Upper Tribunal (Immigration and asylum chamber), 2019-10-11, JR/03527/2017

JurisdictionUK Non-devolved
Date11 October 2019
Published date16 October 2019
Hearing Date23 September 2019
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberJR/03527/2017

Upper Tribunal

Immigration and Asylum Chamber

JR/03527/2017



Field House,

Breams Buildings

London

EC4A 1WR


Heard on: 23rd September 2019



Before



UPPER TRIBUNAL JUDGE KEITH


Between



The Queen (on the application of Mohammad Alamin)


Applicant

v


Secretary of State for the Home Department

Respondent



R Jesurum, Counsel, instructed by Zahra Solicitors, appeared on behalf of the Applicant

E Wilsdon, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.

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APPLICATION FOR JUDICIAL REVIEW

JUDGMENT


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The application


  1. The applicant applied on 18 April 2017 for judicial review of the respondent’s decision of 18 February 2017, following an administrative review process, to maintain her earlier decision on 17 January 2017 (the ‘Decision’). The Decision is the substantive decision under challenge, rather than the later decision in February 2017.


  1. In the Decision, the respondent refused the applicant’s application for an extension of leave to remain in the United Kingdom (the ‘UK’) under the ‘points based system’ of Tier 2 of the Immigration Rules.


The basis of the Decision


  1. The gist of the respondent’s refusal was that she believed that the applicant had participated in obtaining an English language certificate or ‘TOEIC,’ by way of deception, specifically by the use of a proxy test taker, at tests undertaken on 18 October 2011. He had then used the TOEIC to apply on 28 November 2011 for leave to remain, which was granted.


  1. The respondent had partly based her conclusions on analysis carried out by a third-party provider, Educational Testing Service, or ‘ETS.’ ETS provided an analysis both of the test centre at which the applicant took the test, Elizabeth College, at which wide-spread cheating had taken place; and also a test analysis or ‘look up’ result for the applicant specifically, indicating that the applicant’s test was ‘invalid’ (as opposed to ‘questionable’). In addition, the respondent referred to an interview with the applicant on 17 August 2015, to which the applicant had been invited by a letter of 20 July 2015. The letter of invitation had referred to the respondent considering curtailment of the applicant’s leave to remain in the UK. At that interview, the applicant was asked about various aspects of the circumstances of his taking the English language test in 2011. The interviewer concluded that the applicant’s 2011 TOEIC scores were not reflected in the applicant’s poor level of spoken English during the 2015 interview; and during which he had referred to previously failing an English language test, having only entered the UK in October 2010, barely a year before taking the second English language test.


  1. As a result of the respondent’s conclusions, she gave the applicant no points under appendices A and B of the points based system, pursuant to paragraph 245 HD(f) of the Immigration Rules.


  1. The applicant requested an administrative review of the Decision on 27 January 2017, putting the respondent to proof of the claim of deception and also referring to having obtained a Level 6 diploma in business management on 5 September 2011, shortly before taking the second TOEIC test. The applicant asserted that the interview in August 2015 was ‘not worthy of weight’ because if the respondent had had concerns based on the interview, she should have immediately curtailed the respondent’s leave in 2015, rather than waiting to refuse the applicant’s subsequent 2016 application. The applicant asserted that the 2015 interview had been brief; and at the end of it, he had been told that everything was well.


  1. In her administrative review decision of 18 February 2017, the respondent reiterated the ‘look up’ evidence; the level of cheating at Elizabeth College, where the test had been taken; and the points raised by the applicant in his administrative review request, particularly his having obtained a diploma, but nevertheless concluded that the evidence was sufficient that the applicant had engaged in deception.


Previous orders and decisions


  1. The applicant’s solicitors wrote to the respondent with a pre-action letter on 27 March 2017, to which the respondent responded on 31 March 2017. Following the applicant’s application for judicial review on 18 April 2017, Upper Tribunal Judge Macleman initially refused to admit the application on the basis that it was out of time. Whilst the use of administrative review was to be encouraged, he concluded that reference to it as the decision under challenge was not to be used to ‘dress up’ a delay, when the substantive decision under challenge was the Decision. In any event, Judge Macleman considered the grounds did not have arguable merit.


  1. However, at an oral hearing seeking permission before Upper Tribunal Judge Jackson on 2 February 2018, she granted permission, regarding it as arguable that the respondent had failed to discharge the evidential burden of establishing that the applicant had used deception. The other grounds that the respondent had failed to place appropriate weight on evidence in the applicant’s favour (the Level 6 diploma) or that there had been a procedural irregularity in reaching the Decision, appeared to be weaker, but Judge Jackson did not limit the scope of the grant of permission to proceed.


  1. The proceedings were subsequently stayed pending the outcome of appeals in the Court of Appeal in the linked cases of R (Hossain) v SSHD (C6/2016/3560) and R (Islam) v SSHD (C8/2017/1385). The stay was lifted following case management directions issued by Upper Tribunal Judge O’Connor, and the respondent was permitted to file detailed grounds of defence.


Grounds of challenge

  1. Ground (1) was that in reaching her Decision, the respondent failed to consider material, which was in the applicant’s favour, specifically the fact that the applicant had entered the UK as a Tier 4 student. In September 2011, he had obtained a Level 6 diploma in business management, only a month before he had allegedly used a proxy to take the TOEIC test. His proficiency in English was a relevant factor to consider, in accordance with the authority of Majumder & Qadir v SSHD [2016] EWCA Civ 1167, at [18].


  1. Ground (2) was that there was procedural unfairness in the process by which the respondent reached the Decision, and after it. The respondent had given the applicant no opportunity to comment on, or respond with evidence to, the allegation of deception. The respondent had not disclosed that she was minded to refuse the applicant’s 2016 application on such grounds and the applicant had every reason to consider that concerns about curtailment had been resolved following the August 2015 interview. As per the authority of R (on the application of Mohibullah) v SSHD [2016] UKUT 561 (IAC), the respondent was under an obligation to convey the gist of the serious allegation before any final decision was taken. The ETS ‘look up information’ and the interview record of August 2015 had not been disclosed to the applicant before reaching the Decision. Instead, the respondent suggested that the applicant could make a data subject access request for disclosure of information, in breach of the duty of candour – R (on the application of Saha) v SSHD [2017] UKUT 17 (IAC).


  1. Ground (3) was that the decision was ‘Wednesbury’ unreasonable, as the respondent could not rationally rely solely on the ‘look up’ result in reaching the conclusion that the applicant had engaged in deception, given the weakness of the respondent’s evidence, as highlighted by Dr Harrison in Majumder & Qadir.


The basis of the respondent’s resistance to the orders sought


  1. The respondent filed detailed grounds of defence on 30 August 2019, the summary of which is set out below.


Grounds (1) and (3)


  1. The respondent regarded these grounds as essentially two aspects of the same challenge, namely that factors that should have been taken into account were not; so that the Decision was ‘Wednesbury’ unreasonable. In response, the respondent referred, at [31], to the generic and the specific evidence relating to the applicant, including witness statements of Rebecca Collings and Peter Millington; an expert report of Professor Peter French; a criminal report for Project Façade into Elizabeth College, London dated 15 May 2015; the respondent’s letter dated 28 July 2015 inviting the applicant to an interview; the notes of that interview; and the ‘look up’ results. In that context, the respondent had discharged the initial evidential burden of proving deception in an ETS case, in line with the case of SSHD v Shehzad & Anor [2016] EWCA Civ 615 and also the Majumder case already referred to.

  1. The respondent had considered not only the ‘look up’ tool but the 2015 interview and was entitled to do so. The applicant knew of the contents of that interview because he was present at it, so the fact that he was only provided the notes after the Decision, particularly where he did not dispute the accuracy of those notes, was not relevant. His case could be distinguished from marriage interview cases, where an applicant might not be aware what a spouse had said during interview.


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