IA006352016

I make no anonymity order neither party requesting the same and there being nothing apparent in the papers or evidence indicating the need for such an order.

On 23 rd September 2014, the Appellant applied for leave to remain as a Tier 2 (General) Migrant. On 14 th January 2016, the application was refused on the basis that there was significant evidence to conclude that her English language certificate was fraudulently obtained using a proxy test taker. Thus, ETS had cancelled the scores from the tests taken on 1 st January 2014 at International School of Business Studies.

The judge found that the evidence was sufficient to shift the evidential burden of proving, to the standard of the balance of probabilities, that she did not cheat, to the Appellant. The judge found that in the absence of any evidence, there being no bundle and the Appellant not giving any evidence and not being tendered for cross-examination, the Appellant had failed to meet the burden upon her, and dismissed the appeal.

Judge Rodger considered the case law of SM and Qadir v SSHD (ETS - evidence - burden of proof) [2016] UKUT 229 (IAC) as well as the earlier case of R (Garvey) v SSHD (ETS - judicial review) (IJR) [2015] UKUT 327 (IAC) , MA (ETS - TOEIC testing) [2016] UKUT 450 (IAC) , Muhandiramge (Section S-LTR1.7) [2015] UKUT 675 (IAC) , as well as SSHD v Shehzad and Chowdhury [2016] EWCA Civ 615 .

On 9 th June 2017 Judge Andrew granted permission on the basis of the ground that the generic statements were not supported by any evidence referring specifically to the Appellant and accordingly there had been no shift of the evidential burden.