Secretary of State for the Home Department v Shehzad & Anor

In an immigration decision based on deception, the Secretary of State bears an initial evidential burden. Generic evidence explaining the detection process, combined with evidence that the individual’s test was categorised as invalid because of a voice match, can discharge that modest burden. The individual must then raise a plausible innocent explanation, while the ultimate legal burden remains on the Secretary of State.

An in-country appeal under section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 requires an asylum or human rights claim made before the appeal is instituted. A claim first advanced in the grounds of appeal is insufficient. A preliminary decision accepting jurisdiction does not prevent the jurisdictional issue being determined through the ordinary appellate process.

The Secretary of State appealed against two Upper Tribunal decisions affirming First-tier Tribunal decisions which had allowed appeals by students accused of using proxy test-takers in English-language examinations. The Secretary of State relied on generic evidence explaining the testing organisation’s fraud-detection process and on records relating to the respondents’ results.

In Mr Chowdhury’s out-of-country appeal, the tribunals held that the evidence did not discharge the initial evidential burden of proving deception. In Mr Shehzad’s case, the tribunals accepted an in-country appeal because he raised a human rights claim in his grounds of appeal.

The central questions were whether the tribunals misunderstood the evidence concerning invalidated tests and whether a human rights claim first made in grounds of appeal engaged section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002.

1. Both appeals were allowed. Mr Shehzad’s case ended because the tribunals lacked jurisdiction. Mr Chowdhury’s case was remitted to the Upper Tribunal for reconsideration of all the evidence.

2. The initial burden on the Secretary of State was evidential and involved a comparatively modest threshold. The evidence explaining the testing organisation’s three-stage voice-matching process, together with records identifying Mr Chowdhury’s test as invalid, was sufficient to shift that burden. This did not determine the ultimate reliability of the evidence or discharge the Secretary of State’s continuing legal burden to prove deception on the balance of probabilities. The sufficiency of any innocent explanation was fact-sensitive.

3. The First-tier Tribunal materially misunderstood the distinction between an invalid result and a questionable result. An invalid result signified a voice match with a test taken under another name, whereas a questionable classification could arise from test-centre irregularities without deception. The Upper Tribunal failed to correct that error. Mr Chowdhury’s educational qualifications and other evidence therefore remained to be assessed on remittal.

4. Section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 required an asylum or human rights claim to be made before the institution of the appeal. Mr Shehzad first raised human rights in his grounds of appeal. He consequently had no in-country right of appeal and the tribunals lacked jurisdiction.

5. The immigration decision took effect upon service, not when the refusal letter was drafted. Rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 concerned a refusal to accept a notice of appeal and did not apply where the tribunal had accepted the appeal. A tribunal’s acceptance of jurisdiction could be challenged through the available appellate structure; separate judicial-review proceedings were unnecessary.

Beatson LJ gave the judgment. King and Black LJJ agreed.

1. Court of Appeal: Allowed both appeals. It held that the tribunals lacked jurisdiction in Mr Shehzad’s case and remitted Mr Chowdhury’s case to the Upper Tribunal.
2. Upper Tribunal: Decisions promulgated on 3 January and 18 May 2015 affirmed the respective First-tier Tribunal decisions.
3. First-tier Tribunal: Decisions dated 21 August 2014 and 28 January 2015 allowed the respondents’ appeals against the Secretary of State’s decisions.