Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004390

First-tier Tribunal Nos: HU/51495/2022
IA/02361/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of May 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

Dijosh Varghese
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr P Lewis, Counsel instructed by Ascentim Legal Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

Heard at Field House on 11 April 2025

DECISION AND REASONS
Introduction
1. The appellant appeals with permission of Upper Tribunal Judge Landes against the decision of First-tier Tribunal Judge L K Gibbs (‘the Judge’), dated 21 June 2024.
Relevant Background
2. The appellant is a citizen of India. His date of birth is 11 October 1998. He entered the UK on 25 October 2009 as a Tier 4 (General) Student with leave valid until 31 May 2013. On 22 May 2013 the Appellant applied for an extension of leave to remain and was granted such on 21 June 2013 until 16 July 2014.
3. On 16 July 2014 the appellant applied for a further extension of leave to remain. His application was refused on 21 August 2015. The appellant appealed against that decision and in a decision dated 2 September 2016 his appeal was dismissed. First-tier Tribunal Judge Watson made the following findings:
“18. I find that the appellant used deception and has engaged in falsifying his test results with regard to the TOEIC. I find that the respondent has provided cogent evidence regarding widespread cheating at the particular test centre where the appellant claimed claim (sic) to take a language test and at the time that he claimed to take it. The documentary evidence provided is detailed and thorough and has not been challenged by the appellant. The respondent has also provided the print out relating to this appellant’s particular test which shows it as invalid. I find this cogent and extensive evidence in support of the respondent’s contention that deception was used.
19. The notification that the appellant’s test result is false in the bundle of documents is consistent with the great distance of that centre from the appellant’s address. It is consistent with the test being taken by a proxy as alleged by the respondent. The investigation into that particular centre’s tests showed overwhelming evidence of widespread cheating. The evidence provided by the respondent satisfied me that the evidential burden of proving that the TOEIC certificate had been procured by dishonesty is discharged.
20. I further find on the balance of probabilities that the appellant did not sit the test as claimed and that he submitted the test certificate dishonestly. He was unable to give convincing details of the test centre and the fact that it is so far away from his home.”
4. On 12 May 2020, the appellant applied for leave to remain based on his long residence. In a decision dated 26 February 2022, the respondent refused the application because in his application for an extension on 22 May 2013, he had submitted a Test of English for International Communication (“TOEIC”) certificate from Educational Testing Service (“ETS”), which the respondent was satisfied was fraudulently obtained.
The appeal to the First-tier Tribunal
5. The appellant appealed against the refusal of his human rights claim and the appeal came before First tier Tribunal Judge L K Gibbs (‘the Judge’), on 3 June 2024. Mr Turner of Counsel represented the appellant and Mr Talbot, a Home Office Presenting Officer, represented the respondent. The appellant and other witnesses gave evidence in English.
6. In a decision dated 21 June 2024 the Judge dismissed the appellant’s appeal. The Judge:
a. reminded herself that the question for her to determine was whether the respondent had discharged the burden establishing whether it is more probable than not that the individual acted dishonestly at [6];
b. noted that the issue had already been determined by Judge Watson in 2016 at [7], correctly identified that his decision was her starting point at [8] and reminded herself of the guidelines in Devaseelan (Second Appeals, ECHR, Extra-Territorial Effect) [2002] UKIAT 702 that:
“(4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection.”
c. found that the evidence regarding the appellant’s education in India was not challenged and that she was therefore satisfied that the appellant was taught in English since he was six years of age and that he obtained an Advanced Diploma in Business Management in March 2013, in the UK, having been taught in English. The Judge considered that it therefore seemed that the appellant did not need to cheat in his exam, but noted that there are various reasons that an individual may choose to use a proxy. The Judge was not satisfied that the evidence regarding the appellant’s education was sufficient to enable her to depart from Judge Watson’s findings at [12];
d. considered that the appellant’s wife’s evidence did not advance the appellant’s appeal, because she did not know the appellant in March 2013 when it was claimed he used a proxy at [13];
e. considered Mr Parambath’s evidence finding that “all he attests to is dropping the appellant and his friend in a carpark near the test centre, collecting them afterwards and hearing them say that the tests had gone well”. The Judge considered that Mr Parambath’s evidence falls into the category of evidence that should be treated “with the greatest circumspection” and that she could not rely on it to conclude that the appellant did not use a proxy because, as outlined in Varkey & Joseph (ETS – Hidden rooms) [2024] UKUT 00142 (IAC) there were many different ways that cheating took place, some of which involved the presence of the individuals at [13]-[14];
f. concluded that she was satisfied that the respondent discharged the burden of proof that the appellant submitted a fraudulently obtained test certificate and therefore did not meet the requirements of the Immigration Rules at [15]-[16];
g. found that the fact that the appellant could not meet the immigration rules carried significant weight in the public interest in his removal in her assessment of his appeal under Article 8 ECHR and the fact he had submitted a fraudulently obtained test certificate carried even more weight in the public interest in his removal at [16];
h. considered that she could place little weight on the appellant’s length of residence in the UK, because it was accrued whilst he had precarious immigration status in line with s.117B(5) of the Nationality, Immigration and Asylum Act 2002 and that family life with the appellant’s wife could continue in India as she was also an Indian national at [17];
i. concluded that the public interest in the appellant’s removal clearly outweighed any factors in his favour and the decision was therefore proportionate at [18].
The appeal to the Upper Tribunal
7. The appellant applied for permission to appeal to the Upper Tribunal relying on the following grounds:
a. Ground 1: Failure to give reasons as to the appellant’s alleged motive for cheating.
The appellant notes that as set out in Majunder [2016] EWCA Civ 1167 relevant factors in assessing whether a person cheated includes whether their “academic achievements are such that it was unnecessary or illogical for them to have cheated.” The appellant accepts that the caselaw also acknowledges that a person who is proficient in English may nonetheless cheat and cites the inexhaustive “range of reasons” identified in MA (ETS - TOEIC testing) [2016] UKUT 450 and cited in Varkey & Joseph (ETS - Hidden rooms) [2024] UKUT 142 (IAC).
The appellant submits that where an individual is proficient in English and therefore did not need to cheat in order to pass the test, a case specific analysis of what other incentives the appellant might have to cheat is required. The appellant submits that the judge erred because there was no analysis of whether any reasons for cheating were present in the appellant’s case given that he had taken and passed demanding exams in India and the UK.
The appellant submits that accordingly the Judge had failed to give adequate reasons for her conclusion that the appellant had cheated despite his proficiency in English at the material time.
b. Ground 2: Failure to have regard to relevant evidence.
The appellant submits that Judge Watson attached weight to “the great distance of the test centre from the appellant’s address” as a key reason for finding the appellant had cheated.
The appellant addressed this issue in his evidence before the Judge. He explained that there were no available dates near where he lived in Birmingham, although he lived in Birmingham he had been travelling to London regularly in order to attend classes at Agnes College where he was studying and that most of his friends were based in London. This was corroborated by the evidence of Mr Parambath in his witness statement and by the evidence of Shihab Sainudheen, who confirmed that at the time the appellant “used to visit us plenty of times at college” in East Ham.
The appellant submits that the Judge failed to have regard to that evidence at all.
c. Ground 3: Failure to give reasons for rejecting the Stanbury Report.
There was an expert report before the Judge from Chris Stanbury. The appellant acknowledged that Mr Stanbury’s evidence was analysed in Varkey & Joseph, a case which the Judge followed. However, the appellant submits that it was incumbent on the Judge to carry out her own factual analysis.
The appellant also submits that the findings of the Upper Tribunal in respect of Mr Stanbury’s evidence in Varkey & Joseph are flawed.
8. Permission to appeal was refused by the First-tier Tribunal. However the Upper Tribunal granted permission on 18 October 2024. The Upper Tribunal found:
“I consider ground 2 is arguable. Whilst the appellant had explained before Judge Watson that he booked the test at the college because there were no available dates in Birmingham, Judge Watson attached great weight to the distance of the college from the appellant’s home. In this context it is arguable that Judge Gibbs should have explicitly considered the appellant’s explanation with supporting witness evidence that he had in fact been travelling to East London once a week to attend college and visit friends so that the distance was not significant. There is no reference to this explanation or the evidence of the witnesses in that respect in Judge Gibbs’ decision. 3. Ground 1 avers that Judge Gibbs failed to give reasons as to the appellant’s alleged motive for cheating. Whilst it would have been speculation for the Judge to pick any particular motive for the appellant to cheat, it is arguable that when taken together with ground 2 (the alleged lack of significance of the college being in Essex) the Judge should have analysed what other obvious incentives the appellant might have had to cheat (para 5 grounds).. 4. Judge Gibbs did not analyse Mr Stanbury’s report. However I do not read ground 3 as suggesting that it was argued before her that despite the findings of the panel in Varkey Mr Stanbury’s report was relevant. It is said that there is a Robinson obvious error in the decision in Varkey. I do not see on the face of it that there is an arguable error, let alone one which is Robinson obvious in the sense that it has a strong prospect of success if argued. The points raised in the grounds are intricate arguments on quite subtle points rather than being readily discernible. Nevertheless, despite my comments I do not limit the grounds which may be argued.”
9. The matter was listed for an error of law hearing on 20 December 2024. That hearing was adjourned because a panel of the Upper Tribunal would, again, soon be hearing an appeal in which Mr Stanbury’s evidence would be assessed in substance and was at time listed for hearing on 25 January 2025.
10. At the hearing I raised the fact that the matter had previously been adjourned. I informed the parties that that case which would be assessing Mr Stanbury’s evidence was now listed for a case management hearing for the first available date after 7 April 2025. Mr Lewis confirmed that he would not be seeking an adjournment of the hearing. He submitted that grounds 1 and 2 stood alone and were unrelated to ground 3. He confirmed that although he continued to rely on ground 3, in his view, it was appropriate to proceed with the matter today, particularly given that that case due to be assessing Mr Stanbury’s evidence had not been listed for a substantive hearing. Mr Tufan agreed.
11. I heard detailed submissions from Mr Lewis for the appellant and Mr Tufan, for the respondent, who both focused their submissions on grounds 1 and 2.
Discussion
12. In deciding whether the Judge’s decision involved the making of a material error of law, I have reminded myself of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].
13. The Judge correctly identified that the decision of Judge Watson was her starting point. However, I am satisfied that the Judge then failed to adequately assess the fresh evidence before her and/or give adequate reasons for rejecting that evidence.
Ground 1
14. I am satisfied that the Judge failed to adequately reason her conclusion that the appellant had cheated notwithstanding the evidence of his proficiency in English.
15. The Judge correctly identified that a lack of proficiency in English was not the only reason a person may engage in fraud. Mr Lewis correctly accepted that the Judge was not required to make a finding as to why the appellant engaged in fraud. However, he submitted that in the circumstances of this case where none of the obvious reasons for exercising deception applied to the appellant the Judge was required to undertake a more detailed factual analysis. I am persuaded by Mr Lewis’s submission. The appellant had clearly engaged in high level examinations, both in the UK and in India. Therefore the obvious reasons, such as lack of confidence, fear of failure, lack of time and commitment did not automatically or obviously apply to the appellant. In those circumstances I am satisfied that that the Judge was obliged to analyse whether those or other incentives did apply to the appellant. Accordingly, I am satisfied that the Judge failed to give adequate reasons for her conclusion that the appellant had cheated.
Ground 2
16. I am also satisfied that the Judge failed to have regard to relevant evidence and/or give sufficient reasons for rejecting that evidence.
17. The Judge records the findings of Judge Watson that “the notification that the appellant’s test result is false in the bundle of documents is consistent with the great distance of that centre from the appellant’s address” and the fact that the test centre was “so far away from his home address adds to the weight of evidence that it was obtained through deception consistent with the results of the investigation.” It is clear that Judge Watson placed significant weight on the distance from the test centre from the appellant’s home.
18. As outlined in the appellant’s grounds the appellant provided a detailed explanation as to why he used a test centre far away from his home. There is no reference to that aspect of the appellant’s evidence anywhere in the decision. It is not clear whether the Judge accepted or rejected this aspect of the appellant’s evidence.
19. At paragraph 13 the Judge notes Mr Parambath’s evidence stating that “all he attests to is dropping the appellant and his friend in a carpark near the test centre, collecting them afterwards and hearing them say that the tests had gone well.” This does not accurately reflect Mr Parambath’s evidence in its entirety. Mr Parambath also explained that he and the appellant travelled to London weekly in order to attend classes, the night before and after the test they stayed at their friend’s (Mr Sainudheen) house in East Ham and that he drove the appellant back to Birmingham on the day of the test. This is clearly relevant evidence, in light of Judge Watson’s finding in respect of the distance of the test centre from the appellant’s home.
20. The Judge correctly directs herself to treat Mr Parambath’s evidence with the greatest circumspection in line with the Devaseelan guidelines. However the Devaseelan guidelines do not require her to exclude it from her consideration at all. I am satisfied that even though the Judge treated Mr Parambath’s evidence with the greatest circumspection, she was required to say whether she accepted that evidence, whether she rejected that evidence and what, if any impact, it had on her consideration of whether the appellant had used deception.
21. Mr Sainudheen also provided a letter confirming that the appellant used to visit him in East Ham. There is no reference to this evidence anywhere in the Judge’s decision.
22. I am satisfied that the appellant cannot know from reading the determination what Judge made of his, Mr Parambath’s and Mr Sainudheen’s evidence and that accordingly the Judge failed to give adequate reasons in respect of that evidence.
Ground 3
23. Having found that grounds 1 and 2 are made out, it is not necessary for me to go on to consider ground 3. I note that Mr Stanbury’s evidence is going to be assessed in the forthcoming case in the Upper Tribunal and in my view it is not appropriate to engage with ground 3 in this case.
24. Applying the guidance in paragraph 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 00046 (IAC), given the issues and the amount of fact-finding that will be required to do, I am satisfied that the appeal should be remitted to the First-tier Tribunal with no findings of fact preserved.
Notice of Decision
(a) There is an error of law in the decision of the First-tier Tribunal. Accordingly the decision of the First-tier Tribunal is set aside.
(b) The decision will be remitted to the First tier Tribunal to be heard by a different judge.
(c) No findings of fact are preserved.

G. Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 May 2025