UI2023001159

Mr Lindsay, on behalf of the Secretary of State, submitted that the error is clearcut and material. On the first point, he submitted that the 2019 determination of FtTJ Louveaux was very much material as that judge found against the Claimant on the issue of TOIC fraud. Whilst he accepted that Judge Cohen referred in passing to that determination at [3] there was no indication that he was aware of its findings in relation to TOEIC fraud, but rather he refers to it being an application based on family and private life.

Mr Lindsay submitted that FtTJ Cohen erred in applying Devaseelan only to the 2012 determination and not to the 2019 determination of FtTJ Louveaux, which is clearly fatal. In relation to the second ground of challenge, based on [4] of the grounds of appeal, he accepted, having had his attention drawn by Mr Arif Rehman on behalf of the Claimant, that there was a supplementary bundle containing an email from the Claimant's representatives with a letter of authority requesting a copy of the voice recording, so he formally withdrew that ground of appeal.

In relation to the third ground of challenge based on a failure by the FtTJ to take account of the guidance set out in the presidential decision of DK and RK , Mr Lindsay submitted that was also made out, the case law had not been applied or engaged with by the judge, which was a material error.

In response, Mr Rehman drew attention to [11] of the FtTJ's decision and reasons and the fact that the judge had mentioned the principles set out in Devaseelan; that he was aware of his duties and the previous determination and at [9] he considered the Claimant's achievements and his innocent explanation. Mr Rehman submitted that there was evidence in support of the Claimant's achievements and no adverse evidence before the First-tier Tribunal Judge.

I indicated at the hearing that I found that First-tier Tribunal Cohen had made material errors of law in failing to take account of the substance of the decision and reasons of FtTJ Louveaux in 2019 and that further reasons would following in writing.

Whilst the Claimant gave evidence before the FtT he was not subjected to cross-examination due to the fact that the SSHD was not represented, albeit confusingly the FtTJ refers at [5] to hearing submissions from both parties.

At [11] the FtTJ acknowledged that the Claimant had a previous appeal in respect of "these matters" which was dismissed in 2012 leading to the Claimant becoming appeal rights exhausted in 2013. He noted that there were matters before him which were not before the previous Immigration Judge and this was prior to the raft of ETS/TOEIC cases that had not been considered or decided and consequently he was entitled to deviate from those findings. There is no reference at all to the decision and reasons of FtTJ Louveaux dated 22 October 2019 and it is clear that the FtTJ simply did not take these findings into consideration when determining the appeal. This is clearly an error of law given the materiality of those findings, which concerned the same issue ie whether the Claimant had utilised a proxy with regard to his ETS test.

At [9] the FtTJ states that he has had regard to the most recent case of DK & RK [2022] UKUT 112 IAC but goes on to find that the Claimant acted in a way that would be expected of an innocent individual who had taken the test himself and that the SSHD in failing to address or respond this had failed to meet the burden which had reverted to her and accordingly the appeal should be allowed. I find in allowing the Claimant's appeal that the FtTJ did not implement the guidance set out in DK & RK which is as follows:

The two strands, therefore, amount respectively to the virtual exclusion of suspicion of relevant error by ETS, and the virtual exclusion of motive or opportunity for anybody to arrange for proxy entries to be submitted except the test centres and the candidates working in collusion.

Where the evidence derived from ETS points to a particular test result having been obtained by the input of a person who had undertaken other tests, and if that evidence is uncontradicted by credible evidence, unexplained, and not the subject of any material undermining its effect in the individual case, it is in our judgment amply sufficient to prove that fact on the balance of probabilities.

In these circumstances the real position is that mere assertions of ignorance or honesty by those whose results are identified as obtained by a proxy are very unlikely to prevent the Secretary of State from showing that, on the balance of probabilities, the story shown by the documents is the true one. It will be and remain not merely the probable fact, but the highly probable fact. Any determination of an appeal of this sort must take that into account in assessing whether the respondent has proved the dishonesty on the balance of probabilities."

The decision and reasons of First tier Tribunal Judge Cohen contains material errors of law. I set aside that decision and remit the appeal for a hearing de novo before a different Judge of the First tier Tribunal.