly points out, there was no evidence about the test itself, the appellant’s travel to the test centre and his reasons for undertaking the test in Essex, how the test was carried out, or what types of questions he was asked to answer. The appellant, as the judge said, was aware despite the passage of time since May 2014 of the allegation made by the respondent and the need to provide a full account but he simply failed to do so. Such evidence could properly have been adduced. The appellant simply failed to provide relevant evidence. The absence of relevant evidence was a matter that the Tribunal was entitled to have regard to.
41. Contrary to what is said by Mr Saini in the grounds of appeal and in his submissions before me, the judge engaged extensively, at paragraph [26] to [30] with the evidence before the Tribunal regarding the appellant’s schooling and qualifications over the years in reaching the decision. The appellant simply disagrees with the conclusion reached by the judge.
Ground 6: Failure to apply the correct test concerning dishonesty
42. Mr Saini submits the judge failed to apply the correct two-stage approach to dishonesty. The factual question that arose in the appeal was whether or not the appellant cheated in the ETS test in question. In DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 (IAC), the Upper Tribunal addressed; (i) the ‘legal and evidential burdens’ and (ii) the state of the evidence produced by the SSHD in ETS/TOEIC cases.
43. Drawing upon the decision of the Court of Appeal in Adeyodin v SSHD [2010] EWCA Civ 773; [2010] Imm AR 704, the Upper Tribunal held that that the reference to “false” in paragraph 322 of the immigration rules means dishonestly false. The Tribunal said:
“58. The evidence as a whole may consist of elements tending to support the proposition with the greatest of certainty, elements tending to support the proposition with much less certainty, elements that are neutral, and elements tending to undermine the proposition. It is their affect as a whole that counts. There is no requirement that any single element have any particular quality other than admissibility, in order to be allowed to contribute to the whole; and there is no requirement that the evidence as a whole have any degree of cogency except such as actually causes the trier of fact to be satisfied as set out above. If the evidence as a whole has that effect the fact is found; if it does not have this effect it is not found; and in neither case is anything contributed to the discourse by separate evaluation of the persuasive force of each item of evidence.”
44. Here, the judge was satisfied that the evidence adduced by the respondent establishes that the disputed test was determined by ETS to be ‘invalid’ in the sense that there was evidence of proxy test taking, not that the test result had been invalidated for some other reason. The judge went on to consider the appellant’s explanation and having considered the evidence relied upon by the appellant concluded that the respondent has discharged the burden of proof of showing that the disputed test result was obtained by deception. There is no error in the judge’s approach or the test applied.
Ground 7: Failure to apply MA (ETS – TOEIC testing) [2016] UKUT 450 and or failing to give reasons for rejecting the appellant’s uncontested evidence
45. Mr Saini submits the judge fails to give the appellant’s unchallenged evidence regarding his ability in the English language and the fact that he did not need to cheat, any weight.
46. The Upper Tribunal said in MA:
“57. … In the abstract, of course, there is a range of reasons why persons proficient in English may engage in TOEIC fraud. These include, inexhaustively, lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system. These reasons could conceivably overlap in individual cases and there is scope for other explanations for deceitful conduct in this sphere….”
47. The judge pointed at paragraph [26] of the decision, to the claim made by Mr Saini that the appellant had no need or motivation to cheat because he was at the material time, proficient in the English language. The judge set out the evidence relied upon by the appellant in paragraph [26]. The judge referred to the decision of the Upper Tribunal in MA at paragraph [27] of the decision. The judge weighed the evidence of the appellant with the evidence adduced by the respondent of widespread proxy test taking in ETS centres, including at Cauldon College. The judge considered the test scores achieved by the appellant, and reached a decision that was rooted in the evidence, and made a finding that was neither unreasonable nor irrational. The complaint made by Mr Saini amounts to no more than a disagreement with a finding and conclusion that was open to the judge.
Ground 7: Failure to assess the appellant’s private life under paragraphs 27B(i) and 276ADE(1)(vi) of the Immigration rules
48. Mr Saini submits the assessment of the appellant’s private life claim is flawed because the appellant has lived in the UK for all his adult life and the only shortfall in his ability to meet the requirements of paragraph 276B(i) was a 10-month gap which meant that the public interest in his removal held little weight.
49. This ground too has no merit. The judge accepted the appellant has established a private life in the UK. The issue in the appeal, as the judge recognised, is whether the decision is proportionate. The judge quite properly noted, at [33], that taking the appellant’s case at its highest, he was without leave between 15 May 2014 and the grant of temporary admission on 17 March 2015. The appellant cannot meet the requirements of paragraph 276B(i) of the rules on any view. The appellant did not adduce any evidence capable of supporting a claim that there are very significant obstacles to his integration in India.
50. The judge found the appellant has not suffered any ‘historical injustice’, and had regard, as she was required to, to the public interest considerations set out in s117B of the 2002 Act. Reading the decision as a whole, it was undoubtedly open to the judge to conclude that the scales fall on the side of the public interest and the respondent’s decision is proportionate.
Conclusion
51. I conclude by adopting the closing remarks of Volpi v Volpi [2022] EWCA Civ 464 at para. 65:
“This appeal demonstrates many features of appeals against findings of fact:
i) It seeks to retry the case afresh.
ii) It rests on a selection of evidence rather than the whole of the evidence that the judge heard (i.e "island hopping").
iii) It seeks to persuade an appeal court to form its own evaluation of the reliability of evidence when that is the quintessential function of the FtT judge who has seen and heard the witnesses.
iv) It seeks to persuade the appeal court to reattribute weight to the different strands of evidence.
v) It concentrates on verbal expressions that the judge used rather than engaging with the substance of the findings.
52. A fact-sensitive analysis of the evidence was required. The judge identified the core issues in this appeal as set out by the parties. I am satisfied that standing back, reading the decision as a whole, the judge's decision was based upon the evidence before the Tribunal. The findings and conclusions reached by the judge are neither irrational nor unreasonable, or findings that are wholly unsupported by the evidence. The judge reached a decision that was open to the Tribunal on the evidence.
53. It follows that I am satisfied that there is no material error of law in the decision of the FtT and I dismiss the appeal.
Notice of Decision
54. The appeal is dismissed.
55. The decision of First-tier Tribunal Judge Gray stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 March 2025