Khan v Secretary of State for the Home Department

This is an oral reconsideration hearing following an order of Sir Stephen Silber dated 29 August 2018, who refused permission to appeal on the papers in this case. By an appellant's notice filed on 12 July 2016, the appellant seeks permission to appeal the order of Upper Tribunal Judge Archer, by which he dismissed a First-tier appeal against a decision of the First-tier Tribunal by Judge Sullivan, who in turn dismissed an appeal against a decision by the Secretary of State to (a) reject the appellant's application to vary his leave to remain and (b) to remove him from the United Kingdom. This is accordingly a second-tier appeal to which the second-tier appeal rules apply. With second-tier appeals, the applicant must show either (a) that there is a real prospect of success on appeal and that the appeal raises an important point of principle or practice or that there is a compelling reason for hearing the appeal. The appeal is limited to points of law.

I have looked carefully at this case and read all the documents and in particular the skeleton argument prepared by counsel in this case, Mr Rajiv Sharma of 1 Gray's Inn Square Chambers. I have also had the benefit of submissions in person from the applicant, Mr Shafikul Islam Khan, who has made his submissions very carefully and politely today. In my judgment, this appeal has no reasonable prospect of success and raises no important point of principle or practice, and neither is there any compelling reason to hear the appeal under CPR 52.7.

The background facts can be stated shortly. In February 2014, a BBC Panorama program revealed widespread fraud being used in the Test for English for International

As regards the applicant's background, a brief chronology will suffice. The applicant arrived in the United Kingdom from Bangladesh as a student in May 2019 and was granted leave to remain until 30 June 2010. On 15 July 2010 the Secretary of State for the Home Department granted the applicant leave to remain until 23 December 2012. On 22 December 2012 the applicant applied to vary his leave to remain to remain as a Tier 4 student migrant and sought an extension of time for submitting a confirmation of acceptance for studies (CAS). On 23 December 2012 the applicant's leave to remain expired. On 8 March 2013 the applicant submitted a CAS from Bell's College. Just over a year later on 31 July 2014, the Secretary of State wrote to the applicant informing him of concerns regarding test irregularities and the validity of a TOEIC certificate submitted in support of his leave to remain variation application. The applicant was asked to take a new test by 25 September 2014.

On 25 September 2014 the applicant's solicitors wrote to the Secretary of State for the Home Department (a) informing him that Bell's College was removed from the Tier 4 CAS register and (b) requesting an extension of time to allow the applicant to re-sit the TOEIC on 11 October 2014. It will be noted that this letter was received on the very last day of the three-month time limit that had been granted to the applicant on 31 July

On 28 October 2014, the Secretary of State refused the applicant's application to vary his leave to remain and issued the decision to remove him under the Immigration, Asylum and Nationality Act 2006 on the basis that (a) his CAS had been withdrawn and (b) he had no valid TOEIC certificate. The applicant's appeal of the Secretary of State's decision was refused by the First-tier Tribunal on 25 August 2015. His application to appeal that decision was refused by the Upper Tribunal on 20 May 2016, and the applicant's application for permission to appeal to the Court of Appeal was refused by Sir Stephen Silber on 29 August 2018. So it is that today the applicant in person seeks to renew his application in person to the Court of Appeal before me.

There are three grounds of appeal settled by counsel: first that the underlying requirement to re-sit the TOEIC test was improper; second, the decision of the Secretary of State was manifestly unfair and unjust and her discretion was improperly exercised; and third that the reason for the withdrawal of sponsorship was not considered.

Ground one

The nature of the irregularities which caused the initial TOEIC test results to be invalidated are not evidenced in the papers. The proper approach to proving fraud in ETS cases has been considered in detail by this court in Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167 and Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615: (1) the Secretary of State must show that there is, on the evidence, evidence of deception (the initial evidential burden); (2) if the Secretary of State clears this hurdle, the burden shifts to the individual claimant to prove a plausible, innocent explanation (again on the face of it); (3) if the individual provides such an explanation then the burden shifts back to the Secretary of State to disprove it (the legal burden); and (4) the standard of proof is on the balance of probabilities. Both Qadir and Chowdhury postdate the decision of the FTT and the UT below. It is therefore unsurprising that no reference was made to either in assessing whether the Secretary of State had discharged this initial evidential burden. That said, the failure by the appellant to challenge the underlying assumption

Ground two: fairness

The FTT held that the appellant had at least three months to re-sit the TOEIC. He had failed to take advantage of this opportunity, and there was no unfairness in the Secretary of State taking a decision some ten months later after the application was submitted. The Upper Tribunal found that there was no breach of the common-law duty of fairness. The First-tier Tribunal was correct to find the applicant had been given adequate time to re-sit. The Secretary of State had duly allowed the applicant's request for extension in line with the principles in Patel (consideration of Sapkota – unfairness) India [2011] UKUT 00484 (IAC) and Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 00151 (IAC). The applicant did nothing to assist his own cause by way of requesting further time and/or the return of his original passport. Nothing in the correspondence from the applicant's solicitors suggests that

Ground three

The first-tier Tribunal rejected the appellant's assertion that he did not know that the CAS had been withdrawn. He was aware by 25 September that Bell's College was no longer a Tier 4 sponsor, and he had been aware since 31 July 2014 that there were irregularities. In SSHD v Mohammed (supra) it was held that a Tier 4 student was to be afforded an opportunity to submit information on a new CAS sponsorship institution to avoid the unfairness of refusing an application automatically following revocation of an original sponsor's licence where the fact was unknown to the applicant. In my judgment, however the FTT's finding that the applicant knew about the fact the Bell's College CAS status had been withdrawn is fatal to this ground. He was given an adequate opportunity to rectify matters and he did not take it.

The applicant feels a sense of injustice in this case, but the chronology suggests otherwise. The applicant should well understand, as it was explained to him, that his is only one of many cases in the system and the system has to have a series of rules and deadlines by which it can properly operate. The failure of the applicant to take the necessary steps in time has meant unfortunately that he has been the author of his own misfortune.

The final point to make is that the test for second appeals is, as I have explained, very high. It is not every case that comes before the court on a second appeal that can be given permission to appeal. It is only very rarely that permission will be given on the basis of CPR 52.7. There is no important point of principle in this case or compelling reason for an appeal. What essentially the case put before the court is is of a disagreement about the facts of this case and the weight to be given to it by the Upper Tribunal and the First-tier Tribunal.

So, for all those reasons, this application for permission to appeal is refused.