Table Of Contents
- The Case
- The First Tier Tribunal (Immigration and Asylum Chamber) Decision
- Appeal to the Court of Appeal
- Judgment by the Court of Appeal
In a significant case, the Court of Appeal (the highest court within the Senior Courts of England and Wales) civil division handed over a judgment on 23 January where the court dismissed an appeal by Amanat Hussain Chowdhury. The appeal in Chowdhury v Secretary of State for the Home Department [2025] EWCA Civ 36 (a citizen of Bangladesh) was against the refusal of his visa application by the Secretary of State for the Home Department. The secretary of state had refused the visa application for further leave to remain on the grounds of allegedly obtaining an English language test certificate dishonestly.
The Case
Mr. Chowdhury entered the UK on a Tier 4 student visa in September 2011. After staying in the UK on this visa, he later in July 2013 applied for further leave to remain. However, this time his application was refused by the Secretary of State. The refusal letter stated that the applicant made false representations in the July 2013 application, where, in order to meet the English language test requirement, he relied on a fraudulently obtained Test of English for International Communication (“TOEIC”) certificate. The applicant denied this allegation and appealed against it in the FTT.
The First Tier Tribunal (Immigration and Asylum Chamber) Decision
The FTT allowed the submission of the appellant’s (Mr. Chowdhury) appeal, citing the appellant as a credible witness. The FTT judge concluded that the claimant had satisfied him and that the appellant sat for the exam himself. The judge also recognized it was for the Secretary of State to prove dishonesty.
However, the Upper Tribunal (UT) judge granted the Home Secretary the right to appeal, setting aside the decision of the FTT. The UT judge cited FTT erred in law, and its decision was not by the guidance provided in the case of DK and RK (ETS: SSHD evidence, proof) India (No 2) [2022] UKUT 112 (IAC). The UT judge sent the case back to FTT for further consideration.
Appeal to the Court of Appeal
The appellant appealed against the decision of the UT in the court of appeal on the ground that the FTT’s decision had no legal errors.
Judgment by the Court of Appeal
The court of appeal found flaws in the FTT decision. In its judgment, the court said:
“FTT did not appreciate the distinction between the legal or persuasive burden of proof and an evidential burden. It is also wrong as a matter of law because FTT states that the burden of proof “moved” as between the Appellant and the Respondent. The correct legal analysis is that the burden of proof on the issue of dishonesty was at all times upon the Respondent, but there was an evidential burden on the Appellant to respond to the prima facie satisfaction of that burden by the Respondent’s evidence”.
The Court of Appeal is also of the view that FTT failed to engage with the reasoning of the UT in DK and RK.
It has upheld the decision of UT on 23 January 2025, and the case will go back to the FTT for a new decision.
Read Other Blogs:
Government Removes Highest Number Of Illegal Migrants In 5 Years