IA015812016 & IA015822016

This appeal is brought by the Secretary of State against a decision by Judge of the First-tier Tribunal Debra Clapham. The appellants before the First-tier tribunal is hereinafter referred to as "the claimants".

The claimants are nationals of Pakistan. The first-named claimant appealed to the First-tier Tribunal against refusal of leave as a Tier 4 (General) Student Migrant. The reason for refusal was that the Secretary of State maintained that the first-named claimant had fraudulently obtained a TOEIC certificate from ETS (Educational Testing Service). The second-named claimant appealed against refusal of leave as a dependant.

The Judge of the First-tier Tribunal stated that there was a burden on the Secretary of State to show fraud. In this case, however, the judge found the Secretary of State's concerns were based on "no more than speculation and supposition and there is nothing apart from the generic evidence which has been lodged and the look up tool." The burden of proof was not discharged and the appeal was allowed.

Permission to appeal was granted on the basis that the judge had arguably confused who bore the burden of proof and to what extent. There was an arguable failure to provide sufficient reasoning as to why the first-named claimant's evidence was accepted.

The claimants' rule 24 reply notice, prepared with considerable thoroughness by Mr Bryce, acknowledged that the application by the Secretary of State disclosed error of law by the Judge of the First-tier Tribunal. The claimants sought a remittal of the appeals for a fresh hearing with an amendment to the grounds of appeal to include human rights grounds.