Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004533

First-tier Tribunal No: HU/58939/2022
LH/02109/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 May 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

Secretary of State for the Home Department
Appellant
and

Farhad Ahmed
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Cunha, Senior Presenting Officer
For the Respondent: Mr Fripp Counsel instructed by IBW Solicitors

Heard at Field House on 7 April 2025

DECISION AND REASONS
1. The Secretary of State has appealed against a decision of First-tier Tribunal Judge Brannan (“the judge”) promulgated on 26 July 2024, allowing Mr Ahmed’s appeal on Article 8 ECHR grounds against a decision dated 8 November 2022, refusing his human right’s claim. First-tier Tribunal Judge Lester granted permission on 2 October 2024.
Background
2. Mr Ahmed is a citizen of Bangladesh. He entered the United Kingdom on 17 January 2010 as a student. He then submitted an application for leave to remain in the UK on 27 November 2012. This was granted following an appeal against an initial decision to refuse. His leave expired on 15 October 2015. The appellant’s leave was then curtailed to end on 16 September 2015 because it was considered that he had submitted false documents in his application dated 27 November 2012.
3. On 3 August 2021 Mr Ahmed submitted an application on the basis of his private life in the UK referring to his length of residence in the UK and submitting that he would not be able to reintegrate to Bangladesh. The application was refused on 8 November 2022 which is the decision under appeal.
Respondent’s decision
4. The Secretary of State refused the application on the grounds of suitability pursuant to S-LTR 4. 2 of Appendix FM on the basis that Mr Ahmed had used false representations in a previous application for leave to remain. It was asserted that Mr Ahmed enclosed an ETS certificate later confirmed to be invalid in support of his application dated 27 November 2012. From the information provided by ETS the Secretary of State was satisfied that this certificate was fraudulently obtained. Mr Ahmed did not have a wife or children in the UK and did not meet the requirements of paragraph 276ADE (1)(vi) of the rules firstly because the application fell for refusal on the grounds of suitability and secondly because there were no very significant obstacles to reintegration to Bangladesh. There were no exceptional circumstances which would warrant a grant of leave outside of the immigration rules.
5. In his grounds of appeal to the First-tier Tribunal, Mr Ahmed submitted that the decision was unlawful under the Human Rights Act 1998. He asserted that he now had a relationship with a skilled worker.
The decision of the First-tier Tribunal
6. At the hearing, the parties agreed that there were three issues in the appeal which were as follows:
a) Had the respondent proved on the balance of probabilities that Mr Ahmed cheated in an English language test and relied on that result in an application made on 27 November so that the suitability ground for refusal at S-LTR 4.2 was made out?
b) If not, did Mr Ahmed face very significant obstacles to integration in Bangladesh therefore satisfying the relevant provision (now at Appendix Private Life PL5 (b))?
c) Would the removal of Mr Ahmed breach protected rights pursuant to Article 8 ECHR?
7. The judge heard oral evidence from Mr Ahmed who was cross examined. The judge found that the Secretary of State had not proved that Mr Ahmed had used deception in an immigration application and therefore that the suitability grounds did not apply to him. The judge found that there were not very significant obstacles to integration in Bangladesh. The judge allowed the appeal on the basis that this was an exceptional case where the removal of Mr Ahmed would amount to a disproportionate interference in his family life. The judge took into account the principle in Ahsan and Others v SSHD [2017] EWCA Civ 2009 that where an appellant has been found not to have cheated, other things being equal, the Secretary of State should exercise discretion to grant leave to put an appellant in the position he would have been in if his leave had not been curtailed. The judge found that the weight of public interest in removal was reduced following Ashan.
Grounds of appeal to the Upper Tribunal (‘UT’)
8. The grounds of appeal are brief and poorly pleaded under the heading “Failure to give reasoning- error of omission”. They stated as follows:
(1) The Tribunal has found that the appellant has not committed ETS fraud. The respondent notes that the appellant has provided no evidence to corroborate his claim that he sat the test at an alternative test centre. The Tribunal has failed to consider that.
(2) The respondent notes that part of the registration process for these tests is to provide proof of identity, a passport for example. The respondent is unclear how the appellant’s identity documents would have been passed to sit a fraudulent test in the centre the respondent asserts that the test took place. Or indeed why that would happen. In failing to consider this the Tribunal has erred in law.
Permission to appeal
9. Permission was granted by First-tier Tribunal Judge Lester in a short decision dated 2 October 2024 which is worded as follows;
“The grounds disclose an arguable error of law. Permission is granted.
Rule 24 response
10. Mr Ahmed provided a rule 24 response.
11. In summary, this asserts that the grounds do not identity an arguable error of law and amount to a disagreement with the decision. The issues were agreed by the parties at the outset of the hearing and the judge took into account the points raised by the Secretary of State for the Home Department. It was open to the judge to find that the Secretary of State had not adduced evidence that Mr Ahmed had used the result of a test taken in Leicester in support of an application on 27 November 2012. Mr Ahmed was not cross examined in relation to whether he took a test at Colwell College Leicester.
Oral Submissions
12. Ms Cunha submitted that the judge misapplied DK and RK (ETS: SSHD evidence proof) India [2022] UKUT 112 and failed to give adequate reasons for his finding that Mr Ahmed did not use deception and that this submission was in essence a clarification of the written grounds of appeal.
13. She asserted that the judge failed to adequately consider the evidence adduced by the Secretary of State in the form of the “look up tool” which identified that an individual with Mr Ahmed’s name and passport number took a test at Colville College on 27 November 2012 and then failed to apply DK and RK to this evidence. She submitted that in line with DK and RK this was overwhelming evidence that Mr Ahmed had taken a proxy test and that the judge should have started from the position that the Secretary of State had satisfied the burden. It was for the judge to consider the remainder of the evidence including Mr Ahmed’s “innocent explanation”. Her submission was that the Secretary of State had manifestly provided evidence that someone with Mr Ahmed’s name, date of birth and passport number had taken the ETS test on the date asserted and that this was sufficient on its own to demonstrate that the burden was made out. She submitted that it was immaterial that the Presenting Officer had not put to Mr Ahmed that he had taken the test at Colville College in Leicester because in essence there was sufficient evidence of this in the form of the “look up tool”. The cross examination was in respect of Mr Ahmed’s evidence that he took the test at Skyline College because this was his “innocent application” and the cross examination was designed to undermine this evidence.
14. She accepted that the Secretary of State did not adduce a copy of the 2012 application. She drew our attention to the fact that the initial position of Mr Ahmed was that there was a lack of procedural safeguarding, that the decision was unlawful and that an irregularity could have occurred at the test centre. He did not initially deny taking the test at Colville college and did not state that he had taken a test elsewhere. She highlighted that in his statement at no point did Mr Ahmed say that he had not provided the certificate in the 2012 application. She also submitted that the judge failed to give adequate reasons why the “look up “ tool is illegible and why this was not sufficient to discharge the burden.
15. In summary, the judge erred by finding that there was insufficient evidence adduced by the Secretary of State to prove deception because the judge misunderstood and misapplied DK and RK. The “look up tool” was strong evidence that Mr Ahmed took the test in Leicester. The judge erred by departing from DK and RK.
16. Mr Fripp submitted that the judge properly directed himself to the correct authorities and applied the caselaw correctly. He had regard to the evidence before him including the “look up tool”, written submissions and skeleton argument. The judge was entitled to consider that this was not a “typical case” because Mr Ahmed’s evidence was that he took the test elsewhere, rather than asserting that some kind of technical error had been made
17. Mr Fripp properly conceded that there were in fact legible copies of the “look up tool” before the judge and we have had sight of the legible documents.
18. Mr Fripp submitted that in the absence of any evidence that the test certificate was used to support the application in 2012 the judge was entitled to find that the Secretary of State had not discharged the burden of proof. Further, it was never put to Mr Ahmed that he took a test at Colville college using a proxy. Finally, the judge also considered other factors that may have been of relevance such as Mr Ahmed’s motivation to use a proxy to obtain an English language test. The judge was aware of the explanation given by the appellant.
Initial observations – grounds of appeal and grant of permission
19. We refer the parties to the well-known Joint Presidential Guidance 2019 No1:Permission to appeal to UTIAC and authorities (such as OK (PTA; alternative findings) Ukraine [2020] UKUT 00044(IAC) and Secretary of State for the Home Department v Sherma Joseph [2022] Imm AR 1360) which give guidance on permission applications and grants which emphasise that professional representatives should set out the basis of the application for permission with an appropriate degree of particularity and legibility. In this appeal the grounds were very poorly drafted. We remind the Secretary of State of the need for an application for permission to appeal to be pleaded by reference to an arguable error of law, not a disagreement of fact or weight. The written grounds in this appeal as originally drafted are incoherent. The first ground asserts that the judge found that the appellant has not committed ETS fraud when the judge actually did not make any finding on this issue and then appears to suggest that the burden was on Mr Ahmed to demonstrate that he had taken a test at a different college. The second ground reads as a submission and it is not clear if any such submission was made at the hearing. The grounds do not assert that the judge erred by making failing to make findings in relation to whether the appellant obtained an ETS certificate by proxy. It is trite that a party must identify those grounds on which they wish to rely at the outset. There was no application to amend the grounds.
20. We also note that the grant of permission was similarly brief and did not identify why the judge thought that the grounds were arguable in any detail.
Case evolvement
21. In this appeal the position of the parties evolved over the course of the appeal. The initial allegation that Mr Ahmed cheated in an English language test and then used the certificate to support an immigration application dated 27 November 2012 was made in the refusal of the human rights claim on 8 November 2022. However the refusal did not identify the college at which the test was taken nor the date of the test.
22. Mr Ahmed appealed on 21 November 2022. In his appeal he focused on his family life with his partner.
23. A written submission included in Mr Ahmed’s bundle uploaded on 9 March 2023 asserted that the Secretary of State had not adduced evidence to discharge the legal burden that the appellant procured his TOEIC certificate by deceit because no evidence specific to him had been provided by the Secretary of State. In his first statement at paragraph 8 Mr Ahmed asserted that he did not use deception in a previous immigration application. He genuinely believed that the test centre was a genuine test centre. He did not use deception taking the test. There was no need for him to use a proxy because he had a high level of English. At paragraph 11 he stated that he had been advised that the respondent had not produced sufficient evidence to discharge the legal burden. He then said at paragraph 12 that he took the test at Skyline Village in E14 and gave details of what happened. He said that he used that certificate for the application. He said the invalid test result could have been due to an irregularity.
24. The Secretary of State carried out a review on 3 April 2023 and maintained her position. The review asserted that Mr Ahmed took his test at Colwell College Leicester on 18 April 2012 and referred to the assertion in the skeleton argument that the Secretary of State had not made out her case. With the review the Secretary of State provided a further bundle of evidence including an extract from an ETS “look up tool” stating that a test by someone with the same name of as Mr Ahmed with his passport number was taken at Colwell College and that the test result had been categorised as “invalid”. It was said that this in accordance with RK and DK that this was sufficient to demonstrate that Mr Ahmed had obtained his English language test result by the use of a proxy because in line with the headnote of that case the evidence of fraudulent activity was overwhelming.
25. On 24 July Mr Ahmed submitted his signed statement. This was the same statement which had previously been submitted.
26. The appeal was heard on 17 July 2024 over a year later by which point Mr Ahmed had had a baby with his partner and further evidence had been adduced in respect of his relationship and family life.
27. It is common ground that the respondent did not adduce a copy of the application dated 27 November 2012 nor a copy of the documents appended to that application, nor any evidence that the application had relied on an English language test taken at Colwell College in Leicester on 18 April 2012 in that application. At the appeal before the First-tier Tribunal, the Secretary of State’s representative did not seek an adjournment either prior to the hearing or at the hearing to adduce any further evidence.
28. Mr Ahmed asserted that he had taken a test on at Skyline Village in E14. He was cross examined in relation to the test he said he had taken at Skyline Village.
29. Mr Ahmed asserts that it was not directly put to him that he had in fact taken an English language test at Colwell College Leicester or that he had used the certificate in his application.
Discussion and Analysis
30. It is trite that the burden of proof in a deception case lies on the Secretary of State. DK and RK (ETS: SSHD evidence proof) India [2022] UKUT 112 states:
1. The evidence currently being tendered on behalf of the Secretary of State in ETS cases is amply sufficient to discharge the burden of proof and so requires a response from any appellant whose test entry is attributed to a proxy.
2. The burden of proving the fraud or dishonesty is on the Secretary of State and the standard of proof is the balance of probabilities.
3. The burdens of proof do not switch between parties but are those assigned by law.
31. We are satisfied that the judge directed himself properly to this authority and set out the paragraphs above at [9]. We take into account that a judge in a specialist Tribunal should be taken to have applied the correct legal tests. This is an answer to Ms Ahmed’s submissions which in any event strayed beyond the grounds of appeal as originally drafted.
32. The judge clarified the issues at [5] which we have set out above.
33. The judge clearly had regard to all the evidence before him from [4] and from [17] to [21] the judge set out Mr Ahmed’s evidence in his witness statement. The judge considered the further evidence bundle at [24] and recorded Mr Ahmed’s oral evidence. We do not agree that the look up tool documentation was illegible. However, this was not pleaded in the grounds of appeal. The judge was manifestly aware that there was a conflict in the evidence.
34. We are satisfied that the judge was entitled to state at [13];
“This is not a typical ETS case because the appellant does not accept that he did the test in which the respondent claims he cheated. It is necessary to look at the history of these proceedings to understand this properly”.
35. The judge noted that it was not put to Mr Ahmed that he took an English language test at Colwell college at [27]. We have had regard to the principles reiterated in Tui UK Ltd v Griffiths UKSC [2021] 0208 that where a party wants to challenge evidence, questions must be asked in cross examination so that the party has an opportunity to respond. Where no cross examination to challenge evidence has taken place a judge will be entitled to attach relevance to this.
36. The issue that the judge had to decide in respect of the suitability requirements was whether in accordance with S-LTR 4. 2, Mr Ahmed had used deception in a previous application. The burden as the judge correctly observed was on the Secretary of State. The “look up tool” may have been sufficient to demonstrate that Mr Ahmed had used a proxy in a test at Colville College on 18 April 2012 but that was not sufficient on its own to demonstrate that Mr Ahmed used deception in the application itself.
37. At [25] the judge found;
“There is no evidence before me that the result of a test taken in Leicester was used in the application on 27 November 2012. Therefore the Secretary of State’s evidence does not satisfy the burden of proof on the Secretary of State”.
38. We can find no error in the judge’s approach to this issue which had been identified by both parties as one of the primary issues in the appeal at the outset of the hearing.
39. The judge went on to consider further factors including the level of Mr Ahmed’s English, and what actions he had taken since his leave was curtailed.
40. At [33] the judge stated;
“Looking at all the evidence in the round relating to the English language test Respondent has not proven on the balance of probabilities that the Appellant used deception in an immigration application by relying on an English language test in which he had cheated. This is not to say that the appellant has proven that he did not. It is just that the burden, sitting with the respondent, has not been satisfied looking at all the evidence in the round”.
41. In our view the judge was properly entitled to make this finding having considered the evidence before him. We emphasise here that the judge did not make any finding at all about whether the appellant did or did not take the test at Colwell college or whether he cheated in that test. This was not put to Mr Ahmed in cross examination, as the judge correctly observed, and the grounds are silent on these issues.
42. In particular, we note that the grounds did not plead that the judge erred by failing to making these findings nor that the omission of these findings were material to the outcome of the appeal. Nor did the grounds seek to challenge the Judge’s overall Article 8 ECHR assessment and findings.
43. In our view neither ground as pleaded is made out. They both amount to a disagreement with the decision and an attempt to re-argue the appeal.
44. For these reasons we dismiss the Secretary of State’s appeal and uphold the decision of the First tier Tribunal allowing the appeal pursuant to Article 8 ECHR.

R J Owens

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 May 2025