Upper Tribunal (Immigration and asylum chamber), 2018-05-22, IA/34946/2015
| Jurisdiction | UK Non-devolved |
| Date | 22 May 2018 |
| Published date | 13 June 2018 |
| Hearing Date | 14 May 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/34946/2015 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34946/2015
THE IMMIGRATION ACTS
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Heard at Birmingham |
Decision & Reasons Promulgated |
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On 14th May 2018 |
On 22nd May 2018 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
Md Ziaul Karrim
(Anonymity direction not made)
Respondent
Representation:
For the Appellant: Ms Aboni, Senior Presenting Officer
For the Respondent: Mr Yusuf, Solicitor from Kingswood Solicitors
DECISION AND REASONS
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The Secretary of State appeals with permission, against the decision of the First-tier Tribunal (Judge Birk) who, in a determination promulgated on the 20th March 2017 allowed his appeal against the decision of the Respondent to refuse to vary leave to remain.
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Whilst the Secretary of State is the Appellant, for the sake of convenience I intend to refer to the parties as they were before the First-tier Tribunal.
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No anonymity direction was made by the First Tier-Tribunal and no application has been made on behalf of the Appellant or any grounds put forward to support such an application.
The background:
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The Appellant, a citizen of Bangladesh, entered the United Kingdom on the 1st January 2010 on a Tier 4 student visa valid until the 30th April 2013.
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His leave to remain as a Tier 4 student was extended until the 20th June 2013.
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On the 5th July 2012 he submitted an application for leave to remain as a spouse of a person present and settled in the UK and he was granted leave on that basis from the 13th February 2013 – 13th February 2015 was granted on the 9th November 2013 ( 2 years leave).
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On the 9th February 2015 he applied for leave to remain as a spouse of a person present and settled. That application was refused on the 17th November 2015.
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The Respondent refused the application under paragraphs 322(2) and paragraph 289 with reference to 287(a) (vii) of the Immigration Rules on the basis that the Appellant had, in an earlier application for leave to remain on the 5th July 2012, submitted an English language test certificate from ETS which was false. The Respondent referred to the Appellant's test scores having been cancelled by ETS. As he had provided a certificate that was fraudulently obtained, the Respondent refused the application under Paragraph 322(2).
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The Appellant appealed that decision on the 27th November 2015.
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On the 8th March 2017 his appeal was heard by the First-tier Tribunal (Judge Birk). In a determination promulgated on the 20th March 2017 the judge allowed his appeal. In that determination he set out the Respondent’s case at paragraphs 4 and 5 and the Appellant’s case at paragraphs 6-9.
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The judge’s findings of fact are set out at paragraph 13-17. At paragraph 14 the judge considered the evidence provided by the Secretary of State and made reference to generic evidence which included a statement from Mary Morgan. He also made reference to the witness statements from Peter Millington and Rebecca Collings and that the test results which had been provided which stated were “questionable”. The project façade report although in the index was not in the bundle before the FTTJ( and is not in the bundle in the Tribunal file). The bundle did have an extract form the test centre where 20% were questionable” and 80% invalid and this Appellant’s test score by reference to his certificate no ending in 1260. The judge found the generic evidence was of sufficient evidential quality to discharge the burden of proof.
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At paragraph 15 the judge made the following findings of fact:
“15. The Appellant has provided an account of his background in terms of his education and sitting English tests and the tests he sat on 6 November 2011. He was cross-examined about his evidence. I found that he was a credible and plausible witness because he was able to describe what happened on the test dates in some detail and I find that he has demonstrated that he has done a number of other English tests which show that he had acquired a certain level of English ability prior to doing the ELTS. He obtained an English speaking and listening certificate from Trinity College dated June 2011 and was enrolled onto a HND course in business studies and which he was able to study on.
16. I do not find that the Respondent has discharged the legal burden of establishing that the Appellant’s test was taken by a proxy test taker on his behalf. I do not find that the Appellant used deception to obtain his previous leave and I therefore find it was not lawful to be refused under paragraph 322 (1A).
17. I find that the Appellant therefore does not to be rejected under the general grounds of refusal under paragraph 287 either. I find that the Appellant does not fall for limited leave to remain as a partner with regards to being a person whose presence is not conducive to the public good. The decision to refuse therefore is not in accordance with the law and I allow the appeal. As he meets the Immigration Rules there is no need to consider the appeal on the alternative grounds of paragraph 276 ADE or Article 8 outside the Immigration Rules.”
The appeal:
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The Secretary of State sought permission to appeal that decision. The grounds stated as follows:
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In reaching the material finding, the judge relied on the Appellant’s English ability [15].
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Plainly there may be reasons why a person who is able to speak English to the required level would nonetheless cause or permit a proxy candidate to undertake an ETS test on their behalf, or otherwise to cheat.
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The FTT has materially erred by failing to give adequate reasons for holding that a person who clearly speaks English with therefore have no reason to secure a test certificate by deception.
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The judgement of MA Nigeria [2016] UKUT 450 records at [57], “second, we acknowledge the suggestion that the Appellant had no reason to engage in deception which we have found proven. However this has not deflected any way from reaching our main findings and conclusions. In the abstract, of course, there is a range of reasons why persons proficient in English may engage in TOEIC fraud. These include, in exhaustively, lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system. These reasons could conceivably overlap in individual cases and there is scope for other explanations the deceitful conduct in the sphere. We are not required to make a further finding of why the Appellant engaged in deception and do this we add that this issue was not explored during the hearing. We resist any temptation to speculate about this discrete matter.”
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It is submitted that the Secretary of State’s evidential burden was met and that the evidential burden fell upon the Appellant to offer an innocent explanation. The judge failed to give adequate reasons are finding that the Appellant provided an innocent explanation.
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It is submitted that whilst the ETS verification system is not infallible, it is adequately robust and rigorous. In any event, the Secretary of State must rely on such information provided to by an applicant which has been certified as being true by third party. The third party withdraws the certificate, as here, and is no longer able to batch the validity of information, on the basis of leave is also removed.
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The Respondent maintained that there were no compelling circumstances to justify the consideration of the Appellant’s case outside the immigration rules.
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In any event there was nothing to prevent the Appellant returning to Bangladesh with the sponsor to continue their family of life there.
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On the 12th July 2017 First-tier Tribunal Judge E.M Simpson granted permission for the following reasons:
“ (i) there appeared as asserted that where having considered para 322(1A) of the immigration rules, with reference to a TOEIC certificate declared invalid by ETS, and concluding that the Respondent discharged the initial evidential burden, that in a paragraph appearing altogether brief and absent of a critical evaluation of the Appellant’s evidence, that there appeared an inadequacy of reasoning in the decision, when concluding that the Appellant provided a plausible innocent explanation and the burden of proof not been discharged, and that the Respondent failed to show deception are being used, and a refusal under 322(1A) had thus been lawful;
(ii) though poorly articulated there appeared that upon the judge concluding that there had not been shown that the general grounds for refusal under 322(1A) applied and therefore 287(vii) also, in the absence of any indications on the part of the Respondent of concessions, that the judge allowing the appeal, at this juncture, without having regard to matters remaining under contention, with reference to Appendix FM, more particularly under R-LTRP1.1 and paragraph EX1, and paragraph 276 ADE that arguably the judge fell into error;
(iii) there was...
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