Amanat Hussain Chowdhury v Secretary Of State for The Home Department

An allegation of dishonesty does not transfer the legal burden of proof from the Secretary of State. The burden remains on the Secretary of State throughout, while the appellant bears an evidential burden to respond to prima facie evidence. In TOEIC cases, the guidance in DK and RK is not conclusive, because each case remains fact-sensitive. However, a tribunal departing from that guidance must engage with its reasoning and explain its different conclusion. Confusing the legal and evidential burdens, or failing to grapple with material guidance, may amount to an error of law permitting the Upper Tribunal to set aside and remit the decision.

The Secretary of State refused the appellant’s application for leave to remain after finding that he had relied on a dishonestly obtained TOEIC certificate. The First-tier Tribunal accepted his evidence that he had taken the test himself and allowed the appeal. The Upper Tribunal set aside that decision and remitted the appeal for a fresh hearing, finding that the First-tier Tribunal had inadequately reasoned its conclusions and had failed to engage with the guidance in DK and RK.

The appellant appealed to the Court of Appeal, challenging the existence of any error of law and the Upper Tribunal’s intervention. The central issues were the correct allocation of legal and evidential burdens in dishonesty allegations and the extent to which the First-tier Tribunal had to address relevant tribunal guidance.

Appeal dismissed. The Court upheld the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law and that the matter should be remitted for factual findings on a correct legal basis.

1. The legal or persuasive burden of proving dishonesty remained on the Secretary of State throughout. The appellant had an evidential burden to respond to prima facie evidence, but the legal burden did not move between the parties. The three-stage analysis described in Ullah required the Secretary of State to adduce prima facie evidence, the appellant to raise a minimally plausible innocent explanation, and the Secretary of State then to establish that the explanation should be rejected on the balance of probabilities: [2024] EWCA Civ 201.
2. The guidance in DK and RK was important but not conclusive or determinative. TOEIC appeals remained fact-sensitive. Generic ETS evidence could require a response, but the tribunal still had to assess the individual evidence and explanation. A First-tier Tribunal was not required simply to follow DK and RK, but it had to grapple with its reasoning and explain any departure. The Court noted its subsequent treatment as having precedential significance in Akter: [2022] UKUT 112 (IAC); [2022] EWCA Civ 741.
3. Under sections 11(1) and 12(1) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal’s jurisdiction was confined to errors of law. Since that question had one correct answer, the Court of Appeal had to determine for itself whether the First-tier Tribunal had erred, rather than ask only whether the Upper Tribunal was entitled to interfere: [2024] EWCA Civ 74.
4. The First-tier Tribunal had made two fundamental errors. It confused the legal and evidential burdens by stating that the burden moved between the parties. It also failed to engage with the main principles in DK and RK, despite reasoning inconsistent with that decision on the sufficiency of generic evidence and the significance of English-language ability. The Upper Tribunal was therefore correct to set aside the decision and remit the appeal rather than substitute its own factual findings.

• Court of Appeal (Civil Division): In [2025] EWCA Civ 36, dismissed the appeal and upheld the Upper Tribunal’s decision to remit the matter.
• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision as legally erroneous and remitted the appeal for a fresh hearing.
• First-tier Tribunal (Immigration and Asylum Chamber): Allowed the appellant’s appeal after finding that he had taken the TOEIC test himself.