United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/28160/2015

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision and Reasons Promulgated
On 27 November 2017	On 29 November 2017

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

(Anonymity Direction Not Made)

 

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

MOHAMMAD ANAYET HUSSEN

Respondent

 

 

Representation:

For the appellant: Mr P. Duffy, Senior Home Office Presenting Officer

For the respondent: Mr T. Chowdhury of Kingdom Solicitors

 

 

DECISION AND REASONS

 

1. For the sake of continuity, I refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.

2. The appellant appealed the respondent's decision to refuse a human rights claim in the context of an application for leave to remain as the partner of a British citizen. The respondent refused the application on grounds of 'Suitability' because it was said that he obtained an English language certificate in support of an earlier application using fraud. The respondent stated: "following routine investigation checks it has been found that the TOEIC certificate used for the consideration of your previous two Tier 4 applications have been found as Invalid. Therefore, this document has been shown to be fraudulent and, despite this being the case, was used to obtain previous leave."

 

3. The respondent produced a print out of the 'Look-up Tool' confirming the information received from Educational Testing Services (ETS). ETS cancelled the English language test taken at Synergy Business College on 20 March 2012 as 'Invalid'. The respondent also produced a report from Project Façade (a criminal inquiry into TOEIC fraud) relating to Synergy Business College. The report stated that between 24 November 2011 and 15 January 2013 Synergy Business College undertook 4,894 TOEIC speaking and writing tests of which ETS identified 2,410 as 'Invalid' and 2,484 as 'Questionable'. The figures showed that 49% of tests were deemed 'Invalid', but the rest of the tests taken during that period were deemed to be 'Questionable' due to 'administrative irregularities'. In other words, none of the tests taken during that period were found to valid. The respondent also produced a print out of information relating to tests taken at Synergy Business College on 20 March 2012 (the date the appellant took the test). The print out indicated that 134 tests were taken that day of which 47 (35%) were deemed 'Questionable' and 87 (65%) were deemed 'Invalid'. In other words, none of the tests taken that day were found to be valid and a high proportion were found to indicate evidence of fraud. The respondent produced the generic statements of Peter Millington and Rebecca Collings, which were analysed in some detail by the Upper Tribunal in SM & Qadir (ETS - evidence - burden of proof) [2016] UKUT 229 and an expert report by Professor Peter French dealing with technical issues relating to the likelihood of false positive reporting of fraud in the ETS investigation process.

 

4. First-tier Tribunal Judge S. Taylor ("the judge") allowed the appeal in a decision promulgated on 15 December 2016. His findings relating to the 'Suitability' criteria and the allegation of deception are at [12]:

 

"The appellant applied for leave to remain in the UK as a spouse, the refusal has been on the sole ground that it is alleged that he used fraudulent means to obtain a TOEIC certificate in respect of his English language ability. The particular certificate which is in dispute dates back to 2012 and the respondent relies on evidence submitted by ETS which lists the appellant among several students at the centre whose results were found to be invalid. There is no other specific evidence relating to the appellant, other than his appears on the list of invalid results. The appellant denies the allegation and states that he genuinely attended the examination and passed. He gave a detailed statement and provided oral evidence which was consistent with his statement, which was not shaken by cross examination. It was submitted on behalf of the respondent that the appellant was unable to show proficiency in English at the hearing and had to rely at times on the services of the interpreter, several questions had to be put in English more than once. However, I note the comments in SM and Qadir that the Tribunal did not have expertise in measuring English ability and could only take a subjective view. If the appellant was unable to speak English at all that would be very clear. However there is no dispute that the appellant passed an English language test at level A2 in 2010, some two years prior to the disputed test, and he had passed an examination at level A1 in 2015. While it was pointed out that A1 was at a lower level than the disputed test at B2, it was noted that the A1 test was in respect of the marriage application and that was the required level. There is also no dispute that prior to the disputed test in 2012 the appellant successfully completed a level 5 course in business management. I therefore find, that notwithstanding the appellant's apparent poor English at the hearing, he has passed two undisputed qualifications prior to the disputed test, one at A2 and a level 5 course, and he has since passed a qualification at A1, which was all that was required at the time. While the ETS evidence casts doubt on the result of the B2 examination, the appellant gave consistent evidence that he genuinely took the test, and this is consistent with his other test passes, both before and since 2012. The sponsor stated in her evidence that the appellant was a simple individual and this may in some way explain his presentation at the hearing. On the required standard of proof I am satisfied that the appellant took the test in 2012 and the certificate was not fraudulent."

 

5. The respondent appeals the decision on the ground that the First-tier Tribunal failed to give adequate reasons to explain why the respondent's evidence did not discharge the legal burden of proof.

 

6. I have considered the grounds of appeal and the oral submissions, as well as the documentary evidence, before coming to a decision.

 

Decision and reasons

 

7. The judge heard evidence from the appellant regarding the ETS allegation and could assess him as a witness. It was open to the judge to take into account the fact that the appellant had provided a detailed witness statement and that his account was consistent in evidence at the hearing. It is also clear that the judge was aware of the decision in SM & Qadir in which the Upper Tribunal considered what weight could be placed on the generic evidence provided by the Secretary of State.

 

8. However, the evidence produced in this case was not confined to the 'Look-up tool' print out and the generic statements. The evidence produced by the respondent included specific reports relating to Synergy Business College including figures relating to the number of tests cancelled over a period of time and information relating to the tests taken on the day the appellant says that he took the test. The reports appeared to show that none of the tests taken at Synergy Business College over a 14-month period were deemed valid by ETS and that none of the tests taken on 20 March 2012 were deemed valid. The reports showed that 65% of tests taken on 20 March 2012 were deemed 'Invalid' due to evidence of fraud. This evidence was not generic or marginal. It indicated that there was likely to be a high level of fraud at the test centre where the appellant says he took the test.

 

9. The judge was right to say that there was little direct evidence from ETS to show individual fraud, but the evidence relating to the level of likely fraud at Synergy Business College was sufficiently material to require some analysis and reasoning. The statement that the appellant was "among several students at the centre whose results were found to be invalid" was not supported by the evidence. He was among a large majority of students at Synergy Business College whose results were found to be 'Invalid' on 20 March 2012. In assessing the credibility of the appellant's oral evidence, it was necessary for the judge to take into account the evidence produced by the respondent relating to the level of potential fraud at Synergy Business College. The judge failed to make any findings as to what weight should be placed on the evidence and failed to give sufficient reasons to explain why the respondent's evidence did not discharge the legal burden of proof. Had the evidence relating to Synergy Business College not disclosed such a high level of potential fraud the error might not have been material, but given the relevance of those figures to the credibility of the appellant's oral evidence, the failure to give adequate reasons to explain why the respondent's evidence did not undermine the appellant's oral evidence, amounts to an error of law.

 

10. A further error was identified at the hearing, which was accepted by the appellant's representative. The appellant made an in-time application for a variation of leave to remain from a Tier 4 Migrant to a partner under Appendix FM. Even if the judge had given adequate reasons to explain his findings relating to the 'Suitability' criteria, the consequence would be that the appellant would meet the 'Eligibility' and 'Immigration Status' requirements. It would then be necessary to consider whether the appellant met the 'Financial' requirements of Appendix FM. It would only be if he did not meet those requirements that it might be relevant to go on to consider paragraph EX.1. The First-tier Tribunal failed to consider whether the appellant met the 'Financial' requirements. The First-tier Tribunal judge who rehears the appeal may want to bear this point in mind.

 

11. The First-tier Tribunal decision involved the making of an error of law. The decision is set aside and the appeal is remitted to the First-tier Tribunal for a fresh hearing.

 

DECISION

 

The First-tier Tribunal decision involved the making of errors of law

 

The decision is set aside and remitted to the First-tier Tribunal for a fresh hearing

 

 

Signed Date 27 November 2017

Upper Tribunal Judge Canavan