Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003147
First-tier Tribunal No:
HU/64462/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

22nd October 2026

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

SANSUDDHA DIPU
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Malik KC, instructed by Lawmatic Solicitors
For the Respondent: Ms A Ahmed, Senior Presenting Officer

Heard at Field House on 21 September 2026

DECISION AND REASONS

1. The appellant is a Bangladeshi national who was born on 9 September 1989. He appeals with the permission of the First-tier Tribunal against the decision of First-tier Tribunal Judge Williams (“the judge”). By his decision of 8 May 2026, the judge dismissed the appellant’s appeal against the respondent’s refusal of his human rights claim.

Background

2. The appellant’s immigration history is of the utmost significance in this case, and it is necessary to set it out in more detail than might otherwise be desirable.

3. The appellant entered the United Kingdom on 8 October 2009. He held entry clearance as a student which was valid from 27 September 2009 to 31 December 2012.

4. On 28 December 2012, the appellant made an application for leave to remain as a student. That application was supported by a TOEIC English language certificate from Educational Testing Services (“ETS”), following tests which were taken at Eden College International on 24 October 2012. The application was successful, and the appellant was granted leave to remain from 5 March 2013 to 9 May 2015.

5. On 14 March 2014, the respondent decided to curtail the appellant’s leave because she had concluded, in reliance on information provided by ETS, that the appellant had used a proxy to take his English speaking test on 24 October 2012. Neither that decision nor the subsequent notice IS151A which was served on 2 October 2014 attracted a right of appeal.

6. On 13 March 2017, the appellant made a claim for asylum. That was deemed to be withdrawn on 14 July 2017 but further submissions were made and, on 6 August 2018, the appellant was refused asylum. He exercised his right of appeal against that decision.

7. On 1 October 2018, the appellant’s appeal was dismissed by Judge AK Hussain, following a hearing in Birmingham. The judge did not accept that the appellant was at risk on return to Bangladesh. He found the appellant not to be a credible witness. He considered that the appellant was “deeply unimpressive” and that his “account was convenient and peppered with inconsistencies, and in part, with out and out lies”.

8. The appellant did not leave the United Kingdom. Four and a half years later, on 9 March 2023, he made an application for leave to remain on human rights grounds. The application was made without the benefit of legal assistance and on the basis that the appellant had spent “morthon [sic] 13 years living in UK”. He said in his covering letter that he had “attached all sporting peppers [sic]” to support his application. The evidence supplied with the application consisted of a medical report from a Chartered Psychologist, Dr Kaur, who said that he experienced “high anxiety and low mood”.

9. The respondent considered and refused the application on 4 December 2023. She concluded that the application fell for refusal on suitability grounds because he had previously submitted an invalid TOEIC certificate. The respondent concluded that it would not be conducive to the public good to permit the appellant to remain in the UK and refused the application under S-LTR 1.6 of the Immigration Rules. In any event, she did not accept that the appellant met the eligibility requirements of the Rules, as he had not been in the UK for more than twenty years and there were not very significant obstacles to his reintegration to Bangladesh. The respondent did not accept that the appellant’s removal would be in breach of either Article 3 or Article 8 ECHR.

10. The appellant appealed to the First-tier Tribunal. In compliance with rule 24A(1)(a) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, an Appeal Skeleton Argument settled by Mr Malik KC was filed on 1 August 2024. Two issues were identified: (i) whether the appellant obtained his TOEIC certificate by fraud; and (ii) whether the appellant’s removal would be in breach of Article 8 ECHR. Mr Malik submitted that the questions were to be answered “no” and “yes” respectively. In compliance with rule 24A(1)(b), the appellant also filed copies of the evidence relied upon in the ASA. There were ten pages, comprising a short witness statement; the TOEIC certificate; two other educational certificates; and a pre-action letter from 2014.

11. In due course, the respondent produced a written Review of the case in accordance with rule 24A(3) and paragraph 7.11 of the Senior President of Tribunals’ Practice Direction. She submitted, in short, that the evidence showed that the appellant had cheated in his speaking test at Eden College and that his removal would be lawful. At [7], it was submitted that there were “cogent, relevant and reliable documents showing that the [appellant] had relied on a fraudulently obtained TOEIC certificate.” At [9], the respondent submitted that the arguments in the ASA and the appellant’s statement had been considered “but they fail to advance the [appellant’s] case.”

12. The respondent filed an additional bundle or 55 pages in support of her case. The evidence included what has come to be known in the ETS cases as both “generic” and “specific” evidence. There was also a report made by a Detective Inspector Andrew Carter, dated 5 May 2015. It provided further information about Eden International College. DI Carter explained that “Two suspects (a director and an invigilator) had been charged with conspiracy to facilitate offences specifically in relation to cheating of the TOEIC exam at Eden College.” A criminal trial was due to take place in 2016. Nothing was said about the outcome of the trial; DI Carter’s report was dated 5 May 2015.

13. The hearing before the judge took place on 23 April 2026. The appellant was represented by Mr Malik. The respondent was represented by a Presenting Officer: Ms Tabassum. No further evidence had been filed by the appellant in advance of the hearing but, at Mr Malik’s request, the judge admitted one additional item into evidence at the start of the hearing: a travel ticket from October 2014. The judge heard oral evidence from the appellant and submissions from the representatives before reserving his decision.

The Decision of the First-tier Tribunal

14. The judge noted that it had been agreed between the advocates that there was only a single issue for him to determine, which was whether the appellant had cheated in his TOEIC test. It was agreed that the resolution of the appeal on Article 8 ECHR grounds would follow the resolution of that issue: [4]-[5]. The judge resolved the question of fact adversely to the appellant and dismissed the appeal. His reasons for doing so appear at [8]-[23] of his decision.

15. At [9], the judge noted that it was accepted by Mr Malik that the respondent had adduced the evidence necessary to satisfy the evidential burden at the first stage of the enquiry described at [22] of Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 WLR 4055.

16. At [10], the judge turned to consider the second stage of the enquiry: whether the appellant had raised an innocent explanation which satisfied the minimum level of plausibility. He noted what the appellant said in his witness statement about the test. He accepted that the appellant had shown that he was in attendance on the day of the test but he did not consider that to show that it was the appellant who actually sat the test: [11]. At [12], the judge noted that the appellant claimed that he had no reason to cheat in his test because he was already fluent in English. The judge noted what had been said in MA (ETS – TEIC testing) Nigeria [2016] UKUT 450 (IAC), however, about the range of reasons why such a person may nevertheless have cheated.

17. At [13] and [14], the judge noted that the appellant had failed to engage with ETS and ask them why his results had been deemed invalid, having been aware of the allegation since 2014. At [15], the judge noted that the appellant had only recently obtained the recording of the test and had confirmed that the voice on the recording was not his.

18. At [16]-[20], the judge dealt with a submission made by Mr Malik about the limited cross-examination which had been undertaken by Ms Tabassum. That issue is at the heart of the appeal before me and it is appropriate to set out in full what the judge said about it:

[16] I have considered Mr Malik’s submission that the limited cross-examination means the appellant’s evidence is unchallenged. I pause to note the cross-examination of the appellant was four questions. The appellant was asked how much he paid for the test, how he paid for it, and whether he had any training lessons prior to the test. At the end of these three questions, I pointed out to Ms Tabassum that the respondent’s position, i.e. that the appellant had cheated, had not actually been put to the appellant.

[17] This issue was then put to the appellant, but as Mr Malik described, simply ‘invited the appellant to comment on her position’. I have reflected on whether the cursory way in which cross-examination was conducted means the appellant’s evidence should be treated as unchallenged. I do not find that it does.

[18] In reaching this conclusion, I bear in mind what was said at [78] of MR (Pakistan) v Secretary of State for the Home Department [2026] EWCA Civ 473. Whilst several submissions were made by Ms Tabassum which had not been specifically put to him in her cross-examination, all of the submissions pertained to the same point, that is that the appellant had used deception in providing to the respondent an ETS certificate for a test he had not taken himself. This is the only issue in dispute between the parties.

[19] The appellant has been aware of the cancellation of his test since at least 2014 and was aware it was a specific issue in these proceedings since he received the refusal decision in 2023. The respondent’s review dated November 2024 made clear that the explanation provided by the appellant in his witness statement was disputed. In these circumstances, I do not find the fact specific points were not put to him in cross examination means that I must accept his evidence.

[20] This is precisely the issue being dealt with in MR: It is necessary to identify, first, the nature of the ‘rule’ which was at issue in TUI. The rule is not a rule that (subject to exceptions) a party to litigation may not make submissions impugning the credibility or reliability of the evidence of a witness unless the witness has been cross-examined about those points. The rule as explained in the cases summarised by Lord Hodge is narrower than that. It is based on fairness, and on the principle, referred to by Bean LJ in his dissent, that litigation should not be conducted by ambush. The rule does not apply if the witness already knows, because the questions have been articulated earlier in the litigation, that his evidence is disputed, and, he is not, therefore, taken by surprise. The rule, rather, is that if he does not know in advance about the disputed matters, and has not been cross-examined about them, submissions cannot be made impugning his credibility (unless an exception to the rule applies).

19. The judge noted at [21] that the Project Façade report from DI Carter had concluded that there was “organised and widespread abuse” at Eden College. At [22], he noted what had been said by Judge Hussain about the appellant’s credibility in the 2018 appeal. At [23], he summarised his conclusions in this way:

[23] All of these factors taken together lead me to conclude that the respondent has shown the appellant more likely than not exercised deception in the use of a TOEIC test which he did not sit himself. I have found that the evidence served by the respondent called for an explanation from the appellant. There is no real explanation from the appellant beyond an assertion of innocence. I have found, when considering all of the factors in the round, that the appellant did cheat. It follows that his appeal is dismissed.

The Appeal to the Upper Tribunal

20. The appellant sought permission to appeal to the Upper Tribunal. There were five grounds of appeal:

(i) The judge descended into the arena, thereby abandon his independent adjudicative role and acting in a procedurally improper and unfair manner;
(ii) The judge acted unfairly in finding that the appellant had been involved in TOEIC fraud in circumstances where that allegation had not been put in cross-examination.
(iii) The judge’s conclusion on the TOEIC fraud issue is perverse.
(iv) The judge erred in taking an irrelevant matter (Judge Hussain’s conclusions) into account.
(v) The judge erred in its approach to the evidence, failed to engage with relevant matters, and gave inadequate reasons.

21. Since Judge Williams is a salaried judge of the First-tier Tribunal, the application for permission was placed before him: Bittar (PTA-FTT practice) [2025] UKUT 277 (IAC) refers. Whilst he did not accept the submission in the first ground that he had given the Presenting Officer “ideas for cross-examination”, he considered it arguable that he had erred in his consideration of MR (Pakistan) v SSHD for the reasons given in the grounds. He granted unrestricted permission.

22. By a response to the grounds of appeal dated 3 July 2026, the respondent indicated in writing that the appeal was opposed. By a reply dated 27 July 2026, Mr Malik observed that the Secretary of State’s response dealt only with the first ground and that what was said on that ground was “untenable in law”. In preparation for the hearing before me, Ms Ahmed filed and served a skeleton argument dated 17 August 2026.

23. I heard detailed submissions on the grounds of appeal from Mr Malik and Ms Ahmed. I am grateful for their assistance and I intend them no discourtesy in providing only the following outline of what was said.

Submissions

24. For the appellant, Mr Malik submitted that the judge had descended into arena and that the decision was procedurally unfair. Only four questions had been asked in cross-examination, and it had not been put to the appellant that he had cheated in his test. The judge had then noted to Ms Tabasum that she had not put the allegation to the appellant, whereupon she merely invited the appellant to comment on the respondent’s position. Whilst the judge would have been entitled to ask clarificatory questions of his own, it was procedurally improper for him to identify a point at the end of cross-examination and ask the respondent to raise it. To do so gave assistance to a party and interfered with the way in which the parties gave responsibility to their advocates; there might have been any number of reasons why the Presenting Officer had not put the allegation. The failure to put the allegation meant that the appeal had effectively been conceded and it was not for the judge to go behind that. Ms Ahmed was wrong to defend against this ground of appeal in her skeleton argument; the judge’s conduct had been facilitative to the Secretary of State’s case and that was improper. All of the authorities she cited were irrelevant.

25. Mr Malik submitted that “something quite remarkable” had occurred at the FtT hearing. The judge had suggested to the respondent’s advocate that she should put her case and seek comment from the appellant on the allegation of cheating. Despite that, the appellant had not been challenged; a cursory question asking the appellant for his views on the respondent’s allegation was insufficient. It was clear from Ullah v SSHD that cross-examination enabled a witness to explain his position in greater detail: [37]. He was unable to do so without it being suggested to him that the account he had given in his witness statement was untrue. It was concerning that the judge had not made reference to Ullah v SSHD in his decision, and MR (Pakistan) v SSHD, which he did cite, had not been mentioned at the hearing. MR (Pakistan) v SSHD was distinguishable in any event.

26. In relation to the third ground, Mr Malik submitted that the three-stage approach to such cases was firmly established. There had been enough said and done by the appellant to discharge the limited burden upon him. The respondent was unable to discharge the burden upon her, and the judge had reached an irrational conclusion in deciding otherwise.

27. Mr Malik submitted that Judge Hussain’s 2018 decision was an irrelevant matter for the purpose of this appeal. Ms Ahmed had submitted in her skeleton argument that the principles in Devaseelan [2003] Imm AR 1 applied. That was debatable, Mr Malik submitted, but the respondent had not raised the point in her response, in compliance with rule 24(1B) of the Tribunal Procedure (Upper Tribunal) Rules 2008. It was now too late for the point to be raised. In the immigration context, a prior decision was only relevant where Devaseelan applied.

28. Mr Malik submitted in relation to the fifth ground that the judge had left out of account a number of matters which had been recognised as relevant in the leading ETS authorities, including [18] of Majumder v SSHD [2016] EWCA Civ 1167 and [69] of SM & Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC). That the judge was required to engage with the evidence was clear from [33] of Ahsan v SSHD [2017] EWCA Civ 2009; [2018] Imm AR 531. The guidance had been cited in the skeleton argument before the FtT but had been overlooked by the judge. The statement at [23] of the decision (that the appellant had adduced “no real explanation beyond an assertion of innocence”) was ambiguous.

29. Ms Ahmed began her submissions by accepting that the point she sought to make about Devaseelan was one to which rule 24(1B) applied, and that she needed leave in order to raise it. She accepted that it was raised one month late. She submitted that the grant of permission to appeal had not focused on the point and that there was no prejudice to the appellant. The Secretary of State had relied on Devaseelan in her Review before the FtT. The appellant had pursued no human rights arguments in 2018.

30. I indicated that I would hear Ms Ahmed de bene esse on the Devaseelan point and would make a decision on its admissibility in writing.

31. In relation to the first ground, Ms Ahmed submitted that the judge had been entitled to give the Presenting Officer a “mere prompt” that she had not put her case. What followed was adequate, she submitted, to enable the appellant to comment on the case against him. This was unobjectionable; it was in accordance with the authorities cited in the respondent’s skeleton argument.

32. Ms Ahmed submitted that Ullah v SSHD was of no assistance. That case was distinguishable – there had been many missed opportunities for the respondent to put her case but in the instant appeal the point was ultimately put to the appellant for comment. The judge had been correct to conclude that MR (Pakistan) v SSHD was of greater assistance.

33. Ms Ahmed was content to rely on [21] of her skeleton argument in answer to the third ground. On the fourth, Ms Ahmed submitted that the appellant had not really attempted to exonerate himself. The respondent had set out her stall in the Review and the appellant had not sought meaningfully to respond. The judge had been entitled to say that there had been “no real explanation” tendered by the applicant; that was a summary of what had gone before, and it was necessary to consider the reasons given as a whole, rather than focusing on [21] of the decision.

34. In reply, Mr Malik submitted that the respondent had failed to provide any good reason whatsoever for having taken the Devaseelan point so late. It was immaterial that it had been raised in the Review, since it had been resolved adversely to the respondent below, as a result of which rule 24(1B) necessarily applied.

35. The authorities cited by the respondent in connection with ground one were distinguishable and consequently irrelevant. Ullah v SSHD was relevant. The judge had not taken Judge Hussain’s decision as his starting point and it was consequently irrelevant. In response to my question, Mr Malik submitted that it was absolutely clear that the judge had proceeded to the third question in Ullah v SSHD. The decision had been untenable if the judge had stopped at the second question. Cross-examination would not even have been necessary if the enquiry had stopped at the second question.

Analysis

36. It is necessary, before I turn to the individual grounds of appeal, to say something about the context in which this appeal is brought.

37. The first point of context concerns the chronology which I have set out above. The allegation that the appellant had used fraud in an application for leave to remain was first made in March 2014. He has been aware since then that the respondent considered that he had obtained his TOEIC certificate from Eden International College by fraud.

38. The second point of context concerns that college. As recorded at [7] of R (Gazi) v SSHD [2015] UKUT 327 (IAC), Eden International College was one of the two test centres featured in the 2014 Panorama programme which exposed the scale of fraud at ETS testing centres. DI Carter alleged in his statement that there was widespread fraud at that college. There was a Project Façade criminal investigation into it. It was, in short, one of the original “fraud factories”, to use the term which appears in the authorities including Ahsan v SSHD [2017] EWCA Civ 2009; [2018] Imm AR 531.

39. The third point of context concerns the “Reform” process which has been applied to appeals in the FtT for some years, as detailed in rule 24A and the SPT’s Practice Direction mentioned above. Pursuant to that process, an appeal is initiated and an ASA is filed, setting out what, in the opinion of the appellant’s representatives, are the issues in the case. The appellant may also provide evidence in support of their case at that stage. Thereafter, there is a review of the case undertaken by the respondent, who produces a written statement, setting out her answer to the appellant’s case, providing a “counter schedule” of issues, and detailing any additional evidence upon which reliance is to be placed.

40. It is only after that process has been completed that the case is ready to be considered substantively by the judge. The twofold rationale is apparent. It is to ensure, firstly, that meritorious cases might be identified and conceded by the respondent without the need for judicial involvement and, secondly, that the parties have applied their minds, in advance, to those cases which are to be contested, so that the issues for judicial consideration are properly focused and defined. The process has been considered in more detail, and endorsed, by the Upper Tribunal in Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC); [2023] Imm AR 1416 and by the Court of Appeal in AL (DRC) v SSHD [2026] EWCA Civ 370.

41. With those preliminary observations in mind, I will turn to the grounds of appeal.

Ground One – Entering the Arena

42. I do not accept that the judge’s decision was vitiated by procedural irregularity, apparent bias or other error on account of the events which Mr Malik described orally and in writing. The appellant had been on notice for more than ten years that the respondent considered him to have cheated in his TOEIC test. That allegation caused his student leave to be curtailed in 2014. When he made the application for leave to remain in 2024, the allegation formed the principal basis of refusal. Mr Malik’s appeal skeleton argument (“ASA”) set out his case against that allegation. The appellant provided the evidence on which he relied in support of the ASA. The Secretary of State answered the ASA with a detailed Review and a bundle of evidence which was designed to prove the case against the appellant.

43. When the case opened before the judge, the Presenting Officer agreed with Mr Malik that the dispositive issue was whether or not the appellant had cheated in his English test. There was no suggestion at any point that the case was to be conceded by the Presenting Officer.

44. Mr Malik then called his client, who adopted the short statement he had made on 30 July 2024, well before the respondent’s Review. He made clear in that statement that he “strongly denied” the allegation that he had cheated. Mr Malik asked the appellant a single additional question, which related to a travel ticket for the date of the TOEIC test. The Presenting Officer asked the appellant a handful of questions about the test. It is common ground that she did not put to the appellant that he had cheated in his TOEIC test. Nor did she suggest to the appellant that the denial of that allegation in his witness statement was a further layer of deceit. Mr Malik maintained before me that the respondent had effectively decided to concede the appeal at that point, and that it was not for the judge to intervene to suggest an alternative course.

45. I am unable to accept that submission, which overlooks all that had gone before in this case. There was no reason for the judge (or the appellant) to think that the respondent had decided not to rely on the allegation of fraud and to concede the case. Months before the hearing, the respondent had reviewed the case and decided to contest it. Minutes before the events in question, the Presenting Officer had indicated that the sole issue was the alleged fraud. It was fair and principled for the judge to make explicit that which was already obvious to everyone in the hearing room. He did so by saying to the Presenting Officer1:

JUDGE:
I think the respondent’s position is that Mr Dipu didn’t take the test himself and that he used a proxy to do so. Do you want to put that to him?

46. The Presenting Officer said that she did, and there followed this question and answer:

PRESENTING OFFICER:
The respondent’s position is – as you may well be aware from the refusal – that you didn’t take the actual test yourself and that a proxy took it on your behalf. Do you have any comments to make about that?

APPELLANT:
Definitely I sit the exam because I went that day and I did test in test room, and, you know, TOEIC certificate on the left has my picture on it. That picture was taken on the same day as exam and that picture proves that I sitted the exam. I have seen other TOEIC certificate. Not all have applicant’s own picture on it.

47. The fair-minded and informed observer is always aware of the full context and the arguments advanced by both parties: Helow v SSHD [2008] UKHL 62; [2008] 1 WLR 2416. The observer who was apprised of all that had gone before in this case would not consider there to be anything untoward in the judge having taken the step that he did at the end of the Presenting Officer’s questions.

48. I doubt that it is necessary to say anything more than that but I will, in deference to Mr Malik’s submissions, add this. It is possibly necessary to recall the origins of the phrase “descending into the arena”. It was in Yuill v Yuill [1945] P 15 that Lord Greene MR spoke evocatively of a judge “who himself conducts the examination” descending “into the arena” and his vision becoming “clouded by the dust of the conflict”. Sixty years later, in London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281, the Court of Appeal said:

It is, we think, important to appreciate that the risk identified by Lord Greene MR in Yuill v. Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge's descent into the arena (to adopt Lord Greene MR's description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair.

49. In this case, the judge is not said to have asked any questions of the appellant. He merely prompted the Presenting Officer to put her case explicitly. In doing so, the judge was not acting unfairly, nor did he evince any impairment on his own judgment to evaluate and weigh the evidence. The judge did not descend into the arena in the sense contemplated in the authorities.

50. Nor, in my judgment, is Mr Malik able to glean any assistance from the familiar authorities which underline the importance of justice being seen to be done. The judge did not give the Presenting Officer “ideas for cross-examination”, as Mr Malik suggested in his grounds of appeal. The step he took in prompting the respondent to put her case was not necessary because the respondent had stated and restated her case in writing but it was a step taken in fairness to the appellant. The fair-minded and informed observer would not think that the judge was somehow attempting to assist the respondent in prompting the Presenting Officer as he did.

Ground Two – Failure to Challenge the Appellant’s Account

51. It is then said by Mr Malik that it was procedurally unfair for the FtT to hold that the appellant had been involved in TOEIC fraud when his case had not been challenged in cross-examination. Again, and with respect to Mr Malik, this is a complaint which rests on form rather than substance when one considers the context which I have set out above.

52. Mr Malik raised this point before the judge. He cited Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 WLR 4055 in support of his submission that it would be procedurally unfair to find that the appellant had engaged in fraud when that point had not been put squarely to him in cross-examination. The submission that he made to the judge was that the respondent had been required “to look the witness in the eye, in the witness box, and say “You are lying when you say you did not cheat.””

53. It would have been better if the judge had considered that submission, and the authority upon which it was based, rather than relying on an authority (MR (Pakistan) v SSHD) which the advocates had not cited. On proper analysis, and taking account of the context, however, Ullah v SSHD was of no assistance to Mr Malik before the FtT or in this appeal. That is so because there can have been no doubt in the mind of anyone, including the appellant, that the respondent’s case before the judge was that the appellant had cheated in his TOEIC test and that he was lying when he asserted otherwise orally and in in writing. That had been her case against him since 2014, asserted and re-asserted in various ways and at various times.

54. In Ullah v SSHD, Green LJ recalled the basic rule, stated in Phipson on Evidence, 20th Edition (2022) and cited with approval by the Supreme Court in TUI v Griffiths [2023] UKSC 48; [2025] AC 374:

In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position.

This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.

55. Green LJ noted at [37] that the Supreme Court in Tui v Griffiths had pointed out that “cross-examination enables a witness to explain, in greater detail, his position” and that, whilst cross-examination might undermine the evidence of a witness, “not infrequently it serves to reinforce and strengthen it.” He reproduced something said by Lord Hodge in TUI v Griffiths, which included a statement that the opportunity was “particularly important when the opposing party intends to accuse the witness of dishonesty”.

56. It is to be noted that the rule stated in Phipson on Evidence is prefaced by the words “In general”. Those words cannot be glossed over or ignored. They reflect the principle that such “rules” are not be “engraved on tablets of stone”, as Lord Bridge famously said at p702 of Lloyd v McMahon [1987] AC 625. In the next sentence, he emphasised that context is all important:

what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.

57. It is therefore necessary to consider the context in Ullah v SSHD. Mr Ullah had applied for and been granted naturalisation as a British citizen. In his application for naturalisation, he had indicated that he had not engaged in any activities which might indicate that he was not a person of good character. Shortly after he was naturalised, he was arrested for criminal offences and was sentenced, on a plea, to a term of 51 weeks’ imprisonment.

58. In due course, the Secretary of State decided to deprive Mr Ullah of his British citizenship on the basis that it had been obtained dishonestly. She noted that the indictment in the Crown Court described offending which pre-dated the application for naturalisation but that he had failed to declare any such activities in that application. The appellant appealed against that decision to the First-tier Tribunal. He was called to give oral evidence. His appeal was allowed. The Secretary of State appealed to the Upper Tribunal, which set aside the decision of the FtT and remade the decision on the appeal by dismissing it, without hearing evidence from the appellant. The appellant appealed against that decision to the Court of Appeal.

59. Green LJ gave a judgment with which Andrews and Lewison LJJ agreed. Green LJ noted that the key question before the FtT was whether the appellant had acted dishonestly when he stated in his application for naturalisation that he had acted dishonestly: [21]. At [22], he noted that the legal burden of proving dishonesty lies upon the Secretary of State, and he made reference to the familiar three stage process which applies.

60. At [24], Green LJ noted that the appellant had stated in examination-in-chief before the First-tier Tribunal that he genuinely believed in the honesty of the answer he had given on the application for naturalisation. At [25], he noted that the Presenting Officer had not challenged the appellant as to the genuineness of his belief, and that the questioning instead “focused upon the details of the appellant’s conviction in 2013.” The FtT had accepted a submission made by the appellant that the respondent “could not, without challenging the appellant’s evidence on the central issues of the appellant’s state of mind and the genuineness of his belief, contend that he was dishonest exclusively based on his conviction.”

61. Green set out the way in which the Upper Tribunal had reasoned its decision at [26]-[27]. I need not make reference to that part of his judgment. Nor is it necessary to refer to what Green J said about the two-stage test for dishonesty from Ivey v Genting [2017] UKSC 67; [2018] AC 391 at [28]-[30].

62. At [31]-[35], Green LJ explained the basis upon which he had concluded that the decision of the FtT had been open to it, and why the Upper Tribunal had erred in law in overturning that decision. The fact that the appellant had pleaded guilty to an offence which involved him knowing or suspecting that he was in possession of criminal property was not decisive of the appeal and the UT had erred in concluding otherwise: [31]. The FtT had treated as plausible the appellant’s explanation that he had only suspected that he was in possession of criminal property, and it had been “entitled, and indeed bound, to attach relevance to the decision on the part of the respondent not to cross-examine him in order to test and challenge his evidence.”: [33]. Thus, the conclusions of the FtT judge were “well within the bounds of the discretion to be afforded to a judge required to find facts.” Green LJ went on in the same paragraph to conclude that

The FTT was therefore entitled to refer to an "evidential gap" in the SSHD's case arising from this failure to cross-examine upon this essential component of the case. The UT therefore erred when it said, at paragraph [32]: "the reality was that there was no such "gap" in the evidence: the conviction and relevant supporting documentation spoke for itself".

63. Green LJ then turned to TUI v Griffiths, which reinforced the conclusions he had drawn. He set out the general rule from Phipson on Evidence which I have already mentioned. He made reference to things said by Lord Hodge in his judgment in TUI v Griffiths and he noted at [38] that “the rule was not to be applied rigidly and there was bound to be some relaxation depending on the circumstances”. Examples of cases in which the rule might not apply had been given by Lord Hodge but the list was not intended to be exhaustive. At [43], having set out the competing submissions made before the court, Green LJ concluded that nothing mentioned by the Secretary of State in that case had “obviated the need for cross-examination”. At [44], Green LJ concluded his judgment with these observations:

Finally, the failure to cross-examine and the wide-ranging criticisms made by the SSHD of the approach of the UT must be placed into context. This case had a frustrating history as the FTT judge, with an evident and weary sense of resignation, described in detail at paragraphs [13] – [24] of the decision. Between the Appellant lodging his initial bundle on 11 March 2020 and the FTT hearing on 22 February 2021, the SSHD was given four opportunities to address deception and dishonesty, but did not do so. The SSHD also failed to comply with a series of procedural directions relating to preparation for the hearing and breached an undertaking it had given to the FTT on 11 January 2021. The Appellant’s position on dishonesty was set out in the original grounds of appeal to the FTT and skeleton dated 28 November 2019 so amounted to a central issue in dispute between the parties from the outset. One judge, intent upon placing the SSHD squarely on notice, warned that unless the Appellant’s case was addressed: “…there may be a presumption made that the Respondent does not take issue with the submissions contained in the Appellant’s Appeal Skeleton Argument”. The actual hearing during which Ullah gave evidence was the fifth (lost) opportunity to allege deception. The FTT decision, at paragraph [40], records that in closing submissions Mr Malik KC emphasised that the Appellant’s evidence had not been challenged in cross-examination, yet the Presenting Officer did not, even at that late stage, invite the Judge to recall the Appellant. This was the sixth missed opportunity to raise dishonesty. The FTT also recorded, at paragraph [21], that the Presenting Officer had only received the case shortly before the FTT hearing took place on 22 February 2021. In short there was no conceivable excuse for the Respondent not to challenge Ullah’s evidence on this pivotal issue, and the criticisms made of the approach of the FTT are without basis.

64. There was a tendency in Mr Malik’s submissions, both before me and before the judge in the First-tier Tribunal, to over-simplify what was said in Ullah v SSHD. It was suggested that the failure on the part of the Presenting Officer to attempt to pick apart the appellant’s account, or to put to him in stentorian terms that he was lying, meant, without more, that his appeal fell to be allowed because the respondent was unable as a matter of law to establish dishonesty.

65. Neither Ullah v SSHD nor TUI v Griffiths support that submission. It was quite obvious, as I have explained, that the appellant’s evidence was under challenge before and after the judge’s observation at the end of cross-examination. These proceedings were not undertaken on the basis of testimony in the witness box alone, as would have been the case when the rule in Browne v Dunne was established. As I have already explained at length, the respondent had stated and restated her case against the appellant. The Presenting Officer explored his account during her initial cross-examination, and he would have been well aware that she did not accept it. Once the judge had suggested that she put her case expressly, that was what she did, prompting the appellant to give the answer about his photograph on the TOEIC certificate. The context could not be more different from that which Green LJ described in the final paragraph of his judgment.

66. Ultimately, therefore, I do not accept Mr Malik’s submission that the respondent’s failure to look the appellant in the eye and accuse him of lying in the witness box was the end of the matter. The brevity of the cross-examination meant that the oral evidence brought no further support to the Secretary of State’s case but it did not mean that she was unable to establish the appellant’s deception on the evidence which she had already adduced. To conclude otherwise would be to overlook all of the context which I have set out above.

67. I have reached that conclusion without needing to refer to the decision which the judge cited: MR (Pakistan) v SSHD. Mr Malik submitted that the judge had erred in relying on that case because it was distinguishable from the instant one. I consider Mr Malik to be correct in that submission. As Elisabeth Laing LJ made clear at [80] of her judgment, the respondent’s case against MR did not require her to cast doubt on the accuracy or veracity of MR’s new evidence that he was a gay man in a cohabiting relationship in the UK. The respondent’s case “did not require the HOPO to put to MR that he was not a homosexual or that he was not in a durable relationship with AK, still less that he was lying.” The Presenting Officer’s submissions rested, instead, on “an orthodox application of Devaseelan”. At [80] of her judgment, Elisabeth Laing LJ referred to Ullah v SSHD, as she had elsewhere. I will only reproduce the second half of that paragraph:

The UT is better placed than is this court to assess the necessity for Old Bailey-style cross-examination in a case like this in which the issue is, not whether the appellant is lying, but whether his new evidence is enough to displace an earlier determination of the F-tT. For that reason, I accept Ms Elliot's reasons for distinguishing Ullah. The issue in that case was precisely whether the appellant had acted dishonestly, and whether when he gave an apparently innocent explanation, that should have been accepted or not. The Secretary of State's failure to challenge that explanation on six different occasions meant that his explanation stood.

68. As Mr Malik submitted, therefore, MR (Pakistan) v SSHD was decided on Devaseelan principles, whereas in Ullah v SSHD and the instant case, dishonesty is to the fore. MR (Pakistan) v SSHD establishes no binding principle which compels me to one conclusion or the other in this case, therefore.

69. There are nevertheless aspects of the judgments given by Elisabeth Laing and Snowden LJJ (Asplin LJ agreed with both judgments) which are of some assistance in this case. Elisabeth Laing LJ emphasised throughout her judgment the importance of context. At [78], she said that the principle upon which TUI v Griffiths was based was that litigation should not be conducted by ambush. At [83], having considered Shyti v SSHD [2023] EWCA Civ 770, she said that a judge in the FtT is required, in the absence of an express concession, “to consider the appeal in the round, by reference to the points taken in the decision, even if it has not had the help from the HOPO which it might expect.”. Snowden LJ also emphasised in his concurring judgment that Browne v Dunn and TUI v Griffiths were cases in which there had been a “lack of prior notice and an opportunity to deal with a point”. He too explained that “the rule in Browne v Dunn is simply one aspect of a judge’s overall task to ensure that a trial is fair and that it is, of necessity, a flexible principle”: [96]. And at [101], Snowden LJ said this:

To my mind it also does not matter whether such a submission could be characterised as a contention that MR was lying about his sexuality or not. As TUI makes clear, the principle of fairness that a party should not be able to make a submission to the court or tribunal which the opposing party or a witness has not had the opportunity to deal with, does not depend upon whether the submission alleges dishonesty or not.

70. Ultimately, therefore, my own conclusion might be expressed quite simply. The fact that the appellant was not “challenged” by the Presenting Officer was not determinative of the single issue in this case, and Mr Malik is wrong in asserting otherwise. The appellant was not ambushed by the allegation and he had had a fair opportunity, over the course of a decade or more, to set out his response to that allegation. The judge did not reach his conclusion by unfair means, and the limited cross-examination undertaken did not somehow operate to prevent the respondent establishing before the FtT the dishonesty which she had alleged since 2014. The judge was correct in his conclusion that “I do not find the fact specific points were not put to him in cross examination means that I must accept his evidence.”

Ground Three - Perversity

71. By this ground, Mr Malik submits that it was perverse for the judge to conclude that the appellant had acted dishonestly because his evidence had not been challenged, as a result of which “the appellant’s evidence-in-chief on the issue of fraud stood”. As I have already explained, I do not consider that to be an accurate account of the position in law, and that ground of appeal must also fail.

Ground Four – Irrelevant Matters Considered

72. By ground four, Mr Malik submits that the findings reached by Judge AK Hussain in 2018 were irrelevant to the assessment undertaken by the judge because they were not findings to which the principle in Devaseelan applies.

73. There was a good deal of argument before me about Ms Ahmed’s very belated attempt to submit that the principle in Devaseelan did apply to Judge Hussain’s decision. I do not propose to consider that issue at any length. I consider Mr Malik to be correct that this was a point on which the respondent did not prevail below and that she should have raised it in a respondent’s notice under rule 24(1B). He is also correct in his assertion that there is no good reason for the point being raised at such a late stage. Since there is no good reason for it being raised, and given the importance which must attach to procedural rigour in immigration appeals (as it does to judicial review), I do not give the respondent permission to raise the point.

74. That is immaterial, however, because I do not accept the argument put in ground four. I do not accept that a judge may only consider another judicial assessment of a person’s credibility when Devaseelan applies.

75. I confess that I was somewhat surprised by the submission. It is entirely commonplace for a judge to take into account what another judge has said about a person’s credibility. A judge who considers a deportation appeal in which the credibility of the appellant is at issue may legitimately take into account observations made by the judge who sentenced the appellant in the Crown Court. A judge who considers an asylum claim based on a fear of female genital mutilation might legitimately take into account observations made a family judge in the course of making a Female Genital Mutilation Prevention Order: GW (Sierra Leone) CG [2021] UKUT 108 (IAC). A judge who considers whether there would be a breach of Article 3 ECHR on account of the prison conditions in a receiving state might legitimately consider the observations of a District Judge in separate extradition proceedings brought against that person.

76. In none of those examples is the Devaseelan principle engaged; the underlying principle is more straightforward than that. When assessing whether a person is lying, it is relevant to consider whether they have been found to have lied in another context. In this case, it was relevant for Judge Williams to note that the appellant was found to have lied in his previous appeal. That was not the starting point for his assessment, but it was a relevant consideration because it was a relevant fact about his character.

Ground Five – Relevant Matters Omitted

77. By this ground, Mr Malik submits that the judge erred in failing to consider a number of relevant matters before deciding that the appellant was dishonest. The first point developed in this ground is that the judge failed to consider seriatim the list of factors set out by Beatson LJ at [18] of Majumder v SSHD [2016] EWCA Civ 1167:

what the person accused had to gain from being dishonest; what he had to lose; what is known about his character; the cultural environment in which he operated; how the individual accused of dishonesty performed under cross-examination, and whether the Tribunal's assessment of that person's English language proficiency is commensurate with his or her TOEIC scores; and whether his or her academic achievements are such that it was unnecessary or illogical for them to have cheated.

78. I do not consider this to represent a list of mandatory considerations which must be considered expressly in every case, however. The judge considered the evidence which was put forward on both sides and he reached a conclusion which was based on the evidence as a whole. He took account of the appellant’s evidence that he had previously fared well in English language tests, on the one hand, and he took account of the fact that he had previously attempted to secure asylum by deception on the other. He took account of the fact that cross-examination was “cursory”. Nothing more was required.

79. Nor do I accept that the FtT undertook “no fact-specific assessment”, as was asserted at [25] of the grounds of appeal. On the contrary, as I have said, the judge took account of all of the salient matters, including the limited response provided by the appellant to the generic and specific evidence relied on by the respondent. Nothing said in any of the reported authorities, including Ahsan v SSHD required more. It is quite clear, with respect to Mr Malik, that the judge did not treat the fact that the invalidation of the test scores as determinative; he weighed the competing evidence and reached a conclusion on that evidence as a whole.

80. Mr Malik also contended in this ground of appeal that it was a “straightforward error” for the judge to have attached weight, at [14], to the fact that the appellant’s voice did not appear on the recording he had obtained from ETS’s solicitors. But the process of reasoning which the judge developed over the course of [14]-[15] is one which features in all of the recent ETS decisions, including DK & RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 and Varkey & Joseph (ETS – hidden rooms) [2024] UKUT 00142, both of which were cited by the jugde. The judge noted that the appellant’s voice did not appear on the recording and he considered the plausibility of his claim that “the voice recording had been mixed up with someone else’s”. Drawing on what had been said in DK & RK, the judge did not accept that suggestion.

81. Mr Malik further submitted in this ground of appeal that the judge had erred in attaching weight to the appellant’s inaction in the face of the TOEIC allegation. He submits that the appellant could not have challenged the respondent’s conclusion “until the Secretary of State made an appealable decision following the Court of Appeal’s judgment in Ahsan”. That submission is misconceived. The decision under appeal in this case did not appear out of the blue; it was made in response to a human rights claim made by the appellant. He was obviously at liberty at any point after the Court of Appeal’s judgment in Ahsan to make a human rights claim, the refusal of which would have entitled him to an appeal in which he could have challenged the TOEIC conclusion, as he has in this appeal. He did not seek to make any such submissions in his appeal in 2018 and he then fell silent for years before making a human rights claim in 2024. The judge was entitled to conclude, as he evidently did, that this was not the behaviour of a wronged man.

82. The final point taken in this ground is that the judge erred in saying at [23] that the appellant provided “no real explanation… beyond an assertion of innocence”. Mr Malik submits that this was unreasoned and ambiguous. I do not accept either submission. Read alongside the authorities which the judge cited, the steps in his reasoning process and the ultimate conclusion he reached were perfectly clear and adequate. The appellant had taken the TOEIC test at a test centre where there was widespread fraud. His voice did not appear on the recording. Beyond saying that there had been some sort of mix-up, the appellant did not attempt to explain how or why the voice on the recording was not his. There was no expert evidence to call into question the chain of custody or to suggest that there might have been a “hidden room” at Eden College, where proxies took tests for customers without their knowledge. The judge viewed this as a case in which there was very little of substance to displace the obvious inference that the person whose voice appeared on the recording had been enlisted by the appellant to take his test. He was entitled to do so, and this is not a case in which it is necessary to have recourse to the degree of latitude which should be afforded to a specialist trial judge in an appeal of this nature.

83. I do not therefore consider any of the challenges to the judge’s decision to be made out and the appeal will be dismissed.

Notice of Decision

The appellant’s appeal is dismissed. The decision of the First-tier Tribunal shall stand.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 October 2026