Upper Tribunal (Immigration and asylum chamber), 2017-05-04, JR/1260/2016
| Jurisdiction | UK Non-devolved |
| Date | 04 May 2017 |
| Published date | 29 November 2017 |
| Hearing Date | 27 April 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | JR/1260/2016 |
Case No. JR/1260/2016
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: JR/1260/2016
Field House
15‑25 Breams Buildings
London
EC4A 1DZ
22 March 2017 and 27 April 2017
Before:
UPPER TRIBUNAL JUDGE GLEESON
Between:
habib
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Rajiv Sharma appeared on behalf of the Applicant on 22 March 2017. The applicant appeared in person on 27 April 2017.
Mr colin thomann appeared on behalf of the Respondent at both hearings.
APPROVED JUDGMENT
UTJ GLEESON: The applicant has permission to challenge by judicial review the respondent’s decision on 5 November 2015 to revoke his indefinite leave to remain in the United Kingdom on the grounds that he has used deception. The applicant is a Bangladeshi citizen: he has with him in the United Kingdom his Bangladeshi citizen wife, who still has indefinite leave to remain and their child, who was born here in 2010 and is a British citizen.
Background
-
The applicant has been in the United Kingdom since August 2002, studying first for a law degree at the University of London, then the Legal Practice Course, taken at the University of Thames Valley (now the University of West London) with a view to qualifying as a solicitor. The applicant had leave to remain continuously as a student or on post-study leave until 30 September 2012. All of the applicant’s applications for leave to remain were made before previous leave expired.
-
The deception in question relates to the applicant’s reliance in an application in January 2012 on an ETS/TOEIC test which he claims to have taken on 15 November 2011 at Elizabeth College. The applicant relied upon that test result to gain his last period of Tier 4 (General) leave on 14 January 2012, which helped to establish the 10-year period he then relied upon when applying for indefinite leave to remain.
-
The respondent considers Elizabeth College to be a ‘fraud factory’ and that no test taken there at that time, even where sat in person, can be regarded as genuine. It is the applicant’s case that his certificate is genuine and that he did attend and take the test personally at Elizabeth College. The applicant was granted indefinite leave to remain in the United Kingdom in May 2013, along with his wife, and their daughter was then recognised as a British citizen. She is 7 years old now.
-
From 2007-2009, when he had post-study leave, the applicant ran an OISC advice practice, before resuming his studies in 2009, hoping to achieve a Masters’ degree in Law (LLM). Those studies were interrupted by health problems, which the applicant describes simply as ‘stress’, and when he began again in 2012, the applicant was affected by the tightening of the Rules as to English language competence and qualifications. His College required him to sit an ETS/TOEIC test before they would provide a CAS.
-
The applicant is not a qualified solicitor, nor, presently, is he a solicitor in training. He has undertaken several post-graduate diploma courses, and a number of unpaid internships with law firms, but has not been offered a training contract by any of them. The applicant ascribes this to ‘high competition’.
-
The Elizabeth College fraud was discovered during the respondent’s Immigration and Intelligence Directorate Project Façade investigation, for which an interim report was produced in 2014. On 11 January 2015, the applicant came to adverse notice when he was arrested for taxi touting.
-
The respondent’s look-up tool identified the applicant as one of those who used a ‘pilot’ or proxy test taker, and his ETS TOEIC certificate was withdrawn on that basis. The applicant’s indefinite leave to remain was revoked on 5 November 2015. He was served with notice of revocation of indefinite leave and of his liability to removal. His wife’s indefinite leave and his daughter’s British citizenship were not affected.
-
On 27 April 2015, the applicant applied for naturalisation as a British citizen, but failed to respond to two biometric information letters from the respondent. On 19 July 2015, the respondent’s immigration enforcement team attempted to visit him at his home, but could not gain entry. On 22 January 2016, the respondent refused the applicant’s application for naturalisation. There is no challenge to the refusal of naturalisation or to the Article 8 ECHR element of the respondent’s decisions.
-
On 18 November 2015, with the assistance of Dynamic Solicitors, the applicant challenged the revocation of his indefinite leave to remain, based upon his Article 8 ECHR private and family life. The applicant’s solicitors served a Pre-Action Protocol letter on 3 December 2015, and the respondent replied, maintaining her decision, on 7 December 2015. The respondent has invited the applicant to make a paid Article 8 application, but the applicant has not done so.
-
On 4 February 2016, the applicant, acting in person, issued judicial review proceedings, challenging only the revocation of indefinite leave to remain.
Permission for judicial review
-
Permission for judicial review was granted by Upper Tribunal Judge Blum at an oral renewal hearing on 4 May 2016 on the basis that:
“1. In circumstances where the respondent would have been aware (i) of the criticism levelled against the methodology employed by ETS in determining whether a proxy tester was used (R on the application of Gazi v Secretary of State for the Home Department (ETS – judicial review) IJR [2015] UKUT 00327 (IAC)) especially at [8]-[15], and (ii) the applicant’s educational background (he was awarded an LLB in 2004 and completed the Legal Practice Course in 2007), it is arguable that the respondent was required to give the applicant an opportunity to make representations prior to her decision to revoke his ILR.
2. It is additionally arguable that, in light of the criticism in Gazi and the fact that the respondent was in possession of the expert report form Dr Harrison since at least March 2015, there was no ‘worthwhile evidence’ before the respondent of deception practised by the applicant, and that the respondent was not rationally entitled to conclude that the applicant exercised deception, a conclusion underpinning the challenged decision.
3. Although it did not form part of the judicial review grounds the Upper Tribunal may also wish to consider whether the respondent lawfully applied section 76(2) of the Nationality, Immigration and Asylum Act 2002, given that the applicant did not appear to rely on his ETS test result in his ILR application, although regard will need to be given to section 7.12 of the ILR application form.”
-
Mr Sharma for the applicant accepted that following Abbas, ground 3 is unarguable, and it was not pursued at the hearing.
Upper Tribunal hearing
-
The Upper Tribunal is seised therefore only of the question whether the respondent’s revocation of the applicant’s indefinite leave to remain in the United Kingdom was lawful. The existence of the Secretary of State’s power to revoke indefinite leave under section 76 of the Nationality, Immigration and Asylum Act 2002 (as amended) depends on deception having been used. In the light of the decision of Mr Justice William Davis at [7] in R on the Application of Abbas v Secretary of State for the Home Department [2017] EWHC 78 (Admin), it was common ground that the Upper Tribunal is required to make a finding of precedent fact as to whether the applicant used deception.
-
This application had previously been adjourned by consent, to await the outcome of a number of relevant Upper Tribunal decisions, which have been reported as R on the application of Saha & Another v Secretary of State for the Home Department (Secretary of State's duty of candour) [2017] UKUT 17 (IAC) (Saha), Mohibullah, R (on the application of) v Secretary of State for the Home Department (TOEIC - ETS - judicial review principles) [2016] UKUT 561 (IAC) (Mohibullah), and MA (ETS - TOEIC testing) Nigeria [2016] UKUT 450 (IAC) (MA (Nigeria)).
-
All of those decisions now having been promulgated, the application has been restored for substantive judicial review.
Evidence
-
The applicant’s evidence consists of his witness statement and his oral evidence. He has not called for the sound files for his test and there is no independent evidence to show whether he took the test personally.
-
The respondent relies on evidence which she says shows that the Elizabeth College ETS/TOEIC testing was a ‘fraud factory’, as follows:
-
Project Façade – criminal inquiry into abuse of the TOEIC, Elizabeth College, London (Criminal Investigations (Immigration) dated 15 May 2015. This document, prepared by Detective Inspector Andrew Carter of the Immigration and Enforcement Criminal and Financial Investigation Team, would have been within the respondent’s knowledge when she made her decision in November 2015.
-
witness statements and supporting documents...
To continue reading
Request your trial