Application refused because of “fraudulent” English language test to return to tribunal after unsuccessful appeal

The Court of Appeal has dismissed an appeal in a case involving a refusal based on an allegedly fraudulently obtained English language test certificate. The case is Chowdhury v Secretary of State for the Home Department [2025] EWCA Civ 36.

The appellant entered the UK as a Tier 4 (General) Student visa in September 2011 and successfully applied for further leave on that basis in July 2013. A later application was refused, the refusal letter stating that he had made false representations in the July 2013 application by relying on a fraudulently obtained Test of English for International Communication (“TOEIC”) certificate.

The First-tier Tribunal judge concluded that the appellant was a credible witness and allowed his appeal. The Upper Tribunal granted permission to appeal to the Home Secretary on the ground that the failure to follow DK and RK (ETS: SSHD evidence, proof) India (No 2) [2022] UKUT 112 (IAC) was a material error. The Upper Tribunal found that the First-tier Tribunal had “failed to substantiate its finding” that the appellant had not cheated and that “due regard had not been had to the guidance” in DK and RK. The case was remitted to the First-tier Tribunal.

The appellant appealed the decision to the Upper Tribunal on the ground that there was no error of law in the First-tier Tribunal’s decision. The Court of Appeal held the following:

56. In my judgment, the FTT fell into legal error in two fundamental respects.

57. The first error is that the reasoning at paras 7-8 is confused as to the burden of proof. The reasoning of the FTT does not appear to 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 it 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.

58. The second fundamental error into which the FTT Judge fell is that there was a failure to engage with the reasoning of the UT in DK and RK at all. It is not simply that the decision is not referred to, because that would not by itself demonstrate that the FTT had had no regard to it. The problem is a more fundamental one: the reasoning of the FTT is on its face inconsistent with that of the UT in DK and RK, for example on the sufficiency of the generic evidence adduced by the Respondent in cases of this kind, and in relation to the question of whether an appellant may have acted dishonestly even though his English was of sufficient quality that he did not need to have a proxy attend the test centre for him. As UT Judge Perkins concluded in the present case, there may be good reasons on the particular facts of this case why the Appellant is nevertheless to be believed but the FTT had to grapple with the implications of the UT judgment in DK and RK. Rather than grappling with it, it simply ignored it. That was an error of law.

The case will now return to the First-tier Tribunal for a new decision.