Upper Tribunal (Immigration and asylum chamber), 2021-08-24, HU/08393/2018 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 24 August 2021 |
| Published date | 08 September 2021 |
| Hearing Date | 20 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/08393/2018 & Ors. |
Appeal Numbers: HU/08393/2018;
HU/08400/2018;
& HU/08397/2018
IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/08393/2018;
HU/08400/2018;
& HU/08397/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20th July 2021 |
On 24th August 2021 |
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Before
UPPER TRIBUNAL JUDGE KEITH
Between
‘RBS’ (1)
and
‘IN’ (2)
and
‘IS’ (3)
(ANONYMITY DIRECTION CONTINUED)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. Failure to comply with this direction could lead to contempt of court proceedings.
Representation:
For the Appellant: Mr M Nadeem, Counsel, instructed by Piper May Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION AND REASONS
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These are the approved record of the decision and reasons which I gave orally at the end of the hearing on 20th July 2021.
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This is the remaking of the decision in the appellants’ appeals against the respondent’s refusal of their human rights claims. The background to these appeals is set out my decision promulgated on 6th January 2021, annexed to these reasons, in which I found that a First-tier Tribunal had erred in law. I do not repeat that background. Suffice it to say, I preserved no findings of fact. The issues for the two adult appellants (a married couple) and their infant son, all Nepalese citizens, are:
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on the TOIEC issue, with the appellants accepting that the respondent has demonstrated a prima facie case, first, whether the appellants have provided an innocent explanation meeting the minimum level of plausibility (see SM and Qadir v SSHD (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) and SSHD v Shezad and Chowdhury [2016] EWCA Civ 615?
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Second, in respect of the TOEIC issue, should I reject any innocent explanation by the appellants, having been satisfied that the respondent has proven the alleged deception?
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Third, whether, on wider article 8 ECHR grounds outside the Immigration Rules, the appeal should be allowed?
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Documents
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In terms of documentation, I discussed with the representatives at the beginning of the hearing whether I should be referring to any additional documents that had not been before the First-tier Tribunal. The representatives confirmed that I did not and instead, all I needed to refer to were three sets of documents: the first, entitled a “list of essential reading,” which ran to some 126 pages including the witness statements of the first and second appellants; a second supplementary bundle, which included a statement of Professor French and a report of a criminal investigation by Detective Inspector Carter in relation to the test centre at Westlink College where the appellant asserts she took the TOEIC test; and third, a comparison document entitled “IELTS in CEFR scale,” which compared the IELTS qualification, which the appellant passed to get her student visa in 2008, with the impugned TOEIC test she took in 2012.
The appellants’ witness evidence
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I heard oral evidence given by the first and second appellants, who adopted their witness statements. Those statements were a number of years old, dating back to 2018 and had been produced to the First-tier Tribunal, with limited evidence in respect of the third appellant; the current circumstances in Nepal; and the circumstances in which the second appellant took the TOEIC test. Nevertheless, it is important to note that the second appellant was adamant, both in her witness statement and in oral witness evidence, that she had taken the TOEIC test in question and there was no motivation or reason for her to have used a proxy to take the test.
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She was cross-examined by Mr Tufan and confirmed that in April 2012, when she had taken the TOEIC test, she had lived in Rayners Lane in Middlesex near Harrow, whereas the test centre in question was in Harlow. She candidly accepted that it was some distance apart but she also explained that her visa was due to expire and she needed to obtain a valid English language certificate by July/August of 2012. When she approached a test centre offering her first preference, an IELTS qualification, nearer to her college, the London College of Management Studies, that test centre was fully booked, so she then sought further advice from her college, who recommended that instead she take the TOEIC qualification. That was some distance away but did enable her to take her qualification promptly and she did not wish to leave matters until the last minute. In terms of the remainder of her oral evidence, she said that she did not notice anything untoward when she took her test and indeed, after taking the test, she went on to carry out successfully additional studies to which I was referred at pages [70] to [80] of the first bundle.
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The second appellant candidly confirmed that in terms of her son, the third appellant, whilst he was now four years old, at nursery and about to start reception class in the UK, there had been no health difficulties and he had progressed well in nursery.
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However, the second appellant emphasised the period of time that she had spent in the UK and also the difficulties of returning to Nepal, where there were no jobs. She also accepted that she had not carried out any job searches recently but even with her qualification to MBA level, she had not worked for a number of years. She and her husband were only able to survive by living in a property belonging to her brother, who also owned a business in the UK and paid for the family’s full needs.
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The first appellant also gave evidence, in respect of which there was limited cross-examination. He explained that he had never overstayed, including a period when he in fact left the UK to re-enter, in order to ensure that he did not overstay. He re-iterated that whilst he had also attempted to study at a college, his college had had its licence revoked and he, for reasons set out in his witness statement, had been unable to access an alternative sponsoring college. The couple had spent thousands of pounds over the years attempting to regularise their position and, in his words, his life had been ruined in the circumstances. He too was adamant that his wife had not cheated in relation to her studies and at the time of the TOEIC test she had been on a Tier 2 (General) visa, which was a route to settlement.
The respondent’s closing submissions
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Mr Tufan relied on the respondent’s refusal letter. He also referred me to the well-known authority of MA (ETS - TOEIC testing) Nigeria [2016] and in particular §57, where it was recognised that there might be a number of motives for why somebody would cheat. That might be the case even where their English was, as potentially here, perfectly satisfactory. Those reasons might include a lack of confidence, fear of failure, lack of time and commitment and contempt for the immigration system. Those reasons could potentially overlap.
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Moreover, I should also give weight to the “look-up tool” and in particular, the criminal investigation into the Westlink College and the section of Detective Inspector Carter’s report in May 2015, which included an unannounced visit on 15th May 2012, only a matter of weeks after the second appellant took her test on 18th April 2012. At the unannounced visit, those taking the tests had apparently fled and upon discovery it appeared that there had been proxy tests taken. Of the tests taken at that centre, two thirds were invalid and the remainder were questionable and no tests at had been released as “valid”. Whilst Mr Tufan addressed the best interests of the third appellant, a minor, nevertheless, the best interests of that child were to return as a family unit with his parents to Nepal. There was little evidence of any obstacles to integration in Nepal. The couple were more educated than most and they had financial resources in order to ensure their integration into Nepal. Any challenges, as sometimes was the case in relation to the efficacy of the finding in relation to deception and the validity of the result had been dealt with by Professor French at page [14] of his report and in particular, the limited number of false positives that arose in the ETS investigation.
Closing submissions on behalf of the appellants
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Mr Nadeem reiterated that the second appellant had successfully passed an IELTS test in May 2008, a number of years before the 2012 test. Looking at the specific IELTS results at page [79] of the first bundle, it appeared that her proficiency between 2008 and 2012 had improved, which was entirely consistent with her having reasonable English on entry to the UK and then, four years later, her English improving as she lived and studied in the UK. It was also entirely plausible that she would have genuinely taken the test in circumstances where...
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