Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2025-001964

First-tier Tribunal No: HU/53744/2021
IA/09735/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22 July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

LAXMAN RAO SATTU
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Pierre-Georget (Counsel, instructed by David Benson Solicitors Ltd)
For the Respondent: Mr K Ojo (Senior Home Office Presenting Officer)

Heard at Field House on 2 July 2025

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Loke in which the Appellant's appeal against the decision of the Secretary of State was allowed. The Respondent sought permission to appeal to the Upper Tribunal arguing that the Judge had made material errors of law, permission was granted by the First-tier Tribunal on the 2nd of May 2025.
2. The Appellant is a citizen of India born in May 1988. He came to the UK in 2011 on a student visa which expired on the 30th of September 2012. Before the expiry of the visa he applied for an extension as Tier 4 student. That was refused and following various proceedings the application was refused again in 2015. It is a preserved finding from the decision of Judge Jarvis that the Appellant did not receive the 2015 decision and accordingly the 2012 application remained outstanding and the Appellant's 2021 application was an application to vary the 2012 application.
3. The issue before Judge Loke was confined to whether the Appellant had used deception in his English language test taken in 2012, relevant to the application of paragraph 276B of the Immigration Rules. The appeal was heard at Taylor House on the 10th of June 2024 with the decision promulgated on the 4th of July 2024.
4. The Judge set out the background to the hearing noted the procedural history including the listing arrangements which had seen the appeal placed in a list without a Presenting Officer before being moved by the Tribunal to a court room with one. Paragraphs 7 and 8 dealt with the Presenting Officer’s application for an adjournment, the refusal of the application and the withdrawal of the Presenting Officer from the hearing.
5. The decision and discussion are set out in paragraphs 12 to 25 of the Decision. From the findings set out in paragraph 24 the Judge found that the Appellant's results as recorded were fraudulent results. The Judge found that it had not been shown that the Appellant had been complicit in the fraud and was not satisfied that it was more likely than not that he practised deception.
6. The Secretary of State sought permission to appeal to the Upper Tribunal in grounds of the 10th of July 2024. The first ground is headed “Misdirection in law/Perversity of finding”. Having set out paragraph 24 the Respondent asserted that that fraud had been committed and that the Appellant had inadequate language skills, it is argued that that was perverse. The grounds then set out paragraph 8 in full and argues that it was unfair for the Judge to refuse to give the Presenting Officer more time to prepare the appeal given the change of listing and the case law involved. Permission was granted on the 2nd of May2025.
7. For the Respondent Mr Ojo argued that the decision was perverse and that the Judge had not explained why the evidence of the Appellant was preferred. He pointed to the differences in the detail provided in the Appellant's witness statements, the second being 1½ years after the first and containing more detail. It was not clear why that had not been provided sooner.
8. In paragraph 23 the Judge had referred to DK and RK that it was “highly probable” that the Appellant had cheated. In paragraph 16 the Judge had found that the Appellant's English language ability was not particularly proficient and that he was not likely to have obtained a full score 12 years before. At paragraph 20 it was noted that even where hidden rooms had been used the evidence indicated that the candidate was likely to be aware that they would be unable to complete a genuine test.
9. Turning to the procedural point he noted that the Presenting Officer had been unprepared. This was a MyHMCTS case which had been lost in the ether. There was the report of Mr Stansbury and that had been served on the 7th of June 2024, only 3 days before the hearing which was not enough time for the Home Office to respond to it. The Judge referred to the 90 page report which had not been served in sufficient time to be properly considered.
10. Reference was also made to Varkey and Joseph, which is to be addressed by the Court of Appeal. This was a complex case. The skeleton argument had been submitted 1 day before the hearing and the Appellant's witness statement was introduced shortly before the hearing.
11. For the Appellant it was argued that submissions made by Mr Ojo had not formed the basis of the grant of permission to appeal which was limited to perversity. He argued that the decision was reasonably open to the Judge and the decision had focussed on the issue of complicity of the Appellant. Even with it being accepted that the results were fraudulent that did not preclude a finding that the Appellant was not dishonest. The Upper Tribunal had left it open to judges for allow appeals having heard the evidence.
12. With regard to the second ground he submitted that fairness attached to the party not to the Presenting Officer. The Respondent had agreed to the appeal proceeding without a Presenting Officer. The Judge had considered the report of Mr Stansbury and had applied Varkey and Joseph.
13. In reply it was noted that paragraph 24 was quoted in full in the grounds and the refusal to allow more time did make a difference, the Secretary of State was deprived of making submissions.
14. Taking ground 2 first I am satisfied that the approach of the Judge to the position of the Presenting Officer was fundamentally unfair. I take note that cases are listed well in advance of the hearing day and arrangements for the presence of a Presenting Officer will be made in advance of the hearing. Despite the time that had been available significant documentation came in very late, including the Appellant's witness statement, the Skeleton Argument and the 90 page Expert’s report.
15. The fact is that the Tribunal moved the appeal to obtain the services of a Presenting Officer. The time referred to by the Judge, 1½ hours, would not have given the Presenting Officer time to digest the original papers and the additional documents that had only very recently been served. Whether or not instructions were being sought the Presenting Officer would clearly have needed significantly more time to prepare the case and that was denied leading to the Presenting Officer withdrawing from the hearing.
16. That withdrawal in turn meant that there was no challenge by way of cross-examination to the Appellant's case. Cross-examination itself would have been informed by the case law and the contents of the Expert’s report. It is not enough to observe that the Judge followed the case law. The Appellant's account, amplified only shortly before the hearing by a late witness statement, was not challenged as it might have been had the Presenting Officer not been placed in the position she was by the Judge.
17. The submission that fairness attaches to the Respondent not to the Presenting Officer is erroneous. The Respondent acts through the Presenting Officers and is entitled for representatives to be given time to properly prepare cases, here that opportunity was denied.
18. This is relevant to ground 1 as the Appellant's credibility was central to the question of complicity. it was accepted that the Appellant's test results were fraudulent and that the Appellant's standard of English, even years after the test had been taken, would not have reached the level certified. Adding that the Judge noted it was “highly probable” the Appellant had cheated it does not make sense that cheating would be arranged on the Appellant's behalf, which would have to be organised and paid for, without his complicity. This is in the context of there being no cross-examination of the Appellant as the Presenting Officer had withdrawn having been placed, unfairly, in an impossible position.
19. For the reasons given I am satisfied that the Judge’s approach was procedurally unfair to the Respondent and that in the circumstances and on the evidence available it was not open to the Judge to find that the Appellant had not been complicit in the fraud accepted to have taken place. Having regard to the submissions made the decision of Judge Loke is set aside. The appeal is remitted to the First-tier Tribunal at Taylor House to be re-heard. Not before Judge Loke.
Notice of Decision
20. The decision of Judge Loke is set aside and remitted to the First-tier Tribunal for re-hearing. Not to be heard by Judge Loke.

Judge Parkes

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16th July 2025