Upper Tribunal (Immigration and asylum chamber), 2020-10-13, JR/00818/2016

IAC-FH-CK-V2

IN THE UPPER TRIBUNAL

HEARING

via Skype for Business

JR/818/2016

Field House,

Breams Buildings

London

EC4A IWR

2 September 2020

THE QUEEN

(ON THE APPLICATION OF ARIF MIR)

Applicant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

BEFORE

UPPER TRIBUNAL JUDGE ALLEN

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Mr Z Malik and Mr A Rehman, instructed by Lawfare Solicitors appeared on behalf of the Applicant.

Ms N Barnes, instructed by the Government Legal Department appeared on behalf of the Respondent.

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ON AN APPLICATION FOR JUDICIAL REVIEW

JUDGEMENT

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JUDGE ALLEN: The applicant has applied for a judicial review of the decision of the Secretary of State of 28 October 2015 revoking his indefinite leave to remain in the United Kingdom on the basis that it was obtained by deception.

2. The brief history of the applicant is that he came to the United Kingdom on 2 January 2010 with leave as a Tier 4 Student valid until 29 November 2011. He needed an English language certificate and he took a test at Alpha College on 19 October 2011. This was unsuccessful and he took a further test on 15 November 2011 at Richmond School of Management Studies. This was successful, and as a consequence he applied for an extension of leave to remain as a Tier 4 (General) Student on 24 November 2011. On 9 January 2012, the earlier application having been rejected as mandatory sections of the application form had not all been completed, he applied for an extension of leave to remain as a Tier 4 (General) Student, submitting the TOEIC certificate from Richmond School of Management Studies of 15 November 2011. On 2 February 2012 he was granted leave to remain as a Tier 4 Student until 30 September 2013. On 5 April 2012 he applied for leave to remain as the spouse of a settled person, again submitting the TOEIC certificate. On 18 September 2012 he was granted leave to remain as the spouse of a settled person, until 18 September 2014. He was subsequently successful with an application for indefinite leave to remain as the spouse of a settled person, made on 23 August 2014. He applied for British nationality as the spouse of a British citizen, on 15 April 2015. Thereafter the decision under challenge was made on 28 October 2015. He was issued on that same date with a Statement of Additional Grounds form. He made further submissions in respect of the decision on Article 8, on 4 November 2015, and the respondent reconsidered her decision on 24 November 2015, maintaining the decision to revoke the applicant's leave and advising him to make an application for leave to remain on human rights grounds.

3. The applicant filed an application for judicial review challenging the revocation decision, on 25 January 2016. Permission to appeal was refused on 22 March 2016 and the claim was certified as being totally without merit. The Tribunal refused permission to appeal to the Court of Appeal and the appeal was subsequently stayed pending the court's decision in Hossain & Islam. Thereafter on 23 December 2019 the Court of Appeal allowed the applicant's appeal by consent and remitted the case to the Upper Tribunal.

The Law

2. There is no disagreement between the parties as to the relevant legal principles in this case.

3. It is clear from section 76(2) of the Nationality, Immigration and Asylum Act 2002 that:

“The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if —

1. the leave was obtained by deception.

…”

2. In Abbas v Secretary of State for the Home Department [2017] EWHC 78, it was held that in a judicial review challenge to a decision of the Secretary of State to revoke leave under section 76(2)(a) the question whether deception was used by the applicant is a precedent fact for the court itself to determine, because the very existence of the Secretary of State's power as exercised in such a case depends on deception having been used.

3. The legal burden of proving that the applicant used deception lies on the Secretary of State. There is a three stage process, namely that first, the Secretary of State must adduce sufficient evidence to raise the issue of fraud in relation to the TOE IC certificate; secondly, the appellant has a burden of raising an innocent explanation which satisfies the minimum level of plausibility; and if that burden is discharged, the Secretary of State must establish on the balance of probabilities that this explanation is to be rejected.

4. It is relevant to note that there is one civil standard of proof, the standard applicable for the present case. The seriousness of the consequences of an allegation does not require a different standard of proof, but flexibility in its application will involve consideration of the strength and quality of the evidence. The more serious the consequence, the stronger must be the evidence adduced for the necessary standard to be reached (see Abbas at paragraph 7, to be read in the light of Re B (Children) [2009] 1 AC 11). In Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615 it was said that in order to meet the first stage the Secretary of State must adduce the generic evidence which should be accompanied by evidence showing that the individual under consideration's test was categorised as invalid. It is then for the applicant to put forward his explanation if the first stage has been met, and as in this case the Tribunal may be invited to accept that his explanation satisfies the minimum level of plausibility.

5. As regards the third stage, it was held by the Upper Tribunal in MA [2016] UKUT 450 (IAC), that the question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact—sensitive. The Court of Appeal in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 endorsed this view and added that even in a case "where the impugned test was taken at an established fraud factory" and even "where the voice file does not record the applicant's voice (or no attempt has been made to obtain it)", the decision as to whether a person has cheated in the TOEIC test will be fact—specific.

Evidence

2. At paragraph 18 the Court of Appeal in Majumder and Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167 approved what had been said by the Upper Tribunal in those cases that when considering an allegation of dishonesty the relevant factors included the following: what the person accused had to gain from being dishonest; what he had to lose; what is known about his character; the cultural environment in which he operated; how the individual accused of dishonesty performed under cross-examination, and whether the Tribunal's assessment of that person's English language proficiency is commensurate with his or her TOEIC scores and whether his or her academic achievements are such that it was unnecessary or illogical for them to have cheated.

3. The applicant gave oral evidence, confirming that the contents of his statement of 14 July were true and he adopted it as his evidence today. He was referred to his wife's statement and said that she was at work today, working as a carer and she was not able to attend the hearing as they were very strict and short of staff as a consequence of the pandemic and she was unable to take a day off.

4. On cross-examination he was asked why prior to the statement he had not set out previously his explanation of the test and his claim to have sat it. He said that in 2015 he was with different solicitors and the Rules on judicial review were different then and they had never asked him for a witness statement and the case was in the Court of Appeal behind other cases and he had never been asked for it before. It was put to him that he could have asked his representatives at any time over the five years and he said it was just because the case was pending and that was the only reason and there had been little correspondence for two or three years and it was pending for three years. It was put to him that representations had been made on a number of occasions initially after the refusal even though the case had been pending for a while and he said that the previous representatives had never really asked him to make a statement.

5. He agreed that the initial period of leave elapsed on 29 November 2011 and therefore he had to submit a further leave application before that leave expired. The application he had put in was for a level 5 course in hotel management and as part of the application he had to submit an English language test certificate. He thought he had needed a score of 150 to 160. He had taken that test at Alpha College at the end of October, 19 October 2011. That college was in Edgware. He was asked how he had got there and he said to the best of his recollection he had taken the train from his home in Folkestone to St Pancras and then went to Edgware. He had paid around £150. He said he had gone to do that test without preparation as he was full of confidence and also there had been background noise....