KS (India) v The Secretary of State for the Home Department

The appellant is an Indian national. His Leave to Remain (“LTR”) was curtailed in October 2014 because it was decided that he had cheated in his English-speaking test. That decision was upheld by the First-Tier Tribunal (“FTT”). The appellant appealed to the Upper Tribunal (“UT”) and his appeal was rejected. The UT refused permission to appeal and the renewed application to this court was refused on the papers by Sir Stephen Silber. The appellant has exercised his right to an oral hearing of that application.

The decision curtailing the appellant’s LTR was dated 23 October 2014. The respondent concluded that the appellant was someone who had sought leave to remain by deception. The appellant had relied on a certificate from the Educational Testing Service (“ETS”) but when ETS undertook a check, they determined that there was significant evidence to conclude that the certificate was fraudulently obtained by the use of a proxy test-taker.

The appellant appealed to the FTT. There was evidence from Mr Peter Millington and Miss Rebecca Collings about general abuse of the ETS system and the way in which the tests were reviewed for fraud. The appellant relied on a report from a Dr Philip Harrison about the testing for fraud which was generic, in that it made no specific references to the appellant’s case.

Importantly, the FTT judge also heard oral evidence from the appellant. The judge found that the appellant’s English “was of a poor level” and that this was “indicative of the fact that the appellant had motivation to rely on a proxy test taker”. He was unpersuaded by the expert’s report. He therefore refused the appeal.

Permission to appeal was granted by the UT. The hearing took place on 3 December 2015. The appellant was asked to provide his own copy of the official score report to ensure that it was the same as the report referred to at the hearing by Mr Kondala, counsel for the Home Office. This was provided on 7 December 2015, together with further submissions from the appellant’s then counsel.

The Deputy UTJ’s decision was dated 4 January 2016. She found that the FTT judge had been entitled to rely on the appellant’s poor English language skills at the hearing as an indicator as to whether he would need a proxy to take his test for him. She went on:

“23.

The judge’s decision is bolstered by the fact that at the hearing Mr Kondala produced the appellant’s English-language results which reflect that the appellant received 200 out of 200 for English-language speaking skills. These full marks for his English-language speaking skills is (sic) at odds with the judge’s observation that the appellant had poor English language skills at the hearing. A judge is entitled to make such an observation on the quality of an appellant’s language skills which he observes before him. Therefore I find on the evidence no differently constituted Tribunal would come to a different conclusion.”

Accordingly, the UT rejected the appeal. Permission to appeal against that decision was refused on 8 February 2016, the UTJ rightly pointing out that it was a second appeal and that it could not be said that it raised an important point of principle or practice or other compelling reason for the appeal to be heard.

The grounds of appeal on which the appellant now seeks to rely raise every point that has already been considered, and rejected, by the judges of the FTT and the UT. Accordingly, on 11 January 2018, Sir Stephen Silber rejected the application for permission to appeal to this court. He did so on two bases: first, that the necessary grounds for a second appeal had not been made out; and that secondly, the appeal itself had no real prospect of success for a number of different reasons. Despite this, the appellant has exercised his right to an oral renewal hearing.

Pursuant to the Upper Tribunal to the Court of Appeal Order 2008, a second appeal can only be permitted if it raises an important of principle or practice, or if there was some compelling reason for the appeal to be heard. No such point of principle or practice has been identified and no compelling reason has been demonstrated.

The appellant’s case, at its highest, is that the FTT and the UT were wrong to find that there was evidence to the necessary standard that he had cheated in his English-speaking test. That is quintessentially an attack on the underlying findings of fact by those Tribunals. In my judgment, it is quite impossible for the appellant to reshape that attack into a point of principle, much less an important and compelling one.

This morning, Ms Brown, addressed this issue. The points she relied on in her helpful advocate’s statement were a) procedural unfairness; b) a suggestion that the Deputy UTJ did not have regard to the material provided on 7 December 2015; c) the failure to give sufficient weight to Dr Harrison’s report; and d) the fact that the FTT judge could not rely on his own assessment of the appellant’s English-language speaking skills.

In my judgment, these points are unarguable; they get nowhere near the second appeals test in any event. In short:

Accordingly, for these reasons alone, this application for permission to make a second appeal must be refused.

Further and in any event, I respectfully agree with Sir Stephen Silber that, on a proper analysis, the appeal has no prospect of success. I deal shortly with the individual points.

First, it is said that the judges of the FTT and UT failed to have regard to the higher burden of proof that the respondent has to satisfy when she is endeavouring to demonstrate fraudulent conduct. There is nothing in that submission. The FTT judge expressly made plain that the respondent had to discharge a higher burden of proof and that she had done so: see paragraph 15 of his judgment. The UT judge did the same thing: see paragraph 14 of her judgment.

The next complaint is that the FTT failed to take into account the report of Dr Harrison. However, that was a generic report which did not relate to the appellant’s particular case. On the other hand, there were elements of the respondent’s evidence which did relate to the appellant’s case: see paragraph 14 of the FTT decision and the reference to “his details were contained in an appendix.”. It was therefore unsurprising that it was that evidence which was found to be decisive. In any event, it was well within the powers of the FTT judge to give little weight to Dr Harrison’s report. That is not a matter that could now be the subject of an appeal, particularly as the Deputy UTJ dealt with the report in detail at paragraphs 18 – 20 of her judgment. She found that the FTT judge dealt properly and appropriately with that evidence. I agree.

Ms Brown relied on SM and Qadir [2016] UKUT 00229 (IAC), a UT case in which Dr Harrison’s evidence was found to be of some assistance. That decision is obviously not binding on me. But more importantly it only emphasises the point that each case is different, with different facts, the evaluation of which is entirely a matter for the judge. It is of no help to this appellant that on the different facts of another case Dr Harrison’s evidence was found to be useful.

Next, there is a suggestion that the FTT judge did not give proper reasons for his findings in relation to the subsidiary Human Rights case. That again is wrong on the facts: see paragraphs 21 – 28 of the FTT judge’s decision. This was not a matter pursued by Ms Brown.

Finally, I consider that the FTT judge’s separate finding as to the appellant’s poor English-speaking skills when giving evidence creates an insurmountable obstacle to this application. In his skeleton argument, Mr Tabori (the appellant’s first counsel) sought to say that in some way this part of the FTT judge’s findings was irrelevant. I profoundly disagree. The position was that the appellant had scored 200 out of 200 in the English-speaking test. His speech was noted as being “highly intelligible” and his use of vocabulary was “accurate and precise”. Voice-recognition devices had demonstrated to ETS’ satisfaction that he had cheated to obtain this perfect score. What better way for the appellant to demonstrate that he deserved that score, and those remarks, by attending before the FTT and giving evidence in the sort of fluent spoken English that had justified full marks in the first place?

Instead, the FTT judge found that the appellant’s English was so poor that there were times when it was impossible to understand what he said. That seemed to the judge, and to the Deputy UTJ, and to Sir Stephen Silber, and seems now to me, to comprise complete corroboration of the central allegation in this case: that the appellant had obtained full marks in the test by fraud. Far from being irrelevant, I consider that this finding provides separate but compelling corroboration of the correctness of the original decision to curtail the appellant’s LTR.

Ms Brown suggested that, because the appellant was neither fluent nor wholly incapable of speaking English, and so fell between what she described as “two extremes”, it was “arguably unlawful” for the judge to have formed his own assessment. That is wrong in principle. The judge was permitted to consider and reach a conclusion on this point. Indeed, although Ms Brown cites the decision of this court in Majumder v SSHD [2016] EWCA Civ 1167, it is apparent from paragraphs 25 and 26 of the judgment of Beatson LJ that, as he put it, “these are the sorts of assessments of factual evidence that the UT was entitled to undertake”.

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