Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04301/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 28 March 2022
On the 05 July 2022

Before

UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

VENU DOMMATI
(Anonymity direction not made)
Respondent

Representation:
For the Appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondent: Mr J Gajjar, Counsel, instructed by Direct Public Access
DECISION AND REASONS
1. This is an appeal brought by the appellant, hereinafter “the Secretary of State”, against the decision of the First-tier Tribunal allowing the appeal of the respondent, hereinafter “the claimant” against the decision of the Secretary of State on 9 March 2020 refusing him leave to remain on human rights grounds.
2. In order to satisfy the requirements of the Rules for further leave to remain the claimant was required to prove a certain level of income. The Secretary of State was not satisfied that the claimant earned the money that he needed to earn in order to satisfy the requirements of the Rules. In particular the Secretary of State was not satisfied that earnings said to come from work done for Vandana Technologies PVT Limited were from genuine employment.
3. The claimant had also relied on a tax return to support his claimed earnings and then said that the return was compiled wrongly and was later amended.
4. It was the Secretary of State’s view that money shown in the claimant’s bank accounts that purported to confirm payments from Vandana Technologies PVT Limited did not remain in the bank account for very long and were in fact loans from associates put into the account to look like income from employment and then removed from the account presumably to repay the creditor. The Secretary of State’s conclusion was that the claimant had been dishonest. The view was explained in a very full Reasons for Refusal Letter that was before the First-tier Tribunal Judge.
5. The First-tier Tribunal Judge did not agree.
6. We make the point immediately that the judge was deciding the case for himself. The appeal was by way of rehearing and not review.
7. The grounds of appeal to the Upper Tribunal are extensive and Ms Chuna made plain near the start of the hearing that she fully appreciated that she had to show us that the decision was unlawful and not how it could have been decided in another way. She accepted that in effect she had to show that the decision was perverse and that she set out to do.
8. Whatever view we come to about the First-tier Tribunal Judge’s decision we make it plain at the outset that it is not a slapdash or overly hasty piece of work. On the face of it, it shows a very thorough and critical approach to the evidence and was produced in, we find, a commendably short time of only ten days after the hearing.
9. We consider in outline what the First-tier Tribunal Judge did.
10. The judge began by setting out the claimant’s immigration history, noting that he is a national of India who was born in 1973 and that he first came to the United Kingdom in 2001.
11. In March 2009 he was given entry clearance to the United Kingdom as a Tier 1 (General) Migrant and entered the United Kingdom pursuant to that clearance in October 2011. His leave was extended until June 2017.
12. On 19 June 2017, shortly before the expiry of his leave, he applied for indefinite leave to remain on the basis of five years’ residence as a Tier 1 (General) Migrant. The application was refused but the decision was remade after judicial review, leading to the decision complained of on 9 March 2020. The judge directed himself appropriately about the burden and standard of proof and the correct approach to human rights appeals. There is no suggestion that he erred in any way in so doing.
13. At about paragraph 28 of the Decision and Reasons the judge set out the strands of evidence that were problematic for the claimant.
14. The difficulty lay in the claimant’s income from self-employment. The judge explained that the claimant said that he worked for Vandana Technologies PVT Limited (“Vandana”) which is a small company within the meaning of the Companies Acts with one director. The judge had a letter from that director, stating that the claimant had been employed as an “IT Project Manager”. The letter said there was a weekly salary of £1,000 paid on a four weekly basis and the letter referred to four payments each of £4,000 paid after tax in 2014. There was an additional payment for £4,500 gross which included a bonus.
15. The judge had seen Vandana’s unaudited accounts.
16. The judge was directed to a document prepared by HMRC which showed that different sums had been declared from working for Vandana. For the tax year ending in 2014 the sum of £16,000 was declared.
17. The judge confirmed that in answer to direct questions the Secretary of State had stated unequivocally that it was her case that the entirety of the Vandana earnings over a period of some years amounting to £26,500 did not reflect income from genuine employment.
18. It was the Secretary of State’s case that the £6,000 that had been paid from Vandana for whatever reason was paid back partly by the claimant making payments to a Ms Ashwini Gaikwad and partly by paying money to his “flatmates” who in turn returned the money to Vandana. Ms Gaikwad is the wife of Vandana’s director Mr Amblekar.
19. The judge considered the claimant’s evidence. The claimant agreed that he had paid money to Ms Gakwad between 2014 and 2016. The money was said to be repayment of a loan she had made to him. The loan was not documented. The appellant and Ms Gaikwad were described as “good friends for many years”. They came from the same part of India and Ms Gaikwad lent the claimant money to help him build a house for himself and his family in India. Ms Gaikwad was only one of many friends from whom the claimant had borrowed money on a similar basis.
20. Ms Gaikwad did not attend the hearing but had sent an e-mail. She said she would be in India and could not attend the hearing but confirmed that she and the claimant were friends and had been family friends for many years.
21. The judge also saw numerous documents relating to the building of a house for the claimant in India.
22. The judge was aware that other sums had been paid by the claimant to Ms Gaikwad but they were not in the period relied on and were not subject to questions by the Presenting Officer.
23. The judge found it “obvious” that the payments in 2014 could not be “recycling payments” because the recycling allegation only related to the Vandana earnings for the tax year ending in 2017. The HMRC records showed that the claimant declared an income of £6,000 from Vandana for the tax year ending in 2017. The judge found the payments in 2014 consistent with the claimant’s evidence that he borrowed about £6,000 in cash from Ms Gaikwad sometime in 2008 and or 2009.
24. At paragraph 44 and 45 of the Decision and Reasons the judge said:
“44. The important findings I make are these. First, there was no evidence before me whatsoever to show that the sums the Appellant paid Ms Gaikwad found their way to Vandana. Ms Gaikwad had no connection with Vandana. The fact that she was married to Mr Amblekar does not constitute a relationship with Vandana. As I say, there was no evidence whatsoever that the sums the appellant paid to Ms Gaikwad found their way to Vandana.
45. Secondly, there was no evidence whatsoever to show that Vandana had treated the payments he made to her as payments to it, whether by way of clandestine repayment for monies paid in respect of bogus employment or otherwise.”
25. At paragraph 46 the judge considered the claimant’s suitability for employment as a project manager with Vandana. The judge noted that he had a supporting letter from Vandana on company notepaper confirming the appointment. The judge had seen unaudited accounts and looked at the website where Vandana identifies several well-known national and international organisations as its clients. He has given pay slips relating to the claimant and, perhaps more importantly, certificates of accreditation issued to the claimant showing he was suited to work as an IT project manager. The judge also saw congratulatory letters sent to the claimant when he passed a relevant trade examination. The judge commented:
“there was nothing to suggest that the [claimant] would be ‘a fish out of water’ in such a position as IT project manager.”
26. The judge then went on to note there was nothing that casted doubt on the integrity of Vandana.
27. The judge also found it relevant that in a year when the claimant was alleged to have “recycled” £6,000 he only needed an additional £3,773.71 to satisfy the Rules. The judge clearly regarded this discrepancy as more helpful to the claimant’s than to the Secretary of State’s version of events.
28. The judge then examined the contention that the claimant paid money to his flatmates which were somehow part of the recycling of that money back to Vandana. The judge noted there was no evidence that the flatmates had any connection whatsoever with Vandana.
29. The judge looked at the evidence of the money paid to flatmates which the claimant said was to share out the cost of living together. It was additionally his case that the cohabitants from time to time lent money to each other. The judge accepted that the payments between flatmates were a consequence of their living together and “for no more sinister purpose”.
30. The judge then considered the Secretary of State’s contention that money paid to a “Mr Devulapally” was also an example of “recycled money.” The judge found nothing to dislodge the claimant’s insistence that any money paid there was all part of the communal living costs.
31. Having analysed these things the judge was very dismissive of the Secretary of State’s case and described the suggestion that £6,000 had been recycled as “unarguable”. Rather the judge found the money came from genuine employment as the claimant said.
32. The judge then went on to consider errors in the claimant’s declared income from self-employment.
33. At paragraph 64 the judge expressly said that he was satisfied that the discrepancy raised a prima facie case of dishonesty. He then looked for the claimant’s explanation.
34. It was the claimant’s case that when he first had to make tax returns he did not take professional advice but listened to a friend. The friend had told him that he could “split” income over different tax years to avoid tax liability and the claimant drew attention to Section 34 of the Taxes Management Act 1970 which, he said, supported his contention. It must be understood this was not an argument about the interpretation of tax law but an assertion that looking at the Act, without the benefit of professional advice, reinforced his view that his friend was truly helping him. Later he came to realise that his friend had advised him wrongly and he took advice from accountants. The judge noted that the claimant’s case was not assisted by the attendance of his friend.
35. After considered everything before him the judge believed the claimant’s story.
36. The judge probably did not need telling but Mr Gajjar, who represented the claimant in the First-tier Tribunal, as well as before us, said that the facts of this case were quite unlike those in Abbasi (rule 43; para 322(5): accountants’ evidence) [2020] UKUT 27 (IAC). Abbasi was decided by the President, the Honourable Mr Justice Lane, sitting with Upper Tribunal Judge Lindsley. The decision points out the incongruity of professional accountants giving thoroughly bad advice and the need for extreme caution when accountants claim to have given such advice without attending to give evidence that can be cross-examined or indicating their insurers have been involved or otherwise behaving as professionals should in the event of such an error. This appeal is not about a professional error. It is about the claimant relying on a friend who was the source of the bad advice. The judge is critical of the claimant in describing his conduct as “foolhardy” but he believed that is what the claimant had done. The judge concluded that the Secretary of State had “entirely failed” to establish dishonesty and went on to allow the appeal.
37. The decision produced a very emphatic application for permission to appeal, signed by someone who is well-known to the Upper Tribunal and respected for his work as a Senior Presenting Officer. Nevertheless we found it hard to discern in the grounds anything that might be characterised properly as an error of law, rather than a disagreement with findings that do not suit the Secretary of State’s case.
38. Ground 3 asserts that it is “improbable” that the claimant’s accountants would have allowed the error to continue over a number of years but that assumes they were aware of the claimant’s true circumstances. We do not see how the point has any merit unless it can be established that the claimant disclosed the true position to them and they acquiesced in his partial disclosure. That is not what is alleged to have happened.
39. At point 4 it is said that it is “straining credibility to find that the [claimant] would prefer the advice of an unqualified friend over the advice of a qualified professional for whose services he was paying.” Those of us who have provided advice to private clients might consider the grounds somewhat optimistic on this point and the argument was not accepted by the First-tier Tribunal Judge.
40. At point 6 it is contended that the Tribunal should have been more concerned that the claimant worked in a low skilled employment in hotels at the same time as he claimed to have the wherewithal to earn £30,000 over a six month period in another job. The problem for the Secretary of State is that the judge was clearly aware of the point. He did not express it in quite the way that it is expressed in the grounds but the judge was looking for confirmation in the evidence that the claimant was up to his job as an IT consultant and we had set out above the passages supporting the judge’s conclusion that he was suitably qualified.
41. The ground then contends that there should have been more documentation from the claimant’s accountants but again that rather assumes the claimant’s accountants were told everything at the appropriate time which is not what the claimant says happened.
42. Paragraphs 10 and 11 in the grounds set out points that may well have been the basis for interest in cross-examination of the claimant but it does not seem to be suggested that these points were raised specifically and ignored by the judge.
43. The grounds also describe the Decision and Reasons is unbalanced and lacked scrutiny.
44. Ms Chuna described point 11 in the grounds as her “key” point. We set it out below:
“It is also submitted that [the claimant] provided contradictory evidence regarding his self-employment. He failed to provide any documents about this during the claims process, claiming that he did not retain any evidence. However, he had sufficient documentation to amend his tax returns for 2011/12 in November 2015. It is submitted that to make these amendments he would have needed to provide N B Accountants evidence of his business activities, which would be in the form of invoices, expense receipts, bank statements to identify the correct figures and where the error had occurred. Further, it is submitted that a qualified accountant would know they are required under HMRC legislation to retain self-employment documents for a minimum of five years from the point of declaration. It is submitted that the fact that the [claimant] (and his accountants) claim to no longer have these documents is not credible and this was overlooked by the Tribunal. Given that this is a legal obligation, it is submitted that this oversight is significant.”
45. Although Mr Gajjar made wholly appropriate and short oral submissions he relied particularly on his Rule 24 Reply dated 11 March 2022. There are certain points here that are particularly attractive. There Mr Gajjar argues against the contention that the claimant had a lowly job in the hotel world. The claimant was a night manager which, Mr Gajjar submitted, was not a lowly job but also there was perfectly sensible evidence accepted by the Tribunal of the claimant’s competence, including his later obtaining a better paid job”.
46. Concerning paragraph 11 which is relied on particularly by Ms Chuna, Mr Gajjar makes the point that:
“The respondent is proceeding on the basis that there was some mistake in the calculation of his income as declared to HMRC. This would be in line with the bulk of 322(5) discrepancy cases. In most cases the explanation has been that “my accountant miscalculated my income when declaring my earnings to HMRC”. In such cases, the raw data would be needed to calculate the correct income. However, by contrast, the [claimant’s] case is that he was fully aware of what was earned in 2011/12 but that he believed this could be split across 6 tax years. This did not require N B Accountants to recalculate his income.
Moreover, the [claimant] had already submitted all the invoices and business income documents to [the Secretary of State] in his LTR application of 2012 without which he would not have been granted the visa. It is also recorded in the GCID notes that it says “YES” to the question “Evidence acceptable”.
47. We agree that point 11 in the grounds is not the good point that it needs to be from the Secretary of State’s point of view unless it is established that the accountants knew the full picture in a timely way and it is not.
48. In reaching our conclusions we do not wish to suggest for a moment that there are no reasons to be concerned about the claimant’s conduct. As the judge was quick to recognise, the “prima facie” case is established but the judge then did what he was required to do which was to then consider what the claimant said and then make findings. We observe that cases that look strong on paper sometimes look very different when the oral evidence is given and this is a case where the judge was clearly impressed by the oral evidence. There is no misdirection of law. The Secretary of State can only succeed if she can make out the contention that the finding is irrational. This cannot be done. The assertions in the grounds are dependent on facts that have not been established.
49. This is a case where the judge looked carefully at the evidence and reached a conclusion that the Secretary of State does not like. It is not an error of law to believe a witness. Neither is it an error of law not to deal with every point that might be raised in grounds of appeal later. We are not satisfied that the judge has overlooked any material point or reached any conclusion that could not be supported on the evidence before him.
50. It follows that we dismiss the appeal against the First-tier Tribunal’s decision.
Jonathan Perkins
Signed

Jonathan Perkins

Judge of the Upper Tribunal
Dated 4 July 2022