Kulasekara v Secretary of State for the Home Department

This is the appeal of Sidath Don Kulasekara from the determination of Senior Immigration Judge Jarvis promulgated on 10 March 2010 dismissing his appeal under the Immigration Rules and Article 8 of the European Convention on Human Rights. The appeal to this Court is confined to the decision under the Immigration Rules.

The appellant is a citizen of Sri Lanka. In June 2009 he applied for leave to remain in this country as a Tier 1 (General) Migrant. His application was refused on the ground that in a previous application he had submitted a postgraduate qualification in Business Management and an academic reference from the Cambridge College of Learning (“CCOL”), and the documents he had submitted were false because CCOL had never offered a legitimate postgraduate qualification in Business Management.

The appellant appealed against the respondent’s decision. His appeal was heard by Immigration Judge Callender-Smith and allowed. The respondent sought and obtained an order for reconsideration. His appeal was then heard by Senior Immigration Judge Jarvis on 1 March 2010. She considered the evidence afresh, neither side suggesting that she was bound by any finding made by Immigration Judge Callender-Smith.

The Senior Immigration Judge came to decide this case following the decision of the AIT (Senior Immigration Judges Storey, Lane and Pinkerton) in NA and others (Cambridge College of Learning) [2009] UKAIT 00031. In addition, the decision of this Court in AA (Nigeria) [2010] EWCA Civ 773 is highly relevant. In AA, the Court considered paragraph 322(1A) of the Immigration Rules (HC 395), which is headed “Refusal of variation of leave to enter or remain or curtailment of leave”, and states that leave to remain in the United Kingdom “is to be refused” –

“(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application.”

The Court held that “false” in this Rule means “deliberately false”. In other words, it does not apply to a representation or information that is made or supplied by an applicant innocently: the applicant must have deliberately made or provided the representation or information, knowing it to have been false, if the Rule is to apply.

In NA, the Tribunal considered three appeals by appellants claiming to have taken and passed postgraduate courses in Business Management at CCOL. The Tribunal concluded that CCOL had issued false certificates to the effect that the persons named in the certificates had passed legitimate courses in that subject. NA had submitted a diploma certifying that she had undertaken a course at CCOL leading to a Postgraduate Diploma in Business Management (“PgDip BM”) and passed the examinations in September 2008. In January 2009, the respondent refused her application, stating:

“I am satisfied that all the documents submitted from the [CCOL] were false, because [CCOL] has never offered a legitimate Post Graduate Qualification in Business Management …. As false documents have been submitted in relation to your application, it is refused under paragraph 322(1A) of the Immigration Rules.”

The facts relating to the second appellant, ST, were materially similar. The third appellant, MR, had relied on a CCOL certificate to the effect that he had successfully taken a course leading to his receiving a Post Graduate Qualification in Information Technology.

The circumstances that led the respondent to doubt the genuineness of the certificates and other documents issued by the CCOL were set out by the Tribunal in paragraph 2 if its determination:

“2.

Sometime in the summer of 2008 the United Kingdom Border Agency (UKBA) began to be concerned about the large number of applications it was receiving for the new Tier I (Post-Study Work) scheme (which had begun on 30 June 2008) from students enclosing PgDips in either BM or IT awarded by the CCOL. By 6 October 2008 spreadsheets relating to 204 CCOL-related applications had been compiled revealing a number of anomalies. Monitoring continued over the next few weeks. A further reason for concern was that it had been reported that a significant number of applications put forward academic transcripts with identical percentage marks across all exams or modules. Over 2,500 CCOL-related applications falling into the PgDip BM or PgDip IT categories were received between 22 October 2008 and 22 December 2008. In addition, a check on the Home Office records disclosed that there were 181 students with current leave to remain within the student category to attend CCOL and a further 136 had valid entry clearance. On 31 October 2008 all CCOL-related applications were put on hold. The mounting causes for concern led to Operation Asterion, a UKBA led enforcement visit paid on 2 December 2008 by the Area 3 Criminal Investigations Team accompanied by officers from the London and South East Intelligence Unit (RIU). That visit compounded UKBA’s concerns about the college and led to them taking steps to ensure that the college was removed from the DIUS register on 4 December 2008. It appears that the college then closed on 8 December 2008 and it has never re-opened. On 22 December 2008 UKBA issued instructions to caseworkers to refuse all immigration applications based on CCOL studies or awards.”

The evidence before the Tribunal included the witness statements and oral evidence of Saamia Ullah. It was summarised in paragraph 23 of the determination as follows:

“Miss Ullah had given two statements, one on 4 December 2008, another on 3 June 2009. In her 4 December statement she described her role as the head of department for business and management within CCOL. In performance of this role she managed the entire Association of Business Executives (ABE) department, as well as being course instructor on this course from July 2007. … She stated that ‘I am certain that no courses were and have been running for postgraduate diplomas of any type at [CCOL], nor are we an organisation that can award such a qualification’. In her section all exams had to be marked by the awarding body. In her second witness statement Miss Ullah said that she had been employed at CCOL, originally on a part-time basis, since January 2006, becoming Head of Business Management from January 2007 until the college closed. Her responsibilities included overall responsibility for the day to day running of the Business Department and the ABE courses offered within her department. She had an overview of the attendance in all of the business classes as lecturers would report their attendance result to her. … She was also responsible for the hiring of lecturers for the department, although she was not involved in the setting up or teaching of the ILM programme which started in mid-2008. … During her time at the college she did not see any PgDip course taught nor any PgDip students either in class rooms or on any attendance records. She had not heard of any curriculum for such a course, nor had she ever met any staff members who were teaching a PgDip in BM. She was confident in saying that the PgDip in BM did not exist. It was not possible that an entire PgDip course could have been offered in her field without her being aware of it. Accreditation from ILM for CCOL to run its Postgraduate diploma course was for a very short time. She mentioned that towards the end of 2008 she noticed a number of people who would begin to arrive at reception after 5 pm. They would always ask for Mr Kashif. They would arrive in groups of 5 or 10 and would group together in the student common room on the ground floor. She recalled overhearing a conversation when one male was speaking on his mobile telephone in Urdu. He told the person to whom he was speaking that he was not willing to pay £2,500 and he would ask if he could pay less. She gave in her notice on 5 November because she had become deeply suspicious about what was happening at the school. Some students told her that CCOL sold fake diplomas around London and had many agents. She was serving out her notice period at the time of the visit from immigration officers and police on 2 December 2008.”

Following an exhaustive summary and analysis of the evidence before it, during the course of which the Tribunal found that Miss Ullah was a reliable witness of truth, the Tribunal’s factual conclusions were stated in paragraphs 145 and 147:

“In the light of the above we find that the respondent has discharged the burden of proving on the balance of probabilities that CCOL never ran its own PgDip courses in BM or IT. We further find that the period of time during which the college was ILM-accredited for the Level 7 ILM diploma in Executive Management was too short for any CCOL student to have completed that course and those who had been registered with the ILM could never have completed various requirements for its successful completion. We should add that in the end the debate about the standard of proof has proved somewhat academic, in that we are absolutely confident that even on Mr Macdonald’s view of this (as being indistinguishable from the criminal standard of proof) our findings on the aforementioned matters would have been the same.

….

147.

It will be apparent from our above findings that we consider that no person claiming to have undertaken a PgDip course in IT or BM at CCOL can have done so without knowing that such a claim amounted to a false representation.”

The present appellant had provided to the respondent a diploma issued by CCOL stating that he had been awarded a PgDip BM “having successfully completed an approved course of study and having satisfied the bd of examiners on (sic) May 2008”. In addition, he had relied on a document entitled “Transcript of Academic Record” dated 30 May 2008 stating he had started the course in September 2007 and that it had ended in May 2008, and setting out his marks in 8 subjects. His case was that the certificate and Transcript were genuine documents issued following his successful completion of his course at CCOL. He had originally enrolled at CCOL for a course leading to a PgDp in Executive Management, which started in September 2007, but in January 2008 the management had told him that there had been a change in the course title to PgDip BM. He had duly passed the examination and received the documents on which he relied, which were genuine.

The case for the respondent was that the appellant had never completed the course in question, had never taken the examinations, and that the diploma and Transcript were, as he knew, false.

Before the Senior Immigration Judge, it was common ground, as it was before us, that if the respondent proved that appellant had not completed the course and passed the examinations for the PgDip BM, he must have known that the documents in question were false and therefore was rightly refused leave to remain.

The appellant gave evidence to the Senior Immigration Judge in accordance with his case. He produced no documentary evidence in support of his case apart from the diploma, the “Transcript of Academic Record”, and some photocopies of hand-written notes, produced late, said to be his course notes. The respondent relied on the witness statement of Miss Ullah, those of two other witnesses whose evidence had been before the Tribunal in NA, and the decision of the Tribunal in that case.

There was a remarkable lack of documentation supporting the appellant’s case. The lack extended to proof of his payment of the course fee, said to be £4,000 plus VAT, and to have been paid in cash. Neither the appellant’s receipt of that sum from Sri Lanka, where he said it had come from, nor his payment of that sum to CCOL, were documented. Indeed, it is improbable that payment of a genuine course fee would be made in cash, with no receipt. The Senior Immigration Judge remarked on this in paragraph 20 of her determination:

“The appellant said that he had paid £4000.00 plus VAT to CCL for the course. He did not know the total cost but it was nearly £5000.00. He had no supporting evidence to show that he had paid this sum to CCL such as a receipt or any bank statement to show a debit to CCL or a withdrawal of the relevant sum. He agreed that he had finished the course less than 2 years ago and not three years ago as he has just said. The only materials that he had retained from CCL were some 30 odd handwritten notes from classes. He had no lecture handouts, no reading lists or other documents. He said that there were no reading lists because there was self-study and students looked things up in the library. Books were expensive. He was told in class which books to look at in the library. He had no lecture timetable to produce.”

Some documents produced by the appellant were adverse to his case. The Senior Immigration Judge referred to two:

“17.

In addition, the appellant has produced a diploma and an advanced diploma in hotel management from the Institute of Hospitality, Confederation of Tourism Hotel Catering Management. The diploma is dated 30 November 2007 and the advanced diploma 28 March 2008. These were not referred to at the hearing so that it is not clear where and when the appellant was following this course of study save to say that it overlaps with the time when he was said to have been at the CCL studying for his PGDipBM.

18.

There is also a letter dated 10 December 2007 from Thames Valley University (TVU) to the appellant making him an offer of a place to commence studies on a BA (Hons) Hospitality Management degree, year 3, in February 2008, provided that he has passed all units in the advanced diploma CTHCM. (This appears to be the advanced diploma dated 28 March 2008). Clearly, therefore the appellant could not meet the requirements of TVU in order to take up a place in February 2008. He said that he had chosen CCL because it was cheaper and also because he would not have been able to start at TVU.”

Very sensibly, Ms Peterson, who appeared for the appellant before the Senior Immigration Judge, did not require Miss Ullah to testify in person or to attend for cross-examination. It was open to, and appropriate for, the Senior Immigration Judge to rely on Miss Ullah’s witness statement, and the findings of the Tribunal in AN. I would deprecate any request by an appellant to require a witness such as Miss Ullah, who has given evidence and been cross-examined before a tribunal in what was intended to be a precedent determination, to attend for cross-examination unless there are specific matters to be put to her that were not the subject of investigation in the previous proceedings.

The Senior Immigration Judge considered that the appellant’s evidence was inconsistent with that of Miss Ullah. She concluded at paragraph 70:

“I am satisfied that the witness statements, and in particular that of Ms Ullah, as well as the determination in NAand Ors do suffice to enable the respondent to discharge the burden of showing that the CCL PGDipBM, dated May 2008, number CCL-05870068, produced by the appellant in support of his IGS application is not likely to be genuine. It follows that the respondent has shown that the appellant did use deception in the past in relation to this previous IGS application and therefore that he had made a false representation in the current application (Q22, pageA15 respondent’s bundle).”

In paragraph 72 of her determination, the Senior Immigration Judge referred to the intrinsic improbability of the appellant’s claim and stated:

“I reject the appellant’s evidence as to all matters concerning CCL and the certificate and transcript that he has produced. He was unable to support his claim to have studied at CCL as claimed with any cogent evidence. He told Immigration Judge Callender Smith that he had completed both the diploma and advanced diploma in Hotel management before he enrolled at CCL in 2007, but the dates of these awards overlap with the period when he said he was studying at CCL.”

Before us, Miss Peterson submitted that there was insufficient evidence before the Senior Immigration Judge to justify her finding of fraud on the part of the appellant; alternatively, that her reasons did not justify that finding.

In my judgment, there is no substance in either of these submissions. As is apparent, there was more than adequate evidence before the Senior Immigration Judge to justify her conclusion, which was based on the oral testimony before her, the witness statements and other documents before her and the lack of documentation one would expect to have been available to the appellant. She gave adequate reasons for her findings. Her reference to deception in paragraph 70, cited above, demonstrates that she found that the misrepresentation had been deliberate, as required for the purposes of paragraph 322(1A) of the Immigration Rules as construed in AA. In any event, if, as the judge found, the appellant had not undertaken the course or passed the examinations for the diploma on which he relied, as found by the judge, his misrepresentation must have been deliberate.

It is true that the Senior Immigration Judge’s statement, in paragraph 70, that the appellant’s diploma “is not likely to be genuine”, viewed in isolation, might be open to the interpretation that the Senior Immigration Judge did not find that there was sufficiently strong evidence of fraud on the part of the appellant. However, it is trite law that the determination must be read as a whole. At paragraph 56 of her determination, the judge reminded herself that the burden of proof was on the respondent, applying the usual civil standard of the balance of probabilities. At paragraph 56 she set out the paragraphs of the determination in NA in which the AIT had accepted that it was:

“for the respondent to satisfy us he has discharged the burden of proof on him on the balance of probabilities he would, in the context of this type of case, need to furnish evidence of sufficient strength and quality and he (and the Tribunal) would need to subject it to a “critical”, “anxious” and “heightened” scrutiny.”

The conclusion of the Senior Immigration Judge at paragraph 72, cited above, is unequivocal and clear. I have no doubt that she had in mind the need for the evidence establishing deliberate misrepresentation to be of sufficient strength and quality to justify the finding she made. Indeed, in my judgment the facts and evidence before her pointed cogently to her conclusion.

For these reasons, I would dismiss the appeal.

I agree.

I also agree.