The Secretary of State for the Home Department v Akter & Ors [2022] EWCA Civ 741 (27 May 2022)
Upon the SSHD’s appeal, the Court of Appeal held that a case in which she had relied on generic evidence from Educational Testing Service to discharge the evidential burden of establishing that an English for International Communication certificate was obtained by fraud, the First-tier Tribunal had been entitled to give little weight to the conclusions of a 2019 report on English language certificates by an all-party parliamentary group (APPG) into that evidence. The SSHD was unhappy that the Upper Tribunal allowed an appeal by Halima Akter (HA) against the decision-maker’s refusal to grant her leave to remain in the UK. Macur, Peter Jackson and Andrews LJJ held that the key decision in DK and RK (ETS: SSHD evidence, proof) India [2022] UKUT 112 (IAC)—DK and RK (2)—was an authoritative decision and unless contradicted by credible evidence, the generic evidence was sufficient to discharge the evidential burden. HA arrived in the UK on student visa and had successfully extended her leave to remain. As part of her application, she had submitted a Test of English for International Communication (TOEIC) certificate obtained from Educational Testing Service (ETS). The SSHD had served a notice of administrative removal, after having received “generic” information from ETS which satisfied her that HA’s TOEIC certificate had been obtained by deception.
HA sought leave to remain on the basis of by article 8 of the ECHR, her application was, however, refused. She appealed to the FTT, relying on the conclusion of the APPG report which, she asserted with some vehemence, undermined the generic evidence on which the decision-maker relied. The FTT found the APPG report to attract little evidential weight and it concluded that the SSHD had satisfied the evidential burden of establishing that the TOEIC certificate had been obtained by deception. On appeal, the UT held that the FTT had failed to adequately engage with the report, which bore significant evidential weight. It went on to allow HA’s appeal on article 8. The aggrieved SSHD submitted that the UT’s conclusion that the report so undermined her case on fraud that she had not discharged the evidential burden was perverse, inadequately reasoned and wrong in law. And, indeed, the Court of Appeal concurred with the SSHD and allowed her appeal. The UT’s sole reason for setting aside the FTT decision was that the FTTJ had failed adequately—or at all—to engage with the APPG report. The SSHD filed an application pursuant to rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 inviting the UT to set aside its earlier decision on the basis that it breached decided authority: SSHD v Shehzad [2016] EWCA Civ 615 and Majumder v SSHD [2016] EWCA Civ 1167, whereby the generic evidence relied on by the SSHD is sufficient to discharge the initial evidential burden of proof.
The SSHD was aggrieved that the UT had not taken into account that the APPG had not received evidence from the SSHD. The APPG report was not akin to judicial scrutiny of evidence. UTJ dismissed the application on the basis that she had directed herself with reference to SM and Qadir v SSHD (ETS – Evidence – Burden of Proof) [2016] UKUT 00229. Consequently, the SSHD conceded that, per Ahsan v SSHD [2017] EWCA Civ 2009, HA’s removal from the UK would be incompatible with article 8 and her appeal was therefore allowed.
The SSHD sought permission to appeal which was stayed by the UT until after the final determination in DK and RK (Parliamentary privilege: evidence) [2021] UKUT 61 (DK and RK (1)). On 6 October 2021, the UT granted the SSHD permission to appeal to the Court of Appeal.
In Alam v SSHD [2021] EWCA 1538, the court considered the reliance placed upon the APPG report on behalf of an aggrieved claimant accused of cheating to obtain his TOEIC certificate. Underhill LJ concluded that Dove J in the UT was entitled to attach weight to the SSHD’s key submissions to the effect that there had been no cross-examination of the witnesses, and no evidence from the Home Office or ETS, before the APPG, whereas the so-called “generic” evidence, including that of Professor French, had been considered and evaluated in a number of decisions of the Court of Appeal and the UT. The appeal in Alam was dismissed with the one caveat that the Court of Appeal would not wish its very case specific reasoning to inhibit any wider analysis that the UT may undertake in the pending appeal of DK and RK.
Further, in any event, DK (ETS: SSHD evidence: Proof), Re [2022] UKUT 112 (IAC) was authoritative: the UT had concluded that evidence derived from ETS to establish cheating was amply sufficient to do so where not undermined or contradicted by credible evidence, and that mere assertions of ignorance or honesty were very unlikely to prevent the SSHD from establishing—on the balance of probabilities—that a TOEIC certificate had been obtained by deception.
The perfected grounds of appeal asserted that (i) there was no error of law in the FTTJ’s decision, and it was not open to the UT to interfere with it; and (ii) the UT’s conclusion that the APPG report undermined the SSHD’s case as to the fraud to the extent that it no longer discharged the evidential or legal burden of proof was wrong in law, inadequately reasoned and perverse. Allowing the appeal, Macur LJ held that:
31. The UT decision in this case simply cannot withstand the criticism levelled against it in the grounds of appeal. The UTJ describes the Report as having “significant evidential weight”, and specifically relies upon the conclusions of the APPG regarding the reliability of expert evidence … She does not otherwise engage directly with the evidence of the experts and would be under the same disadvantage as Dove J in Alam in doing so.
32. In any event, I consider that DK and RK (2) is authoritative in this regard. The evidence relied upon by SSHD in HA’s case was sufficient to discharge the evidential burden, and there is a case for HA to answer.
The Court of appeal unanimously held that the decision of the UT should be set aside, and the case remitted for rehearing before a new UT Judge. Notably, the grounds of appeal to be remitted were recast by HA’s counsel after the Court of Appeal announced the outcome of the appeal. Namely, in summary, that it was arguable that the FTT fell into error of law: (i) by requiring HA to prove that her TOEIC test was not invalidated by the use of a proxy and thereby effectively reversed the burden of proof and/or applied the wrong test: and (ii) made an inadequate assessment and analysis of HA’s evidence, which undermined the SSHD’s case. Macur LJ held that:
34. … The argument that appeared at paragraph 11 of the original grounds of appeal, namely that the FTJ had erred in giving little evidential weight to the opinions and recommendations of the APPG report, is no longer available to HA in the light of our decision.
Overall, the Court of Appeal rejected HA’s initial suggestion that the UT decision could be “upheld” on alternative grounds, and that it should remake the decision accordingly. But Macur LJ regarded that would be an unsatisfactory exercise in the circumstances of this case. She said the FTT itself granted permission to appeal on the basis of an apparent misapprehension by the FTTJ concerning HA’s qualifications. Whether that matter was of sufficient significance to amount an error of law requiring the UT to intervene had never been determined, as the UTJ dealt only with the issue of the APPG report. Macur LJ said that she now entitled to that determination—which is properly a matter for the specialist immigration tribunal.
Needless to say, this judgment is a serious set back to persons involved in the TOEIC saga as the report of the APPG attracts little evidential weight rather than significant evidential weight.
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