Case No. UKUT-00450(IAC)

v SSHD (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) at [13] – [26] especially.(3)This statutory appeal is a so-called “ETS/TOEIC” case. “ETS” denotes Educational Testing Service, a global corporation based in the US which, under contract, is one of the Home Office suppliers of so-called “Secure English Language Testing” (“SELT”). “TOEIC” denotes “Test of English for International Communication”. This appeal was heard together with two related judicial review applications, Saha (JR/10845/2015) and Mohibullah (JR/2171/2015). These three cases were conjoined after the Tribunal had identified that they have certain issues in common and with a view to saving costs. A separate judgment is being delivered in each of the cases.(4)The Appellant is a national of Nigeria, aged 49 years. He was lawfully present in the United Kingdom as a dependant of his spouse who was granted a Tier 4 Student visa and subsequent extensions thereof from 2010 until 14 October 2014, the date of the impugned decision on behalf of the Secretary of State for the Home Department (the “Secretary of State”). His is another of the cases involving refusal of leave to enter at port and cancellation of entry clearance on the basis of alleged deception in procuring a “TOEIC” certificate, a recognised English language proficiency qualification, which he had obtained as a compulsory element of his application for permission to enter the United Kingdom in the capacity of Tier 1 Entrepreneur. Entry clearance for this purpose was granted to him on 24 May 2013. The business enterprise to which it relates involved establishing a visa application centre, which is his business activity at an international level.(5)The Appellant exercised his right of in-country appeal against the decision of the Secretary of State. By its decision promulgated on 27 April 2015, the First-Tier Tribunal (the “FtT”) concluded that the Secretary of State had not discharged the burden of proving deception and had, therefore, made a decision which was not in accordance with the law (one of the statutory grounds of appeal). The Secretary of State appealed with leave and, by its decision promulgated on 24 September 2015, the Upper Tribunal set aside the decision of the FtT. It did so principally on the ground that the FtT had erred in law by failing to properly understand and engage with certain evidence. A series of case management and interlocutory hearings having intervened, it now falls to the Upper Tribunal to remake the decision of the FtT.(6)At the commencement of the hearing, it became necessary for the Tribunal to make a preliminary ruling on the twin issues of the permitted grounds of appeal and the admissibility of certain documentary evidence upon which the Secretary of State was seeking to rely. Our ruling is attached at Appendix 1.(7)The final prefatory matter is the issue of dates. The two most important dates in the factual matrix are, by some measure, 28 February 2013 and 20 March 2013. The first of the two TOEIC Certificates pertaining to the Appellant recites that on the first of these dates he, having undergone the first limb of the test, secured scores of 445 out of 495 and 410 out of 495 in the skills of listening and reading respectively. The second TOEIC Certificate records that on 20 March 2013 the Appellant secured a score of 200 out of 200 for the skill of speaking and 190 out of 200 for that of writing. The spotlight in this appeal is firmly, though not exclusively, on the speaking score which he claims to have obtained.The Secretary of State’s Decision(8)As noted above, the decision made on behalf of the Secretary of State which underlies these proceedings was made at port on 14 October 2014. The Appellant, having flown from abroad, was detained at Heathrow Airport on suspicion of having engaged in TOEIC fraud and was interviewed. This resulted in a decision of the Border Force officer concerned cancelling the Appellant’s leave to remain in the United Kingdom and refusing him leave to enter under paragraph 321A(2) of the Immigration Rules, which provides:“The following grounds for the cancellation of a person’s leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply: …..(2) False representations were made or false documents were submitted (whether or not material to the application and whether or not to the holder’s knowledge), or material facts were not disclosed, in relation to the application for leave; or in order to obtain documents from the Secretary of State or a third party required in support of the application …..”The error of law diagnosed in the decision of the FtT giving rise to this remaking exercise concerned the Judge’s approach to this provision of the Rules.(9)The Secretary of State’s case, in a nutshell, is that the Appellant procured the second of his two TOEIC Certificates by fraud. Thus, we observe, the shifting burdens of proof outlined in SM and Qadir at [57] – [58] are engaged.