Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-001010
UI-2025-001009

First-tier Tribunal Nos: HU/01121/2024
HU/01124/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of May 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
and
UPPER TRIBUNAL JUDGE PICKUP
(sitting in retirement)

Between

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Appellant
and

VAISHALIBEN BHAVESHKUMAR PATEL
BHAVESHKUMAR VINUBHAI PATEL
Respondents

Representation:
For the Appellant: Ms Tariq, Senior Presenting Officer
For the Respondent: Mr Saini, instructed via Direct Access

Heard at Field House on 2 May 2025

DECISION AND REASONS

1. The Secretary of State appeals against the decision of the First-tier Tribunal (“FtT”) to allow the appeals of Mr and Mrs Patel on human rights grounds. To avoid confusion, we will refer to the parties as they were before the FtT: the Patels as the appellants and the Secretary of State as the respondent.

Relevant Background

2. The appellants are Indian nationals. Mrs Patel, the first appellant, was born on 24 May 1977. Mr Patel, the second appellant, was born on 24 May 1969. They are married.

3. The appellants entered the UK on 12 February 2010. The first appellant had been granted entry clearance as a student, valid from 15 January 2010 to 26 March 2012. The second appellant had been granted entry clearance for the same period, as her dependant.

4. On 22 March 2012, the appellants applied for further leave to remain in the same capacities. The applications were successful, and leave was granted from 7 June 2013 to 27 July 2015.

5. The appellants applied for further leave on grounds of Long Residence in July 2015 but their applications were rejected on 25 September 2015 because no biometrics had been enrolled. They made further such applications on 8 October 2015 but those applications were refused and certified as clearly unfounded on 7 March 2016. On 30 August 2016, both appellants were served with notice that they were overstayers.

6. The second appellant was detained following an enforcement visit in November 2016. He made further submissions which were not accepted to be a fresh human rights claim. In July 2017, he made an asylum claim which was refused in September 2017.

7. Meanwhile, the first appellant had made an application for leave to remain on Article 8 ECHR grounds in January 2017. That was rejected on 3 July 2017. In July 2017, she made a further application for leave on grounds of Long Residence. That was rejected on 14 December 2017.

8. The appellants did not leave the UK and in January 2023, they applied jointly for a Fee Waiver. The application was granted, and the appellants then made an application for leave under the EU Settlement Scheme. That application was refused on 28 May 2023, however.

9. On 11 March 2023, the appellants applied for leave to remain on Human Rights grounds. The application was made without the benefit of legal advice. They stated that they were applying on the basis of their private lives in the UK. They had been in the UK for thirteen years and they were dependent on the charity of friends and family.

10. In the covering letter which accompanied the online application form, the first appellant explained that she had been a genuine student and that she had genuinely passed a TOEIC language test in the UK but her reputation had been ‘tarnished’ by the fact that the test was undertaken at an Educational Testing Services (“ETS”) facility. At [27] of the letter, having cited a number of authorities on such cases, the first appellant invited the respondent to ‘take a decision on my TOEIC results so that my genuineness can be established’. In the conclusion of the letter, the first appellant states that they had faced ‘insurmountable difficulties … since 2014’ as a result of her TOEIC test. She contended that she should be permitted a right of appeal in the event of a refusal.

11. The respondent refused the applications on 12 June 2024. She considered the applications under Appendix FM but we need say nothing about that; this has never been a family life case. The respondent then turned to consider the private life submissions. She did not accept that either appellant would encounter very significant obstacles to reintegration to India. Whilst it was accepted that the appellants would have accrued some private life in the UK since their arrival, it was considered proportionate to interfere with it. The appellants had remained without permission to do so and could have had no expectation that they would be permitted to remain. There were, in the Secretary of State’s judgement, no compassionate factors which warranted the grant of leave.

The Appeal to the First-tier Tribunal

12. The appellants appealed to the FtT. In preparation for the appeal hearing before that Tribunal, they filed and served a bundle of 195 pages, comprising witness statements and evidence in support of those statements. It is not necessary at this stage to attempt a rehearsal of that evidence, although we should note that the respondent had made disclosure to the appellants under the Subject Access Request (“SAR”) procedure, and some of that material was reproduced at pp12-36 of the bundle. We will refer to that evidence as ‘the SAR material’.

13. The appeal was allocated to the float list at Hatton Cross and was heard by the judge on 7 January 2025. Mr Saini of counsel represented the appellants, as he did before us. The respondent was unrepresented, and the judge noted ‘No HOPO – float list’ at the start of his decision. The appeal proceeded on the basis of submissions only. Mr Saini had not prepared a skeleton argument. The judge summarised his oral submissions in this way, at [15]:

The thrust of his argument was that the first appellant had been subject to an erroneous allegation “behind-the-scenes” that she had cheated in an ETS examination. Her tremendous difficulty was that the allegation was never been put to her. Indeed the respondent’s position appeared wholly contradictory, because the current application confirmed that there were no suitability grounds justifying refusal. He said that the first appellant and her husband had been trying to resolve this matter ever since they became aware of the allegation. They only became aware of the allegation when the husband was detained. The first appellant maintains that she did not cheat. Her leave expired because she was unable to renew her leave to remain because colleges would not sponsor her because she had an ETS English test.

14. The judge made his findings from [17]. He reminded himself that the case was one concerning private life only. He directed himself in accordance with R (Razgar) v SSHD [2004] UKHL 27; [2004] 2 AC 368. He found that there was a private life and that it was for him to determine whether it was proportionate for the respondent to interfere with it. From [28] onwards, the judge turned to consider that question. He reminded himself of Huang v SSHD [2007] UKHL 11; [2007] 2 AC 167, and he noted that it was for the respondent to establish that the decision was a proportionate one. He then went on to undertake a ‘balance sheet’ analysis of proportionality, in accordance with Hesham Ali v SSHD [2016] UKSC 60; [2016] 1 WLR 4799.

15. The judge noted factors which militated in favour of the appellants at [32]. He noted factors which weighed against the appellants at [33]. A number of the factors described in those paragraphs are uncontentious and, frankly, correct. Given their importance to the resolution of this appeal, however, it is necessary to make reference to some of aspects of the judge’s analysis in these sub-divided paragraphs.

16. At [32](d)-(e), the judge noted that the first appellant’s studies had come to an end at two separate colleges when those colleges lost their sponsorship licences. That was not a matter for which she was responsible and she was a genuine student. The appellants had relied on the first appellant’s TOEIC certificate when they made their successful applications for leave to remain in 2013.

17. At [32](h), the judge noted that the respondent had not deployed ‘suitability’ grounds of refusal in the decision under appeal and in the following paragraph he stated that the respondent had ‘not identified any evidence of dishonesty’. At [32](l)-(o), the judge returned to deal with Mr Saini’s argument about the TOEIC exam in more detail:

(l) When the second appellant was detained in November 2016, the first appellant was questioned over the telephone. She was questioned by an immigration officer about whether she had sat the TOIEC exam. This was the first time that the TOIEC exam was raised with the first appellant. The first appellant maintained that she sat the exam. That has been her persistent position since this telephone questioning [A 12].

(m) Details of the TOIEC exam appear in the subject access material [A 387]. There is nothing inherently suspicious about the range of scores recorded. These records relate to an in country application submitted in order to pursue a Level 6 diploma in hospitality and tourism management.

(n) The substance of the TOIEC allegation has never been put to the first appellant. No lookup tool analysis has been served on the first appellant. There is no information from the ETS TOIEC Test Centre Lookup Tool in the subject access material.

(o) The respondent failed to engage with representation submitted on 30 June 2016 and the S 120 notice dated 8 November 2016 and further amendments to the section 120 notice dated 15 December 2016 [A 150]. The respondent’s approach in a letter dated 14 January 2017 was to defer consideration of representations until “the point when your clients are imminently removable from the UK” [A 148]. The respondent’s position was that the appellants should submit a fresh application for leave to remain.

18. At [33](u), having reminded himself of the statutory public interest consideration in s117B(4) of the Nationality, Immigration and Asylum Act 2002, the judge noted that the provision applied to the appellants. He went on to note, however, that “there is an unsubstantiated TOEIC allegation that significantly explains their immigration history.” Having recalled s117B(5) in the following paragraph, the judge made further reference to a “background unproven allegation of cheating that has blighted the appellants’ immigration history”. In the final sub-paragraph of [33], the judge also made reference to this, describing it as “the key underlying issue in respect of the first appellant’s English-language test certificate.

19. The judge went on to weigh the competing cases at [34], which we must also reproduce in full:

In reaching my decision I have weighed the above factors in the balance sheet. In my judgement the cumulative factors on the appellants’ side tip the balancing exercise in their favour. The first appellant did not cheat in her TOIEC exam and there is no evidence of any dishonesty. That is a weighty consideration in the cumulative factors on the appellants’ side. That is sufficient to outweigh the public interest in immigration control. Indeed the respondent in her ETS casebook instructions recognises that where an appellant has not cheated (even if an appeal was unsuccessful) there should be a grant of 6 months outside the rules [see page 9 of the guidance].

20. So it was that the appeal was allowed on Article 8 ECHR grounds.

The Appeal to the Upper Tribunal

21. The respondent sought permission to appeal. The primary ground of appeal is that the judge made a material mistake of fact. The respondent maintained that the respondent had never raised an allegation that the first appellant had cheated in her TOEIC test. Her applications for leave to remain had been refused because she had no Certificate of Approval for Sponsorship (“CAS”) and not because of any allegation of fraud. It was submitted that the judge had erred in placing determinative weight on a mistaken understanding of the factual matrix of the case. In the alternative, the respondent contended that the judge had taken an irrelevant matter (TOEIC) into account.

22. Permission to appeal was granted by the First-tier Tribunal, which considered the single ground to be arguable.

23. The respondent filed and served a consolidated appeal bundle of 309 pages in advance of the hearing. Mr Saini filed and served a skeleton argument.

Submissions

24. Ms Tariq submitted that the judge had erred in proceeding on the basis that there had been a TOEIC allegation made by the respondent. There was no such allegation in the instant refusal letter, or in the past. The SAR material showed that the historical applications had not been refused due to a TOEIC allegation but because of the invalidity of the first appellant’s CAS. The relevant parts of the 2013 decision were set out in the internal departmental notes. The refusal had been under paragraphs 245ZX(c) and (d) of the Immigration Rules (as then in force), and there was no reference to grounds of suitability or to grounds of refusal under Part 9 of those rules. Mr Saini attached significance (as had the judge) to the assertion that it had been suggested to the first appellant in interview in 2016 that she had cheated in her test. Even assuming that that was so, however, no such allegation had formally been levelled against the appellants and it was not a relevant consideration in this appeal. It was clear that the judge’s decision to allow the appeal had been premised on this error, and the entire decision was unsustainable as a result.

25. Mr Saini submitted that the judge had not made a material mistake of fact, which was the central allegation in the grounds of appeal. He had been fully aware of the facts of the case, and had analysed them with some care. It had not been said by the appellants that an allegation of TOEIC fraud had been formally raised by the respondent but there had been a raid, during which the second appellant was interviewed, as was his wife, and they had been asked about the TOEIC test during those interviews. Mr Saini submitted that there had been a “non-substantive allegation of deception” made by the respondent. The appellants had provided the SAR disclosure to the judge as they had nothing to hide. The issue was that the ETS allegation had prevented the first appellant from securing another CAS, which was correctly found by the judge to be a weighty consideration. There was a letter at p172 of the consolidated bundle which suggested that the respondent had chosen not to raise the TOEIC allegation in 2017, and had decided to raise it at the point when the appellants were ‘imminently removable’. What the appellants sought to do was to bring that allegation to the fore so that it could be litigated before the FtT. The judge had resolved that allegation in favour of the appellants and the decision he had reached was open to him as a matter of law.

26. We indicated that we did not need to hear from Ms Tariq in response. We stated that we were satisfied that the judge had erred in law in the manner contended by the Secretary of State and that his decision should be set aside in full for reasons which would follow in writing. We asked the advocates for submissions on relief. Both submitted that the appeal should be remitted to be heard by another judge of the FtT de novo. We agreed.

Analysis

27. Our reasons for allowing the Secretary of State’s appeal may be stated very shortly. She has never pursued an allegation of TOEIC fraud against the first appellant, and the judge erred in concluding otherwise. It is however necessary to examine the evidence and the chronology in a little more detail to explain that conclusion.

28. The first appellant states that she relied upon a TOEIC English language test when she applied for further leave to remain in 2012. There is a corresponding entry in the SAR material at p62 of the consolidated bundle. The respondent was satisfied that the English Language requirements were met by reference to that certificate, and that the first appellant met the other requirements for leave to remain as a Tier 4 student. She was accordingly granted leave in order to pursue a course in Hospitality and Tourism Management at Level 6 of the National Qualifications Framework. (There was some delay in processing this application because the college which had initially sponsored the appellant had lost its licence but she was subsequently granted leave in reliance on a different sponsor.)

29. The first appellant states that the college which had sponsored her successful application then lost its licence. She states that she then struggled to obtain a new sponsor because she had taken her previous English language test at an ETS test centre. The respondent did not make an allegation that the appellant had cheated in her TOEIC test, however, and this is not a case in which there is any suggestion that ETS has itself decided to treat her test result as “invalid”, or even as “questionable” (as to which see, most recently, the decision in Varkey & Joseph (ETS – Hidden rooms) [2024] UKUT 142 (IAC).

30. When the respondent came to refuse the subsequent applications which we have described above, she made no reference to an allegation of TOEIC fraud, whether as a ground of ‘suitability’ refusal or otherwise. We were taken through the papers with care by Ms Tariq and Mr Saini and there is no evidence to support the contention that there was nevertheless an ‘underlying’ allegation of TOEIC fraud.

31. The judge accepted that the appellants were asked questions about the first appellant’s English language test in November 2016. It was obviously open to the judge to accept that evidence, but it falls far short (with respect to the judge) of providing any basis for thinking that there is an underlying belief, harboured by the respondent for more than a decade, that the first appellant is a cheat. As we pointed out to Mr Saini at the hearing, police officers and immigration officers might put questions to a person in an interview but decide, on consideration, not to pursue the matter. We do not know why the appellants were asked about the first appellant’s English language test but what we do know is that the respondent has never made any formal allegation that she cheated. In referring to ‘the allegation’ as being unsubstantiated, the judge erred; there was no such allegation, unsubstantiated or otherwise.

32. At the risk of stating the obvious, there are three categories of person who took an ETS TOEIC test in the past. There are those who used a proxy to take their speaking test. ETS categorises their tests as “invalid”. There are those who took their speaking test at a test centre which is deemed to be unreliable but in respect of whom there is no positive evidence of cheating. ETS categorises their test results as “questionable”. Then there are those who took an ETS test which is not considered by either ETS or the Home Office to be unreliable in any way. In this case, there is no basis in the evidence for thinking that the first appellant is in anything other than the third category. If an Immigration Officer baulked at having seen reference to ETS in the papers, the respondent clearly decided that there was no proper basis on which to pursue the issue raised in the interview in November 2016.

33. Mr Saini accepted that he had “struggled to get his head around the case” but stated that the key to understanding it was potentially to be found in a letter at p172 of the bundle. Here, he submitted, was evidence that there was an underlying allegation which the respondent had not yet sought to deploy. The letter is dated 14 January 2017 from the respondent’s Post-Decision Casework department to the appellants’ then solicitors. It states:

Further to your letters of 30 June 2016 and 08 November 2016 the representations submitted on behalf of your clients will be considered at the point when your clients are imminently removable from the UK. If your clients want to have their representations considered before then, it is open to your clients to submit a fresh application for leave to remain in the UK.

34. The judge in the FtT made no reference to that letter. In our judgment, it provides no assistance to Mr Saini whatsoever. We have not been provided with the letters of 30 June and 8 November 2016. In any event, the meaning of this letter is quite clear. It does not mean that the respondent has decided to withhold an allegation of cheating until the point of removal. It does mean that the respondent has noted that the appellants wish to make a human rights claim and that they are at liberty to do so by way of further submissions, failing which it will be considered prior to removal. As the Upper Tribunal explained in MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC); [2020] Imm AR 906, the Secretary of State is entitled to expect human rights claims to be made in a particular way if they are to be substantively considered.

35. The appellants seemingly believe that the respondent has for more than a decade harboured a suspicion that the first appellant cheated in her TOEIC test in 2012/2013. As we have recorded above, they asked the respondent to make any such allegation when they made their latest application for leave to remain, so that it could be litigated before the FtT. But there was no reference to any such allegation in the latest refusal letter, and it was no function of the FtT to investigate an allegation which had never been made. The absence of an ETS Look Up Tool was a matter on which the judge seized. Had this been a case in which an ETS allegation had been made, he would have been correct to do so. But the absence of an ETS Look Up Tool is an irrelevance when no allegation of cheating has ever been made.

36. The judge was in error in treating this as a case in which an ETS allegation which was yet to be made had somehow ‘blighted’ the appellants’ lives for the last decade. There was no evidence on which to base such a finding, and the entire enquiry was an irrelevance because no allegation had ever been pursued.

37. The first appellant’s concern in the witness statement before the FtT was principally that everyone who had taken a TOEIC test had been ‘tarnished… without individual assessment’ and that she had been unable to get another CAS because she had taken a TOEIC test in the past. That is not a matter for which the Secretary of State is responsible, however. She reacted to the Panorama documentary by making ‘TOEIC allegations’, as they are sometimes called, against tens of thousands of individuals. Some of those allegations were found to be true, some of them were found to be false. If an unfounded allegation was made against an individual, causing their immigration status to become derailed, that would likely be a matter of significance in any subsequent consideration of their human rights. That is indeed recognised in the published policy to which the judge referred in his decision. But where no such allegation has ever been made, and the individual finds it difficult to obtain a new CAS merely because they took a TOEIC test in the past, that is not a matter which can legitimately feature in the assessment of proportionality. The respondent has not perpetrated any historical injustice which could reduce the weight which is ordinarily to be attached to the maintenance of lawful immigration control. The absence of an allegation cannot, as a matter of logic, feature on the appellants’ side of the balance.

38. The appellants have overstayed in the UK for nearly a decade. The feature of their appeals which caused the judge to find in their favour was the ETS allegation which never existed. Whilst it would have been open to Ms Tariq to invite us to remake the decisions on the appeals immediately, she did not do so. We agree with her, and Mr Saini, that the fairer course is for the appeals to be remitted to the FtT to be heard de novo. In doing so, however, we expect that the next judge will have regard to the basis on which we found that the FtT erred.

Notice of Decision

The First-tier Tribunal’s decision involved the making of an error on a point of law and that decision is set aside. The appeal is remitted to the First-tier Tribunal to be heard afresh by a different judge.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 May 2025