KS (India) v The Secretary of State for the Home Department

Permission for a second appeal is available only where the proposed appeal raises an important point of principle or practice, or presents some compelling reason for it to be heard. An attempt to recast disagreement with factual findings, evidential weight or ordinary procedural rulings as a point of principle will not satisfy that test. A tribunal may assess a party’s spoken English from the evidence given at the hearing where that assessment is relevant to an allegation of fraud in an English-language test. The weight given to generic expert evidence is also ordinarily a fact-sensitive matter for the tribunal.

The appellant’s leave to remain was curtailed after the respondent concluded that he had obtained an English-language test certificate through a proxy test-taker. The First-tier Tribunal dismissed his appeal, relying on evidence concerning the testing system and its own assessment that his spoken English was poor. The Upper Tribunal upheld that decision in proceedings bearing reference IA443352014 and refused permission to appeal. Permission was then refused on the papers by Sir Stephen Silber. The appellant renewed his application orally before the Court of Appeal, alleging procedural unfairness, failure to consider evidence, inadequate treatment of an expert report, and impermissible reliance on the judge’s assessment of his English. The central question was whether the proposed second appeal met the applicable statutory test and had any real prospect of success.

1. Application refused. Under the Upper Tribunal to the Court of Appeal Order 2008, permission for a second appeal required an important point of principle or practice, or some compelling reason for the appeal to be heard. No such point or reason was identified. The appellant’s case, at its highest, challenged factual findings that he had cheated. That challenge could not be reshaped into an important point of principle. The procedural and evidential complaints therefore failed the second-appeal test.
2. There was no procedural unfairness in the respondent relying at the hearing on the appellant’s official test results. The appellant was given time to obtain his own copy and make further submissions. The fact that the Upper Tribunal did not expressly refer to every document did not show that it had failed to consider it where the document duplicated material already before the tribunal and the submissions were addressed as necessary.
3. The tribunals had expressly directed themselves to the higher burden of proof applicable to the allegation of fraudulent conduct. The complaint that they had failed to apply that burden was therefore unfounded.
4. The First-tier Tribunal was entitled to give little weight to Dr Harrison’s generic report, particularly because other evidence related specifically to the appellant’s case. The assessment of competing evidence and the weight given to an expert report were factual matters. SM and Qadir [2016] UKUT 00229 (IAC) did not assist the appellant because the different facts in that case did not determine the evaluation required here.
5. The First-tier Tribunal was entitled to assess the quality of the appellant’s spoken English while he gave evidence. His observed performance was capable of corroborating the allegation that somebody else had obtained the perfect test score. There was no principle that a judge could make such an assessment only where the witness was wholly fluent or wholly unable to speak English. The approach was consistent with Majumder v SSHD [2016] EWCA Civ 1167, which recognised that such assessments of factual evidence were matters the Upper Tribunal was entitled to undertake.
6. The renewed application for permission to appeal was accordingly refused.

• Court of Appeal (Civil Division): On 18 April 2018, the oral renewal of the application for permission to bring a second appeal was refused.
• Upper Tribunal (Immigration and Asylum Chamber): The appeal was rejected on 4 January 2016. Permission to appeal was refused on 8 February 2016.
• First-tier Tribunal: The appeal against curtailment of leave to remain was dismissed.