Upper Tribunal (Immigration and asylum chamber), 2024-03-12, UI-2024-000046 & Ors.
| Appeal Number | UI-2024-000046 & Ors. |
| Hearing Date | 22 February 2024 |
| Date | 12 March 2024 |
| Published date | 27 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2024-000046
UI-2024-000047
UI-2024-000048
First-tier Tribunal Numbers: HU/01061/2023
HU/01062/2023
HU/01063/2023
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2024-000046 UI-2024-000047 UI-2024-000048 |
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First-tier Tribunal Nos: HU/01061/2023 HU/01062/2023 HU/01063/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 12th of March 2024
Before
DEPUTY UPPER TRIBUNAL JUDGE SAINI
Between
MRS SOYSA WARUSHAHANNADIGE ARUNAKANTHI ANOMA
MR DAMBURE VITHANCHCHI KUMARASIRI
MISS SANUSHI THAMASHA DAMBURE VITHANCHCHI
(NO ANONYMITY ORDER MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr P Lewis, Counsel; instructed by Direct Access
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
Heard at Field House on 22nd February 2024
DECISION AND REASONS
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The Appellant appeals against the decision of First-tier Tribunal Judge Haria, promulgated on 13th November 2023 dismissing the Appellant’s human rights appeal.
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The Appellants applied for permission to appeal on three grounds and were granted permission to appeal by First-tier Tribunal Judge Boyes in the following terms:
“1. The application is in time.
2. The grounds assert that the Judge erred in numerous respects. Grounds 1 and 2 effectively argue the same issue and ground 3 raises an issue of fairness in that the documents the appellants wished to rely upon were not properly before the court through no fault of the appellants.
3. Grounds 1 and 2 are arguable. The Judge was obliged in this instance to consider relevant matters in the 8(2) balancing exercise and it is arguable that the failure to notionally put the appellants back into the same position they were arises out of a misunderstanding on the part of the Judge and as such an error. For the reasons which are well explained and justified in the grounds in respect of 1 and 2, permission is granted.
4. With respect to ground 3, permission is granted. The Judge can clarify which documents where explicitly before her in due course but it is arguable that the totality of the information the appellants wished to rely on may not have been before the Judge. That is arguably an error.
5. Permission is granted”.
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Before me, Mr Clarke confirmed that the appeal was contested and that there was no Rule 24 response from the Respondent.
Findings
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At the conclusion of the hearing I reserved my decision which I now give. I find that the decision demonstrates material errors of law, such that it should be set aside in its entirety.
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In respect of Grounds 1 and 2 which I take in reverse order, the grounds argue that the judge has failed to take into account a relevant consideration and misdirected herself in law in respect of the historical injustice that the Appellant has suffered arising from the incorrect allegation of having cheated in her ETS TOEIC English test in respect of which the Appellant was found to be innocent by First-tier Tribunal Judge O’Garro in her decision promulgated on 23rd August 2016. At the outset it would help to specifically set out certain passages from Judge O’Garro’s decision:
Background
4. On 5 April 2011 the first appellant was granted leave to enter the United Kingdom as a student until 20 August 2012.
5. On 25 April 2011 and 26 March 2011 the first, second and third appellants were respectively granted leave to enter the United Kingdom as Tier 4 General dependants of the first appellant.
6. On 31 October 2012 the first appellant was granted further leave to remain as a Tier 4 General student until 20 February 2014. The second and third appellants leave to remain was granted in line with the first appellant’s leave.
7. On 17 February 2014 the appellants made in time applications for further leave. Their applications were refused as the first appellant was considered a person who had previously obtained leave to remain in the United Kingdom by deception. This was due to information provided to the respondent by Educational Testing Service (ETS) that there was an anomaly with the first appellant’s speaking tests score taken on 17 July 2012. It indicated the presence of a proxy test taker. The respondent concluded that the appellants’ applications made on 31 October 2012 were obtained by deception.
8. The appellants appealed that decision. The first appellant denied deception. She said that she is very proficient in English. She said that prior to coming to study in the United Kingdom she had worked in Sri Lanka as an hotelier at an International hotel which required her to carry out her duties in English and she has been doing her studies in the United Kingdom at degree level and above which required her to be proficient in English language. She said that the respondent has not provided the evidence to support the allegation of deception.
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Consideration and Findings
17. In reaching my decision, I apply the civil standard of proof, that of a balance of probabilities. I take fully into consideration all the documents contained in the file and submissions received.
18. The respondent refused the appellants’ applications for leave to remain as a Tier 4 (General) student and tier 4 (General) student dependants, because she believed that the first appellant had used deception in a previous application.
19. Although the respondent has raised the issue of deception by the first appellant and has used this as a reason for refusing the appellants’ leave to remain in the United Kingdom, I find that save for making the allegation, the respondent has provided no evidence to the required standard to support her allegation.
20. I reminded myself of what the Tribunal said in the case of RP (proof of forgery) 2006 UKIAT 86. In that case a Tribunal Panel said that where there was an allegation of forgery, the onus is on the ECO to prove the allegation and he must adduce strong evidence in order to discharge that burden.
21. I also have paid regard to the relevant case of R on the application of Gazi v SSHD (ETS-Judicial Review) 20150 UKUT and what the Tribunal said therein about the use of generic evidence to prove deception in ETS cases.
22. I noted in that case, the Tribunal said that the ETS testing often yielded false positive results. I take into account the fact that the burden of proof is on the respondent to provide specific and individual evidence in relation to the first appellant to support the allegation that she used deception by relying on the ETS documents she submitted with her previous application.
23. I have also paid regard to the more recent case of SM and Qadir v Secretary of State for the Home Department (ETS-Evidence-burden of Proof) 2016 UKUT 00229, and the further criticism made in that case of the respondent’s reliance on generic evidence.
24. I take account of the fact that the first appellant entered the United Kingdom as a student in 2011 and would have had to produce evidence of satisfactory competence in English Language to undertake her studies. I also take took into account that up until the refusal of her visa, the first appellant had been studying at degree level doing a Masters in Business Administration which she said she completed in December 2014. She now has offers from several reputable Universities to complete a PHD in Hospitality Management. The first appellant said that these are level 8 courses and she will be studying in English and that these Universities would only offer her a place to do a PHD, if they were satisfied that her level of English was of a good standard.
25. I am aware that the case of AA (Nigeria) 2010 EWCA decided that references to ‘false’ representations and documents in paragraph 322(1A) required an element of dishonesty. The court said that an element of deception is required, that is, the appellant or someone acting on his/her behalf must have an intention to deceive in order for the paragraphs to be invoked.
26. I find that the respondent has not provided the evidence she is required to provide to discharge the burden of prove to the standard required in order to satisfy me that the first appellant had used deception in a previous application. I find that the respondent has made not out the case against the appellant and Paragraph 322(1A) is not invoked.
27. As I find that the respondent has not proven to the required standard that the first appellant had used deception when she made her previous application for leave, then it seems to me that it must follow that the respondent’s decision which is based on this allegation of deception, is not in accordance with the law.
28. Based on my findings, fairness now requires the respondent to grant a period of discretionary leave of no less than 60 days, to enable the first appellant to submit a fresh Confirmation of Acceptance for Study (CAS) to enable her to complete her studies.
As can be seen from the above excerpts, the Appellant held valid leave to remain as a Tier 4 (General) Student along with her dependants on her PBS status, and applied in time for leave to remain as a student on 17th February 2014 prior to expiry of her student leave...
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