Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: UI-2021-001261
HU/08182/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 14th April 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Mr AKO-A
(anonymity direction MADE)
Appellant
and

ENTRY CLEARANCE OFFICER – UKVS SHEFFIELD
Respondent

Representation:
For the Appellant: Mr S Karim, Counsel instructed by Adukus Solicitors
For the Respondent: Miss H Gilmour, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals against the determination of First-tier Tribunal Judge Hobson (referred to as “the judge”) promulgated on 28th October 2021 on the following grounds.
Ground 1
2. The judge had arguably erred in law in her conclusions relating to the appellant’s identity and in the application of paragraph 322(3) of the Rules. The Rules state:
“(3) Failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality save that the document does not need to establish nationality where it was issued by the national authority of a state of which the person is not a national and the person’s statelessness or other status prevents the person from obtaining a document satisfactorily establishing the person’s nationality.”
3. It is clear according to the grounds that the requirement of the appellant was to produce a valid national passport, which he did. That is sufficient for establishing his identity. The respondent had not produced any evidence to show that the passport was a forgery and/or not valid. The burden in this respect fell to the respondent, see JC (Part 9 HC395, burden of proof) China [2007] UKAIT 00027, which emphasised that in relation to all the general grounds contained in Part 9 including paragraph 320(15) the burden of proof rests with the decision-maker to establish any contested precedent fact.
4. The judge failed to appreciate that the burden was on the respondent to prove that the valid passport provided by the competent authority was not in fact valid and was a forgery.
5. In respect of the appellant’s identity the judge failed to have regard to the previous interviews and documents including the detention review which were in the appellant’s current name and identity.
Ground 2
6. In ground 2, in relation to the deception allegation, the judge failed to consider and apply the three-stage test relevant to the deception issue both in terms of paragraph 320(11) of the Rules as well as the suitability provisions of Appendix FM. The relevant legal test was to be found in Muhandiramge (section S-LTR.1.7) [2015] UKUT 675 (IAC) as approved in SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC). SM and Qadir explained that where the Secretary of State alleged that an applicant had practised dishonesty or deception for leave to remain there was burden on the Secretary of State requiring the Secretary of State to produce sufficient evidence to raise the issue as to the existence or non-existence of a fact such as producing the completed application which is prima facie deceitful. The appellant would then be required to satisfy the evidential burden but overall the Secretary of State had the burden to establish on the balance of probabilities that the appellant’s prima facie innocent explanation was rejected.
7. The judge failed to appreciate that the burden on the appellant was an evidential one and, given his consistent interview, his witness statement and the statement of his uncle as well as the court documents, that the threshold was met.
8. The judge failed to apply the correct test and did not refer to the relevant burden and standards applicable in this appeal and a close reading of [26] of the determination appeared to show the judge had placed the burden of proof on the appellant.
9. The judge also failed to appreciate the guidance in AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773. It was arguable that there was a legal error at [26(a)] of the decision where the judge referred to the sponsor’s evidence and made an adverse finding in that regard and used that to essentially find against the appellant in terms of dishonesty. The issue was whether the appellant had knowingly and intentionally sought to deceive, and it was unreasonable and irrational of judge to use the sponsor’s evidence to essentially conclude deception on the appellant’s part when this was not relevant to the appellant’s mindset and intentions.
10. The judge failed to give adequate reasons further for rejecting the court documents from Ghana, given that they were issued by a competent authority and no evidence was produced by the respondent to show that these documents and related documents were forgeries or unreliable.
11. The judge did not engage adequately with the consistent narrative offered by the appellant from the time he was apprehended in 2013, and interviewed, until now, including his more recent interviews and witness statements.
Ground 3
12. In considering paragraph 320(11) as set out at [16] of the sponsor’s witness statement the appellant voluntarily returned to Ghana and paid for his own ticket. The judge in concluding that 320(11) was met had failed to have sufficient regard to a material public interest factor, the public interest in encouraging voluntary returns. This is important because given his British child, there would have been a strong chance that he would have qualified for leave to remain under Section 117B(6). The judge had not had sufficient, if any, regard to this. Indeed, the judge only referred to the public interest in maintaining immigration control, see [40] of the determination, without regard to this other public interest consideration. The appellant points to PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC), where the headnote states:
“In exercising discretion under paragraph 320(11) of HC 395, as amended, to refuse an application for entry clearance in a case where the automatic prohibition on the grant of entry clearance in paragraph 320(7B) is disapplied by paragraph 320(7C), the decision maker must exercise great care in assessing the aggravating circumstances said to justify refusal and must have regard to the public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance.”
Effectively, great care must be exercised in assessing the aggravating circumstances said to justify refusal.
13. There had been no consideration and exercise of discretion and a proper balancing exercise had not been carried out.
Ground 4
14. There were further arguable errors in the Article 8 assessment.
15. These errors are that:
(i) The judge states that the family life between the appellant and his spouse should be given little weight because it was formed at a time when the appellant was here unlawfully, but it was clear that the appellant and spouse married after the appellant returned to Ghana.
(ii) The judge does not factor into account that 117B(1) – (5) does not seek to penalise family life between the appellant and his British child. The judge had not had regard to the spirit of Section 117B(6) when assessing the reasonableness of keeping the appellant and his British child separated.
(iii) At [39] of the determination the conclusion that the child being kept away from the appellant would not be against the child’s best interest is arguably irrational. In the absence of any evidence that the appellant’s presence would be detrimental to the child the premise that two parents are better than one would apply.
(iv) The judge does not adequately assess whether it is reasonable for the child to be punished for the actions of the adults and whether therefore refusal of entry clearance may be unreasonable and disproportionate.
(v) The judge did not adequately factor into the assessment that the alleged reprehensible behaviour took place in 2013, i.e. eight years ago, and there was no deportation.
(vi) The judge states at [39] and [42] of the determination that family life can continue in the way and the best interests of the child are not adversely affected by being separated from the child’s father, but the judge does not appear to make any finding in respect of [20] of the sponsor’s witness statement, mother of the child, at AB/11.
16. At the hearing before me Miss Gilmour relied on the Rule 24 notice. In that the respondent opposed the appellant’s appeal and asserted that contrary to the grounds, the deception had continued, and that PS (India) did not entitle the appellant to automatically succeed in any appeal. The judge had correctly found that the appellant’s alleged identity had not been established and the fact that a passport had been issued in an identity did not legitimise that document if the details contained within it were not credible. It is important to note that the document should satisfactorily establish the appellant’s identity.
17. The judge had not erred in finding that the appellant had no lawful leave when his relationship with his wife began, and the judge had carefully considered the position in relation to the appellant’s child.
18. Mr Karim relied on his written grounds and helpfully emphasised the salient points in his oral submissions.
Analysis
19. At [5] the judge stated that ‘it is for the appellant to show on the balance of probabilities that at the date of the hearing the decision is an interference with his rights under Article 8’. That may be correct in terms of Article 8, but the judge did not appear to deviate from that burden of proof when dissecting the elements of dishonesty and deception under the rules which are a component of the Article 8 exercise.
20. In relation to ground 1 and paragraph 322(3) it is clear that the judge did err in failing to appreciate that the burden of proof was on the respondent and in relation to all the general grounds contained in Part 9 of the Immigration Rules (now amended). The burden was on the respondent to prove that the valid passport provided by the competent authority was not in fact valid and was a forgery. There was no burden on the appellant. Further, the judge failed to have regard to the previous interviews and documents as stated and failed to factor this into her consideration.
21. In relation to ground 2 the judge again failed to appreciate the relevance of the burden being placed on the respondent. At [26] the judge imported an adverse finding in relation to the sponsor’s evidence to find against the appellant in terms of dishonesty; that was an arguable error of law. At the outset of [25] the judge stated: “I found the evidence given by the appellant in his witness statement and the sponsor in her statement and oral evidence lacked credibility.” The judge gave no adequate reasons for rejecting the court documents from Ghana although they were issued by a competent authority and, as set out in the grounds, did not engage with the consistent narrative offered by the appellant from when he was apprehended in 2013 and interviewed.
22. In terms of ground 3 it is clear that the judge failed to consider the public interest in encouraging voluntary returns but moreover failed to apply PS (paragraph 320(11) when considering the aggravating circumstances or otherwise in relation to the application of 320(11).
23. In terms of ground 4, I agree that the grounds as outlined in Mr Karim’s grounds of appeal have force and demonstrate an arguable error of law. The judge failed to appreciate that the appellant married the qualifying partner in Ghana and after he had voluntarily departed the UK and the judge therefore gives little weight to that relationship when following Section 117B(4)(b).
24. In terms of the child the judge made a finding as follows: “I am satisfied that preservation of the status quo with J living in the United Kingdom with his mother and visiting his father in Ghana frequently would not be against his best interests”.
25. This fails to properly engage with the evidence contained in the educational psychologist’s report and in fact does not set out what the best interests of the child are. The test is not whether it would be against his best interests but what the child’s best interests are albeit that they are not the only consideration.
26. It was noted specifically in the Educational Psychology report that the mother is a care-worker in the NHS and works nightshifts and that constant change and transition had an effect on the child. The judge did not adequately address those facts.
27. I am not persuaded that the judge adequately engaged with the evidence and gave adequate reasons for rejecting the appeal under Article 8.
28. For all those reasons, I find there is a material error of law in the decision, and it should be set aside with no findings preserved.
Notice of Decision
29. The judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under Section 12(2)(b)(i) of the TCE 2007 and further to 7.2(b) of the Presidential Practice Statement.
Directions
a) The appellant’s sponsor lives in Northamptonshire but the hearing should be a hybrid hearing with the sponsor giving evidence by video.
b) This appeal should be relisted at Taylor House and consideration should be given to the availability of Mr Karim when listing the appeal hearing.
c) There needs to be no interpreter.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. This is because there is a minor involved.

Signed Helen Rimington Date 21st April 2022

Upper Tribunal Judge Rimington