Tribunal decisions

The decision

ASYLUM AND IMMIGRATION TRIBUNAL
EB (fresh evidence – fraud – directions) Ghana [2005] UKAIT 00131

THE IMMIGRATION ACTS

Heard at: Field House
On 8 September 2005
Determination Promulgated
20 September 2005
………………………………………

Before

Mr G Warr, Senior Immigration Judge
Mr T B Davey
Mrs S I Hewitt

Between

Appellant
And
Entry Clearance Officer – Accra

Respondent

Representation:

For the appellant: None
For the respondent: Mr P Deller, Home Office Presenting Officer.

Fresh evidence may be admitted in cases of fraud. Directions should not be given unless needed to give effect to a determination.

DETERMINATION AND REASONS

1. On 13 April 2004 an Adjudicator (Mr J F Pullig) allowed the appeal of a citizen of Ghana against the decision of the Entry Clearance Officer to refuse his application for entry clearance as a student. The Adjudicator gave directions for an entry clearance to be issued forthwith. Mr Deller submits that directions should not have been made and he is content to limit the appeal to the question of directions rather than the substantive appeal.

2. The appellant was not represented before us. His advisers, Afrifa & Partners, wrote to the Tribunal on 5 August 2005 stating that the appellant would not be represented at the hearing on 8 September 2005. Notice of the proceedings had also been sent to the appellant's sponsor, the appellant's stepfather, who is a partner in the firm representing the appellant.

3. In the absence of any application to adjourn the proceedings, the Tribunal considered that notice of proceedings had been properly served, and decided to proceed.

4. The appellant had applied for an entry clearance to enable him to study at the Jeff Wooller College. The application was refused for various reasons, the material one so far as these proceedings are concerned is as follows:

"The cost of your tuition, maintenance and accommodation is to be borne by your father. You have produced a bank statement in his name to support your application. However, the evidence you have submitted of finances is unsatisfactory and I am not therefore satisfied that you or your sponsor will be able to meet the cost of your education or of your maintenance and accommodation in the United Kingdom. Even if I were so satisfied funding your education will impose an additional financial burden upon them and I am not satisfied that this increased financial outlay is commensurate with their economic circumstances and that such funds will actually be available to you in the United Kingdom."

Among the documents produced to the Adjudicator was a letter from the bank of the appellant's father dated 24 February 2004 enclosing bank statements "showing a somewhat increased amount standing to the credit of his bank. These bank statements run from March 2003 through to February 2004 and the build up in the account is consistent with banking transactions shown in the earlier bank statement produced to the Entry Clearance Officer but also shows an increase in activity and the amount of money passing through the account."

5. The Adjudicator records in paragraph 10 of his determination that he was satisfied "that within the family as at the date of decision there was adequate, and indeed more than adequate, funds available to the appellant for the purposes of his studies.”

6. The Adjudicator, being satisfied that the appellant complied with all aspects of the immigration rules, allowed the appeal and gave the directions reconsideration of which is sought by the Entry Clearance Officer.

7. The Adjudicator expressed himself in fairly strong terms in the determination about the respondent and the decision making process. In the light of these comments the file was reviewed at a senior level. The grounds of application read in part as follows:

"3. The visa section at Accra constantly updates itself regarding the latest trends and changes in local conditions to assist in assessing visa applications. It is a fact that bogus bank statements support a large number of applications for visas in Accra. The styles and methods of forgery used in bank statements are constantly evolving and improving and there is sometimes a delay before certain types of forgeries are finally identified. In addition, different banks are targeted by forgers at different times. In a recent exercise, all the bank statements submitted on one day in support of applications (a sample of 500) were referred to the relevant banks for verification. No less than 38% were found to be forged. We work closely with all the major banks in Ghana. They supply us with genuine samples of statements and verify statements for us. Our knowledge of forgery and our detection techniques evolves and improves all the time.

4. In recent months, forgers have focussed on statements purportedly from Rural Banks. For a considerable period it has proved very difficult to get statements from such banks verified. When we did write to rural banks asking them to verify statements, we almost invariably received a reply to the effect that the statement was genuine. Since 38% of the statements for the major banks are declared to be forgeries by them, it did not seem credible that 100% of rural bank statements should be genuine. In addition, it was noted that a very high proportion of visa applicants submitted rural bank statements in support of their applications. Most of the rural banks are very small operations with just one office and a small 'catchment area'. The number of customers they have is limited yet the number of statements submitted from them was on a par with the major high street banks like Barclays and Standard Chartered. The number of rural bank statements was out of all proportion to the number of persons who genuinely hold accounts with rural banks. Most of the suspect forged statements had very high balances. It was not felt to be credible that someone who genuinely had the equivalent of thousands of pounds in Cedis would lodge them all with an obscure rural bank in a current account paying no interest. In my experience, well-to-do people in Ghana invest in high interest bonds and foreign currency accounts. Their current accounts are notable for having a fairly small balance in them – enough for day-to-day purposes and no more. Similarly the balances in these rural statements which were being submitted were unfeasibly high. The minimum legal wage in Ghana is 11,000 Cedis (65p) per day. The vast majority of workers are not even paid that much. The number of people in Ghana with hundreds of millions of Cedis in their bank account is very small, yet so many visa applicants appeared to have someone willing to sponsor them with these apparently enormous amounts of money available to spend on sending them abroad.

5. As a result of the marked increase in rural bank statements seen, we instigated discussions with the Bank of Ghana, which controls the activities of all banks in Ghana. They shared our concern and immediately began investigating a number of rural banks. Within one month, they had identified a corrupt official at one of the banks who had been issuing bogus bank statements on official paper for a fee and he was dismissed. The number of applications bearing statements from that particular bank has now fallen to almost zero.

6. Following our discussions with the Bank of Ghana, we now refer rural bank statements to the ARB Apex Bank Ltd. This is a clearing bank, which oversees the activities of all the rural banks in Ghana. It in turn is under the control of the Bank of Ghana. ARB Apex Bank does not act as a bank itself. It is a respected body, which also produces and prints paying in books and chequebooks. Since we have begun sending rural bank statements to ARB Apex for verification, we have found that over 95% of rural bank statements submitted to this office are forged.

7. On examining the file, I noted that the rural bank statement submitted in the name of NB, said to be the appellant's father, and purporting to have been issued by the Atwima Mponua Rural Bank Ltd, Bantama appeared to be very similar to a number of statements which had been declared forged by ARB Apex.

8. In view of my doubts, I had the statement sent to ARB Apex Bank with the request that they examine it and check the details given against their records. A reply was received from the bank on 23 June 2004. This states that the statement is a fake.

9. I submit that this new information, which neither the ECO nor the Adjudicator would have been aware of, indicates that issue of a visa to the appellant is not now appropriate. Not only am I not satisfied that the appellant has sufficient funds for his proposed studies without working or recourse to public funds, but his credibility is severely damaged by having submitted a bogus document with his application. I am not satisfied as to the true nature and purpose of his application and I am not satisfied that he is a genuine student.

10. In view of the directions and departmental guidelines in Diplomatic Service Procedures Volume 1 General Instructions chapter 27.11.i the ECO is not able to consider the application further. I considered that, had the Adjudicator known that the appellant had presented forged documentation regarding finance, he would not have allowed the appeal and would not have directed that the visa be issued.

11. I respectfully request that the Tribunal consider this appeal out of time. I apologise for the delay in submitting the out of time request but it was not apparent until recently that there were prima facie grounds for lodging such an appeal.

12. I submit that this appeal was not a suitable case for the Adjudicator to direct that the visa be issued. The appellant sought a visa to commence studies in August 2003, but the determination was promulgated 8 months after the application date. The making of directions prevented the ECO from considering any changes in the appellant's circumstances or any material deception, which had come to light since the decision. We are unable even to ask the appellant to provide evidence that he is enrolled on a course. This creates difficulties when trying to establish what period of validity the visa should have, this being essential information now that visas are also leave to enter.

13. I respectfully request that this appeal for consideration out of time by the Tribunal be allowed. If the Tribunal does not consider it appropriate to allow the substance of the appeal, I request that the Tribunal allows my appeal against the Adjudicator's directions, to enable the ECO to satisfy himself that the requirements of the Immigration Rules are met with regard to the funds available for the studies."

8. As we have made clear, all that Mr Deller sought was the removal of the directions rather than a reversal of the Adjudicator's decision as a whole. Mr Deller submitted that directions were in any event inappropriate given the passage of time. The decision appealed from was dated 24 July 2003: it would be necessary for the Entry Clearance Officer to have regard to any change of circumstances that might have taken place in the intervening period. Mr Deller submitted that directions might be appropriate in certain cases where the issues were limited, for example where the only issue was whether the parties were married or not and where an entry clearance would flow almost automatically from a decision. He requested us to admit the fresh evidence and to cancel the directions. He referred us to Cabo Verde [2004] EWCA Civ 1726 by way of an example of facts emerging after a decision.

9. At the conclusion the submissions we reserved our decision. It is clear that a party may appeal against the issuing of directions. Under Section 87 of the Nationality, Immigration and Asylum Act 2002 as amended by the 2004 Act it is provided (see Section 87(4)) that a direction made "shall be treated as part of the Tribunal's decision on the appeal for purposes of section 103A". The Tribunal held that the parties could appeal specifically against the terms of a direction in LS (post-decision evidence;direction; appealability) Gambia [2005] UKAIT 00085. This case concerned the appeal provisions prior to their amendment by the 2004 Act but there would appear to be no reason to reach a different conclusion in reconsideration proceedings. Under Section 103A a party to an appeal may apply "on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider it decision on the appeal". It is first necessary to identify a material error of law – see rule 31(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

10. Mr Deller submits that the making of a direction in this case was an error of law. A direction should only be given for the purpose of giving effect to the decision under appeal – see Section 87(1) of the 2002 Act, as amended. Circumstances would inevitably have changed since the date on which the Entry Clearance Officer had considered the matter and that was of course the relevant date for the Adjudicator to consider – see Section 85(5) of the 2002 Act. This point does not depend on the admission of fresh evidence.

11. We agree with Mr Deller's submission that it was inappropriate to issue directions in this case. Directions should only be issued to give effect to a determination: see MG (Visit appeal – directions.) Jamaica [2004] UKIAT 00140. We find that the making of directions was an error of law in the circumstances.

12. Once an error of law has been established the Tribunal may admit further evidence. The admissibility of new evidence is normally exercised subject to Ladd v Marshall principles "which may be departed from in exceptional circumstances where the interest of justice requires" – see E & R v Secretary of State [2004] INLR 268 at paragraph 91.

13. In this case the appellant's father wrote a letter on 10 July 2oo3 to the respondent in support of the application stating:

"I am sponsoring the entire cost of his education, air ticket and other logistic [sic] that will make his stay in the UK comfortable for his study period. I entrust my confidence in my son to return to Ghana after his course of study.

Please find attached my bank statement in support of his visa application for your attention. Thank you in advance for your kind assistance."

14. On 21 June 2004 it was confirmed by the ARB Apex Bank Ltd. that this statement was fake. This document was received by the respondent on 23 June 2004. There has been no response from the representatives to the suggestion made in the grounds of appeal about the falsity of the document – notice of the allegation had been sent to the representatives as long ago as 18 November 2004. In the premises we are satisfied that the allegation of forgery is established to the required high standard.

15. In the light of the material before it the Tribunal is satisfied that it has been established that a material deception was practiced on the Entry Clearance Officer. As the grounds of appeal made clear it is difficult to keep up with the evolving fraudulent practices that occur in applications of this kind. In the premises it is appropriate to accept this new evidence. No representations have been made about its reception nor is it challenged in any way. We are quite satisfied that the Adjudicator would not have found as he did had he had this material before him. In particular, in paragraph 7 of his determination, he would not have commented as he did about the bank statements submitted by the appellant's father. We should perhaps mention that the adjudicator saw fit to express himself in very strong language about what he saw as deficiencies in the overseas post concerned. While it may be that some measure of criticism is in some instances appropriate, this case highlights the need for caution. Ideally decision makers should confine their attentions to the facts and matters in issue and go no further than is strictly necessary when drawing attention to any shortcomings they may perceive in the way a case was handled. Further, while there was no contradictor in this case, concerns have been raised about documentation presented (apparently not on an isolated basis) by or on behalf of applicants for entry clearances in Ghana. Where appeals arise from refusals of these applications, immigration judges will of course need to consider each case on its merits, but careful scrutiny may well be deemed appropriate (particularly in the case of documention purportedly emanating from rural banks) until these concerns are resolved.

16. Although it is not necessary for us to reach a concluded view on this point, we should consider the question that might have arisen had the directions not been made and if we had been invited to reverse the decision of the Adjudicator. In E & R v Secretary of State [2004] Q.B. 1044 [2004] INLR 268 at paragraph 71 it was submitted on behalf of the Secretary of State that there were established exceptions to the Ladd v Marshall principles. Reference was made to R v Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584. The last of the three named exceptions was "evidence to show misconduct (such as bias or fraud) by the Tribunal or parties before it". Although the appellant submitted that the approach in ex parte Powis was too strict there is nothing to indicate any disagreement with the suggestion that evidence of misconduct would not be admissible. The admission of such evidence is no doubt on the principle that fraud unravels everything – see, for example, Al – Mehdawi [1990] 1 A.C. 876 at 895 [1990] Imm AR 140 at 144. In Cabo Verde [2004] EWCA Civ 1726 the Court of Appeal had to consider an asylum appeal where fresh evidence tended to show that the appellant was not in Angola being detained and tortured as he claimed but engaged in robbery and conspiracy to rob in Portugal. The Court decided to admit the evidence on the basis set out in E & R and remitted the matter to the Immigration Appeal Tribunal stating at paragraph 19:

“There is in this case material which shows that the factual basis upon which the Tribunal proceeded was, through no fault of its own, simply wrong, in that the tribunal were unaware of the involvement of the Portuguese authorities in investigating the affairs of Mr Cabo-Verde.”

The Court of Appeal emphasised that there was no application before it to reverse the Tribunal’s decision on the ground of fraud. It was submitted on behalf of the appellant that the particulars of the fraud were not established by strict proof because they depended upon allegations. The Court of Appeal drew a distinction between cases where it was necessary to set aside a decision of a court of collateral authority and appeals. In challenges to court decisions the fraud itself had to be proved before the court could proceed. In the appeal of Cabo Verde “all that has to be established is that relevant evidence was not before the lower tribunal, as in E & R. That, in my view is plainly established. It would be a sorry day if it were not possible now to revisit the matter in the light of the full facts and allegations as they are now known.”

17. It would be remarkable if the Tribunal could not take into account the fresh evidence. A party who conceals the truth and puts forward a false case cannot be heard to complain if the falsity is discovered after the hearing. Accordingly, if no directions had been made, we would not have been inhibited in admitting the new evidence on the authority of E & R, it being established by this evidence (which has not been the subject of any challenge by the appellant) that fraud was practised and the adjudicator deceived. We would apprehend that in such circumstances the result would be that the adjudicator’s decision would be reversed given that the allegations made in this case have not been rebutted. Although a theoretical possibility, we cannot imagine any adjudicator allowing an appeal where an uncontested fraud on a matter central to the decision has been perpetrated. Where the facts were contested, the issue would have to be resolved by a further hearing.

18. We are not, however, invited to reverse the adjudicator’s decision in this case. We hold, therefore, that the decision of the Adjudicator is vitiated (insofar as he made directions) by a material error of law. Accordingly, it is appropriate simply to order that the appeal should be allowed without any directions.

19. The following decision is accordingly substituted: appeal allowed.

G Warr
Senior Immigration Judge

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