Secretary of State for the Home Department v MD Shohel Khan & Anor

A claimant relying on a purported Cambridge College of Learning postgraduate certificate in business management or IT must provide cogent evidence that it was genuinely obtained. Each case requires individual assessment. However, the credible evidence examined in earlier litigation was strongly indicative that CCOL did not teach, examine or award such postgraduate certificates.

Under the Immigration Rules, paragraph 322(1A) requires refusal where false representations, documents or information are submitted in relation to the application, whether or not material or known to the applicant. Paragraph 322(2) ordinarily supports refusal where false representations were used to obtain earlier leave. The Secretary of State bears the burden of proving those provisions apply, on the balance of probabilities.

The respondents, Bangladeshi husband and wife, applied for leave respectively as a Tier 1 (General) Migrant and his dependant. The Secretary of State refused the applications. She concluded that the first respondent had relied on a bogus CCOL postgraduate certificate to obtain earlier post-study leave and had falsely denied prior deception in his current application.

An Immigration Judge allowed the appeals. She found that the first respondent had genuinely studied for a postgraduate certificate, rather than a diploma, and had not used deception. The Secretary of State appealed. Permission was granted because the judge had not adequately addressed the evidence considered in NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031.

The Upper Tribunal had to decide whether the First-tier Tribunal had erred in law and, on remaking the appeals, whether paragraphs 322(1A) and 322(2) of the Immigration Rules applied.

1. The Secretary of State’s appeal was allowed. The Immigration Judge’s determination contained a material error of law and was set aside. The Upper Tribunal remade the decisions by dismissing both respondents’ appeals under the Immigration Rules.

2. The Immigration Judge gave legally inadequate reasons for accepting that the first respondent had genuinely studied for and obtained a CCOL postgraduate certificate in business management. She had failed to confront the extensive credible evidence recorded in NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031. That evidence did not support the existence of CCOL-taught and CCOL-awarded postgraduate courses in business management, whether described as certificates or diplomas. It also conflicted with the certificate’s assertion that the respondent had satisfied a CCOL board of examiners.

3. On remaking the decision, the Tribunal held that the first respondent bore the burden of showing that he met the substantive points-based requirements. The Secretary of State bore the burden of proving, on the balance of probabilities, that the refusal grounds in paragraphs 322(1A) and 322(2) applied.

4. The Secretary of State discharged that burden. The first respondent’s account was rejected as dishonest. His evidence conflicted with the credible evidence in NA and Others, he retained no course materials, and his written case repeatedly referred to a postgraduate diploma despite his later attempt to distinguish a certificate from a diploma. He had falsely represented in his earlier application that he had obtained a genuine CCOL qualification and falsely denied previous deception in his current application.

5. Paragraph 322(1A), which is mandatory, therefore required refusal. Paragraph 322(2), which is discretionary, was also made out; there was no reason to exercise the discretion differently. The dependant’s application was properly refused under paragraph 319C(b).

6. More generally, although evidence must be assessed individually, a person relying on a purported CCOL postgraduate certificate in business management or IT must adduce cogent evidence of its genuineness. The proper approach to the earlier determination is addressed in TR (CCOL Cases) Pakistan [2011] UKUT 33 (IAC), paras 32–40.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the Immigration Judge’s determination for error of law, and remade the decisions by dismissing the respondents’ appeals.

• First-tier Tribunal: On 1 December 2010, an Immigration Judge allowed the first respondent’s appeal and was treated as having allowed the dependant spouse’s appeal. Permission to appeal was granted on 18 January 2011.