Upper Tribunal (Immigration and asylum chamber), 2018-11-01, HU/07911/2018
| Jurisdiction | UK Non-devolved |
| Date | 01 November 2018 |
| Published date | 23 November 2018 |
| Hearing Date | 09 October 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/07911/2018 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07911/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 9 October 2018 |
On 1 November 2018 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE SYMES
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
YAMUNA HIROSHIMALA MAWATTHA WIDANALAGE
(ANONYMITY ORDER NOT MADE)
Respondent
Representation:
For the Appellant: Mr I Jarvis (Senior Home Office Presenting Officer)
For the Respondent: Mr J Rene (counsel for Toltops Solicitors)
DECISION AND REASONS
-
This is the appeal of the Secretary of State against the decision of the First-tier Tribunal of 13 July 2018 allowing the appeal of Yamuna Hiroshimala Mawattha Widanalage, a citizen of Sri Lanka born 11 September 1986, itself brought against the refusal of a human rights claim of 12 March 2018.
-
The immigration history provided for the Respondent is that she was granted leave to enter as a student on 18 October 2010, that being extended until 19 October 2015; she was served with notice of removability on 15 September 2014 (which, if the chronology is accurate, would imply that her leave had by then been curtailed) and applied for leave outside the Rules on 16 October 2015. On 22 June 2016 she made the application leading to the present proceedings, based on her relationship with her Sponsor Janaka Mudiyanselage.
-
Ms Widanalage’s application for leave was refused on “general refusal” grounds on the basis that her English language test results on 19 March 2013 at New London College had been procured dishonestly, a conclusion to which the Secretary of State had come following information received from the testing body, ETS. The decision maker did not accept any exceptional circumstances were present, because she would not face unjustifiably harsh consequences in Sri Lanka: it was not accepted she would face any significant shame due to her family’s attitude towards her, and in any event such difficulties should be advanced via an asylum claim if at all.
-
The Appellant provided evidence of English language proficiency via various other certificates and achievements: an IELTS result which she believed to be 5.0 before travelling to the UK, and her studies in English: a BSC in Information Technology in 2011/2012, ACCA examinations thereafter, a Masters in Marketing and Innovation from Anglia Ruskin University.
-
The First-tier Tribunal gave a very full decision on the appeal. It noted the evidence given in SM and Qadir as to the search of New London College’s Directors’ home addresses in July 2014 which had produced the names of candidates who had engaged proxy testers, and the latter’s identity. There was no such evidence produced in the instant appeal and there was no evidence of the rates of invalidity identified at the relevant time the Appellant sat her test.
-
The Judge then went on to accept that the generic evidence put forward by the Secretary of State was sufficient to discharge the initial burden of proof to put the Appellant's credibility in issue. He then examined the rebuttal evidence of Ms Widanalage and found it wanting in a number of respects.
-
Then the Judge returned to an analysis of the Secretary of State’s evidence. It found that the weaknesses identified by the Tribunal vis-á-vis the Home Office case in the earlier authorities remained relevant here, including a lack of witness statements evidencing relevant assertions, the generic nature of those statements that were provided, the lack of evidence of any comparison of speech and speech patterns of Ms Widanalage and the alleged proxy, or indeed analysis of Ms Widanalage’s voice record, and the lack of any explanation of how it was that a proxy had been identified in this particular case. There was no evidence from an appropriately qualified acoustic engineer who had been able to analyse an appropriate sample of ETS decisions and who might foreseeably have been able to devise a suitable test to check the testing system’s probity. Absent cogent evidence such as this, it was not legitimate, satisfactory or fair to find that Ms Widanalage had engaged in fraud, even though the Judge identified some concerns with her oral evidence and noted that the qualifications that she put forwards did not clearly establish English language proficiency at the level claimed.
-
Thus the Tribunal below concluded that the Secretary of State had not established that the general refusal reason was made out. That left Ms Widanalage’s substantive ground of appeal to determine, ie the merits of her human rights claim based on her relationship with her husband, which he accepted was a genuine and subsisting one. The Judge did not accept that her parents would insist that she lived with them in the future, and so they would not be in a position to prevent her from pursuing her current relationship. Nor did he accept that they would face insurmountable obstacles to life in Sri Lanka, a country which was now generally at peace and in which they had both lived for much of their lives and where her husband could presumably find work.
-
The Judge noted the submission put to him that he should consider the case under the five-year route which did not require the identification of insurmountable obstacles, but found that this was effectively a new matter that required the Home Office’s consent to advance; and before him, consent was expressly denied. In any event, inadequate “specified evidence” was before him to make good the claimed earnings.
-
However, he did accept that there were unjustifiably harsh consequences in play, because the Appellant was party to a genuine relationship that had now exceeded four years in duration over a period during which she enjoyed valid leave. The backstop consideration in Article 8 appeals was essentially whether the refusal was disproportionate. The Tribunal concluded that the decision here was indeed disproportionate, given that it was the wrongful belief in the use of a proxy tester that had primarily motivated the decision to refuse her. Furthermore, additional time and expense would be incurred by a repeat application, and the Sponsor might well lose his job in the meantime so preventing the couple from meeting the Rules by the time an application from abroad was feasible. Thus there was no sensible reason to justify their return to Sri Lanka.
-
The Secretary of State appealed on the basis that
-
Vis-á-vis the general refusal reason based on English language fraud:
-
The First-tier Tribunal should have found on the basis of Professor French’s evidence that the ETS identification of fraud was reliable;
-
No consideration was given to issues such as the Appellant's recollection of events on the day of the test;
-
An “impermissibly high standard of proof” had been applied;
-
As to the substantive appeal, the section 117B factors had been overlooked.
-
Permission to appeal was granted by the First-tier Tribunal on 22 August 2018 on the basis that all those grounds were arguable.
-
Before me, Mr Jarvis concentrated his submissions on the overlooking of the statutory proportionality factors under section 117B of the Nationality Immigration and Asylum Act 2002, and the approach taken to the evidence of English language testing fraud. As to the latter, he argued that this was a case where the First-tier Tribunal had erred in law by failing to appreciate that, having found the Home Office had discharged the burden of proof so as to put Ms Widanalage’s credibility in issue, it was then necessary to evaluate whether the evidence provided by her rebutted the allegation of fraud. A series of well known Upper Tribunal authorities had demonstrated that the Home Office case required reasoned engagement by a migrant accused of English language test fraud following an ETS investigation. However here, in reality, the Judge had found that the very same material which had been repeatedly accepted as requiring such engagement simply did not get off the ground as a tenable deception allegation.
Findings and reasons
-
It will be helpful to the next Judge to confront this appeal to set out some of the well-trodden ground in relation to English language test fraud allegations. The President explains in Muhandiramge [2015] UKUT 675 (IAC), that decisions in General Refusal reasons cases involve a “moderately complex exercise” in which “the evidential pendulum swings three times and in three different directions”. To quote further from that decision:
“(a) First, where the Secretary of State alleges that an applicant has practised dishonesty or deception in an application for leave to remain, there is an evidential burden on the Secretary of State. This requires that sufficient evidence be adduced to raise an issue as to the existence or non-existence of a fact in issue: for example, by producing the completed application which is prima facie deceitful in some material fashion.
(b) The spotlight thereby switches to the applicant. If he discharges the burden - again, an evidential one - of raising an...
To continue reading
Request your trial