Khan v Secretary of State for the Home Department

On a second-tier appeal, permission should be granted only where the appeal has a real prospect of success and raises an important point of principle or practice, or where there is another compelling reason to hear it. The appeal remains confined to points of law. In English-language testing cases, the Secretary of State bears an initial evidential burden of showing deception. If that burden is discharged, the individual must provide a plausible innocent explanation; the legal burden then returns to the Secretary of State to disprove it. Common-law fairness does not generally require further time where an applicant has been given an adequate opportunity to comply, has not sought a further extension, and has failed to take reasonable steps to overcome an identified practical obstacle. A known withdrawal of sponsorship need not automatically lead to a further opportunity to find an alternative sponsor.

The applicant challenged decisions refusing to vary his leave to remain and directing his removal after concerns arose about the validity of a Test of English for International Communication certificate and the withdrawal of his educational sponsor’s status. The First-tier Tribunal dismissed his appeal. The Upper Tribunal refused permission to appeal that decision. Sir Stephen Silber refused permission to appeal to the Court of Appeal on paper, and the applicant renewed that application orally before the Court of Appeal.

The applicant argued that the TOEIC re-sit requirement was improper, that the decision-making process was unfair, and that he should have been given an opportunity to secure an alternative sponsor. The central issue was whether the proposed second-tier appeal disclosed a real prospect of success, an important point of principle or practice, or a compelling reason for hearing it.

1. Permission refused. The application did not satisfy the second-tier appeal test in CPR 52.7. It had no reasonable prospect of success, raised no important point of principle or practice, and disclosed no compelling reason for an appeal.
2. In ETS cases, the approach identified in Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167 and Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615 requires the Secretary of State first to adduce evidence of deception. If that initial evidential burden is discharged, the burden shifts to the claimant to provide a plausible innocent explanation. If such an explanation is provided, the legal burden returns to the Secretary of State to disprove it. The standard is the balance of probabilities. The applicant’s failure to challenge the underlying finding that his results were vitiated, together with his failure to provide any plausible innocent explanation beyond denial, was fatal to the first ground.
3. The fairness challenge failed. The applicant had been given at least three months to re-sit the TOEIC and had not sought further time or the return of his original passport. The Upper Tribunal was entitled to conclude that he had an adequate opportunity to comply. The Secretary of State’s refusal to exercise discretion in his favour was not Wednesbury unreasonable. The principles in Patel (consideration of Sapkota – unfairness) India [2011] UKUT 00484 (IAC) and Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 00151 (IAC) did not assist him.
4. The sponsorship ground also failed. The applicant knew that Bell’s College was no longer a Tier 4 sponsor and knew of the irregularity concerns. The unfairness identified in Secretary of State for the Home Department v Mohammed, where an applicant was unaware of revocation and should have an opportunity to provide a new CAS, did not arise.
5. The case amounted essentially to disagreement with factual findings and the weight given to the evidence below. Such disagreement did not meet the high threshold for a second appeal. Order: application refused.

1. Court of Appeal (Civil Division) — application for permission to bring a second-tier appeal refused under CPR 52.7.
2. Court of Appeal (on the papers) — Sir Stephen Silber refused permission to appeal on 29 August 2018.
3. Upper Tribunal (Immigration and Asylum Chamber) — permission to appeal the First-tier Tribunal’s decision refused on 20 May 2016.
4. First-tier Tribunal — appeal against the Secretary of State’s refusal to vary leave to remain and decision to remove the applicant dismissed on 25 August 2015.
5. Secretary of State for the Home Department — application to vary leave to remain refused and removal decision issued on 28 October 2014.