Abbas, R (On the Application Of) v Secretary of State for the Home Department

In a challenge to immigration decisions based on alleged TOEIC fraud, the Secretary of State bears the legal burden of proving deception. The court applies one civil standard of proof, while allowing the seriousness of the consequences to inform the strength and quality of evidence required. A staged evidential approach may require the Secretary of State first to raise a credible issue of fraud, the claimant then to provide a minimally plausible innocent explanation, and the Secretary of State finally to prove that explanation false on the balance of probabilities.

For Nationality Immigration and Asylum Act 2012, section 76(2), deception need not occur through a direct fraudulent act in the application for indefinite leave. An application implicitly asserts that the qualifying period of lawful residence was lawfully obtained. If that assertion is false because earlier leave was obtained by deception, the indefinite leave may itself have been obtained by deception.

The claimant, a Pakistani citizen, challenged the revocation of his indefinite leave to remain and the refusal of his naturalisation application. The Secretary of State alleged that he had used a fraudulently obtained TOEIC certificate in 2012 when applying for leave as the spouse of a British citizen. Indefinite leave was later granted on the basis of two years’ qualifying residence, and naturalisation was refused on good-character grounds.

The court had to determine whether the claimant had knowingly used a fraudulent certificate and whether section 76(2) permitted revocation where the deception occurred in an earlier application but was implicit in the later application.

1. Outcome. The judicial review claim was dismissed. The evidence established on the balance of probabilities that the claimant had knowingly used a fraudulent TOEIC certificate. His naturalisation application was therefore properly refused because he was not of good character.
2. The legal burden of proving deception remained on the Secretary of State. The applicable standard was the civil standard. The seriousness of the consequences did not create a different standard, but required close attention to the strength and quality of the evidence. The court accepted the staged approach: sufficient evidence first had to raise the issue of fraud; the claimant then had to advance an innocent explanation meeting a minimum level of plausibility; and, if that occurred, the Secretary of State had to show on the balance of probabilities that the explanation should be rejected.
3. The ETS identification of the claimant’s test as invalid was not determinative. However, the expert evidence, statistical evidence concerning Thames Education Centre, the absence of apparently genuine candidates in the relevant session, and the claimant’s unconvincing evidence together established the case.
4. Section 76(2) required the indefinite leave itself to have been obtained by deception. It was insufficient merely that a necessary building block of the application had earlier been obtained by deception. However, an application for indefinite leave implicitly asserted that the applicant satisfied the requirement of lawful qualifying residence. In light of the earlier fraudulent TOEIC certificate, that implied assertion was false. The indefinite leave was therefore obtained by deception.
5. The court applied the general principle concerning deception in Durojaiye v SSHD, despite that case concerning a different statutory provision, and considered the analogous approach in DPP v Ray.