Secretary of State for the Home Department v Muhammad Shehzad and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lady Justice King,Lady Justice Black |
| Judgment Date | 29 June 2016 |
| Neutral Citation | [2016] EWCA Civ 615 |
| Docket Number | Case No: C5/2015/2180 and 2724 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2016 |
[2016] EWCA Civ 615
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
IA/25133/2014; OA/10126/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Beatson
and
Lady Justice King
Case No: C5/2015/2180 and 2724
Lisa Giovennetti QC and Colin Thomann (instructed by Government Legal Department) for the Appellant
Ramby de Mello and Rashid Ahmed (instructed by Abbey Solicitors) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 19 May 2016
Approved Judgment
I. Overview:
The Secretary of State appeals against the decisions of the Upper Tribunal promulgated on 3 January and 18 May 2015, affirming decisions of the First-tier Tribunal. The respondents are Muhammad Shehzad and Shafiul Bashar Chowdhury. In decisions dated 21 August 2014 and 28 January 2015, the First-tier Tribunal allowed appeals by Messrs Shehzad and Chowdhury against decisions by the Secretary of State to curtail their leave to remain in the United Kingdom made pursuant to paragraph 322(1A) of the Immigration Rules and, pursuant to section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act"), to remove them from the United Kingdom. The decisions were made on the ground that Messrs Shehzad and Chowdhury had sought leave to remain in the United Kingdom by deception.
As is now well-known, after a Panorama programme on 10 February 2014 revealed that widespread fraud had been used in the Test of English for International Communication ("TOEIC"), which is required in order for a person to be credited with the necessary points under the Immigration Rules, Educational Testing Services (hereafter "ETS"), the organisation which had conducted the tests, reviewed all tests taken. I describe the fraud and the review at [11] below. The Secretary of State's decisions to curtail Messrs Shehzad and Chowdhury's leave and to remove them were made after ETS informed her officials that there was an anomaly in their tests indicating that the tests had been taken by a proxy.
It is common ground that for a decision to be made under paragraph 322(1A) there must be material justifying a conclusion that the individual under consideration has lied or submitted a false document. It is also common ground that the Secretary of State bears the initial burden of furnishing proof of deception, and that this burden is an "evidential burden". That means that, if the Secretary of State provides prima facie evidence of deception, the burden "shifts" onto the individual to provide a plausible innocent explanation, and that if the individual does so the burden "shifts back" to the Secretary of State: see Shen (paper appeals: proving dishonesty) [2014] UKUT 00236 (IAC) at [22] and [25] and Muhandiramge (section S-LTR 1.7) [2015] UKUT 675 at [10]. As to the standard of proof, the civil standard of proof applies to this question. The approach in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11 to the standard of proof required to establish that a child "is likely to suffer significant harm" under section 31(2) of the Children Act 1989 is of relevance in the present context. It was held in that case that the standard required is the balance of probabilities. Baroness Hale stated (at [70]) that "neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."
This court has considered other questions arising out of decisions to curtail leave and remove those who were considered to have used deception in their TOEIC tests. In R (Sheraz Mehmood and Shahbaz Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744, [2015] 1 WLR 461 and R (Sood) v Secretary of State for the Home Department [2015] EWCA Civ 831, [2016] Imm AR 61 it was held that there is only an out of country appeal in such cases and that judicial review is not normally available.
In these appeals, two questions arise. The first question is whether the Upper Tribunal erred in upholding the conclusions of the First-tier Tribunal that the Secretary of State had failed to discharge the evidential burden of proving deception so as to shift the burden onto Messrs Shehzad and Chowdhury. Did the tribunals err in their consideration of the evidence on behalf of the Secretary of State, including that in the statements of Peter Millington and Rebecca Collings, two civil servants in the relevant part of the Home Office? The evidence of Mr Millington and Ms Collings has been relied on by the Secretary of State in all the cases arising out of curtailment of leave as a result of a decision that deception had been used in the TOEIC tests. It is not the only evidence relied on by the Secretary of State in the cases of Messrs Shehzad and Chowdhury: see [12], [25] and [30] below.
In the appeals before us the FtT held that the Secretary of State's evidence is (Shehzad, FtT, [10]) "generalised and … [does] not specifically relate to [Mr Shehzad] or to the test he took". It is also stated (Chowdhury, FtT, [15]) that it is "in effect generic and does not show the exact reason why ETS invalidated the certificate of [Mr Chowdhury] in particular, and provides no evidence relating to [Mr Chowdhury's] personal circumstances".
In Mr Chowdhury's case, the FtT judge also stated that the Home Office evidence, primarily that of Mr Millington and Ms Collings, was that "there can be multiple reasons for invalidation, some of which may not involve fraud or deception" and that there can be "other reasons for 'invalidation' other than the use of a proxy test-taker": [16] – [17]. The FtT judge was (see [18]) satisfied that it was possible that invalidation was due to an irregularity at the particular testing centre rather than any specific evidence of dishonesty.
The second question before the court concerns only Mr Shehzad. It is whether the First-tier and Upper Tribunals had jurisdiction to hear an in-country appeal against the Secretary of State's decision, served on 6 June 2014, rejecting his application for further leave to remain on the basis that he had used deception in his TOEIC test. It is submitted by Ms Giovennetti QC and Mr Thomann on behalf of the Secretary of State that the tribunals did not have such jurisdiction because, although a decision to remove a person under section 10 of the 1999 Act is an immigration decision which carries a statutory right of appeal to the First-tier Tribunal, because it is not one of the immigration decisions to which section 92 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") applies, it is not a decision which can be appealed while a person is in the United Kingdom. There is an exception in section 92(4) of the 2002 Act. It provides that a person who "has made an asylum or a human rights claim" while he is in the United Kingdom may exercise an in-country right of appeal. The Secretary of State's case is that it is a pre-requisite to the operation of section 92(4) that the person has made such a claim to the Secretary of State before instituting his appeal and that Mr Shehzad only did so after the decision refusing his application was served on 6 June 2014 in his grounds of appeal against that decision. The court was not informed of the date on which the grounds of appeal were filed.
There were also a number of procedural issues in Mr Shehzad's case. The Secretary of State filed her appellant's notice over a month after the expiry of the 28 day period in the rules. Mr Shehzad had not filed his skeleton argument in time and did not file a Respondent's Notice. However, very shortly before the hearing, the court approved a consent order extending time for both parties.
For the reasons given at [31] – [40] below, I have concluded that the Secretary of State's appeal in the case of Mr Shehzad should be allowed on the ground that the tribunals had no jurisdiction to hear an in-country appeal in his case. It is therefore not necessary to consider whether the tribunals also erred in their approach to the evidence in his case, although (see [30] below) in my judgment, that part of the Secretary of State's case faced difficulty. In the case of Mr Chowdhury, for the reasons I give at [24] – [27] below, I consider that the tribunal erred in law in its approach to the evidence before it and that his case must be remitted to the Upper Tribunal.
II The factual background:
(i) The Panorama programme and ETS's review of the TOIC tests: Access to several language test centres run by ETS in this country was gained by reporters working for the BBC's Panorama programme. They used covert recording devices and their investigation revealed significant fraud in the taking of the tests, in particular the use of "proxies" to take the oral English tests set by ETS, which were administered remotely via computer. After the programme, ETS reviewed the validity of test scores awarded by it. Its review included an analysis of the voice recordings submitted for the spoken English component. It appeared to ETS from that analysis that, in numerous cases, the same voices appeared repeatedly on different test recordings and that that indicated that the voice was that of a "proxy" who had taken the test on behalf of many candidates. ETS's review consisted of the use of computerised voice recognition software and two independent "human reviews" by separate anti-fraud staff trained in voice recognition. Where a "match" was identified at each of the three stages, ETS concluded that a...
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