Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01313/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 September 2016
On 20 September 2016

Before

Upper Tribunal Judge
John FREEMAN

Between

AJAY KUMAR
appellant
and

Immigration Officer, HEATHROW
respondent

Representation:
For the appellant: Mr A Chohan (barrister employed by SZ Solicitors)
For the respondent: Mr Chris Avery

DECISION AND REASONS

1. This is a student appeal from a decision following a hearing before Judge Peter Ievins at Taylor House on 14 January 2016, in which he dismissed the appellant's appeal against refusal of leave to enter and cancelation of his leave to remain on 7 January 2015.

2. The decision under appeal was made on the basis that the certificate in question, which was given by what appears to be a degree awarding body called ISA, was false, so that the appellant had obtained his most recent period of leave to remain, for studies at South Chelsea College, by false representations.

3. What both sides and the judge had before them was the immigration officer's very full and detailed explanatory statement of 30 August 2015. However it is not clear that either side or the judge had the full Home Office bundle, which gives the attachments which are before me. The certificate which the appellant had produced in order to get his leave to remain to study at South Chelsea College was an extended Diploma in Business and Enterprise Level 5, which purported to have been issued by ISA on 4 June 2014.

4. The explanatory statement says this at paragraph 15:

"Subsequent to the cancellation decision Officer S Khan scanned the ISA diploma and emailed a copy to the verifications team with ISA Education. On 12 February ISA Education responded confirming the diploma did not match their records."

5. So that put the appellant's representatives on notice that some evidence did exist to show that the diploma was false. The evidence which actually existed was an e-mail of 12 February 2015 addressed to the Immigration Officer who had made the enquiry saying this: "Thank you very much for the required information you were looking for. We have checked in our records and it does not match."

6. To justify his decision, the immigration officer needed to satisfy the judge on the balance of probabilities that the certificate was false. So the terms of the ISA e-mail were of some relevance. The judge (at paragraph 6) quotes as the presenting officer as saying that there had been nothing on the Home Office system and it would take a week to obtain information from the port. So it is clear that some enquiries had been made, as a result of what the explanatory statement had said. The presenting officer went on to suggest that the immigration officer's own decision was unlawful as he had not had any original evidence, and the case should be sent back to the Secretary of State to make a lawful decision.

7. The next paragraph shows that Mr Chohan for the appellant took his stand on the absence of any evidence to support the decision. He said in terms that there was nothing from the certificate -awarding body. So the judge went ahead with the hearing and dealt with the evidence before him at paragraph 21. He dealt with the appellant's previous studies at Zaskin College but this is all he said about the ISA diploma, which was the crucial piece of evidence in the case

"The extended diploma in business and enterprise comes from somewhere called ISA Education centre number 00125. It is not clear to me if ISA Education actually had premises or whether they award certificates at other educational institutions but the appellant's evidence was on the whole vague."

He went on to say

"Although it is for the respondent to prove her case, the appellant has known what the issues were for a year or so and he has not produced any evidence from Zaskin, ISA or anywhere else."

8. In fact of course, it was for the respondent to produce the evidence. It is now clear that it did exist, but for one reason or another was not available to either side or to the judge at the hearing, and it seems to me the result has got to be a fresh hearing before another judge.

9. It should be a very clear and simple question in this case as to whether the ISA certificate which I have mentioned was the one e-mailed to ISA verification on 9 February 2015, and was regarded by them in their reply on 12 February as not matching their records. Although those representing the appellant may have been rather rash to take their stand on the absence of evidence as they did, because of the burden of proof they were entitled to see before the hearing what the respondent had got.

Notice of Decision

10. For one reason or another that did not happen so there was a material error of law and the decision is set aside and the result must be a fresh hearing before the First-tier Tribunal.

(a judge of the Upper Tribunal)
20 September 2016