Franz Khalid & Ors v The Secretary of State for the Home Department

Where a college’s electronic records system is detailed, robust and comprehensively records applications, enrolment, attendance and awards, evidence from that system that a person has no record may be cogent evidence that the person did not study there. A claimant absent from those records will ordinarily find it very difficult to establish genuine enrolment.

The absence of the student’s unique data number from purported academic documents is a factor of substantial adverse weight. Under paragraph 322(1A) of the Immigration Rules, the Secretary of State bears the civil burden of proving the mandatory ground of refusal, using evidence of sufficient strength and quality subjected to critical scrutiny.

Three Pakistani appellants applied for leave to remain as Tier 1 (Post-Study Work) Migrants, relying on purported postgraduate diplomas from Ealing, Hammersmith and West London College. Two further appellants applied as the dependants of one of them. The Secretary of State refused the applications on the basis that the qualifications and related documents were false.

A Designated Immigration Judge dismissed the appeals. On reconsideration, the Tribunal found a material error of law, set aside all findings, and directed a fresh hearing. At that hearing the appellants did not attend. The central issues were whether they had genuinely studied at the college, whether the mandatory refusal ground in paragraph 322(1A) of the Immigration Rules was made out, and whether refusal was compatible with article 8.

1. The appeals were dismissed. The respondent proved, on the balance of probabilities, that the three principal appellants had submitted false qualifications and related material in support of their applications.

2. For paragraph 322(1A) of the Immigration Rules, the burden lay on the respondent. The applicable standard was the ordinary civil standard. Given the serious consequences of a Part 9 refusal, the evidence had to be sufficiently strong and of sufficient quality to withstand critical, anxious and heightened scrutiny. That scrutiny did not create a higher standard of proof.

3. The evidence of the college’s witnesses was clear, credible and cogent. Its Centime system created and retained a unique data number for every applicant and recorded enrolment, attendance, assessments and awards. Searches found no record of the three principal appellants, no offer letters and no fee payments. Their inability to produce a data number, coupled with the absence of one from every purported college document and assignment, was strongly adverse.

4. The diplomas, results sheets and letters were not genuine. They contained false or unrecognised signatures, incorrect logos and course details, and dates inconsistent with genuine courses and awards. The coursework lacked the identifiers, cover sheets and marking expected of work submitted to the college. The Tribunal found that the appellants had never enrolled or studied there and knowingly relied on false documents and false coursework.

5. Paragraph 322(1A) was therefore made out. No points could be awarded under the relevant requirements for the principal appellants, and the dependent appellants could not meet the applicable dependency requirements. Any interference with private life under article 8 was proportionate. The false representations carried substantial adverse weight, the family would be removed together, and there was no evidence of obstacles to re-establishment in Pakistan.

• Upper Tribunal (Immigration and Asylum Chamber): Fresh hearing following the setting aside of the earlier determination for material error of law; all appeals dismissed.
• Reconsideration panel: On 16 November 2009, the Tribunal held that the Designated Immigration Judge’s determination contained a material error of law. No findings were preserved and a fresh hearing was required.
• Designated Immigration Judge: The appeals were initially dismissed in a determination promulgated on 14 August 2009.