Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/01889/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 16 September 2013
On 20th September 2013
Prepared 16 September 2013

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

MD AMINUR RAHMAN
(NO ANONYMITY ORDER MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Chowdhury, Solicitor
For the Respondent: Mr Deller, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals with permission against the determination of First-tier Tribunal Judge Shamash promulgated on 31 May 2013 in which he dismissed the appeal against the decision of the respondent to refuse to vary the appellant's leave to remain as a Tier 4 Student Migrant pursuant to paragraphs 245ZX(i) and 322(1A) of the Immigration Rules. The judge did, however, allow the appellant's appeal against the decision of the respondent to make removal directions pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006. That decision is not challenged by the respondent.
2. The appellant's case is that he is entitled to further leave to remain as a Tier 4 Student Migrant on the basis that he had a valid CAS and was in possession of the required funds for the relevant period.
3. The respondent refused the application on the basis that the bank statement from Prime Bank supplied by the appellant as evidence of the funds available to him was not genuine and therefore he was not entitled to the 10 points claimed under Appendix C of the Immigration Rules. She concluded also that as the bank statement had been checked with the issuing body who confirmed that the documents had not been issued, that the appellant had used false documents in support of his application and thus it fell to be refused under paragraph 322(1A) of the Immigration Rules.
4. The appeal was first listed for hearing before the First-tier Tribunal on 12 April 2013 but it was adjourned to a later date at the request of the appellant's solicitors on the basis they were seeking additional time to verify the bank statement.
5. Judge Shamash dismissed the appeal under the immigration rules, finding that:
(i) when an allegation of dishonesty is made it is for the respondent to establish that there has been some dishonesty on the part of the appellant [15];
(ii) the appellant had not put forward any information which displaces the document verification report relied upon by the respondent[15] ; and
(iii) in any event there was no evidence which had been independently verified to displace the assertion made by the respondent the appellant having been given extra time to authenticate the letters[16];
(iv) the respondent had established to the relevant standard of proof that the bank account relied upon does not exist [17].
6. The appellant sought permission to appeal against this decision on the grounds that the judge had erred:
(i) In failing to consider properly the dates in the document verification report given that it had been submitted on 26 July 2012 but that the bank had been contacted on 8 November 2012;
(ii) In taking account of an irrelevant matter by suggesting that the proper course of action to take when the letter, confirming that the appellant had an account, had been obtained from the bank was to send it to the ECO and thus imposing a burden of proof on the appellant rather than on the respondent [5];
(iii) By stating that the burden of proof was on the appellant in paragraph 10 of his determination [6] and in blaming the appellant in not putting forward evidence to counter that placed by the respondent [8];
(iv) By unreasonably and unfairly imposing a high standard of proof on the appellant, failing to give adequate findings of how information from an unknown source via telephone conversation was more authentic than a letter obtained directly from the bank and signed by a responsible person.
7. Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Frankish on 1 August 2013.
Submissions
8. Mr Chowdhury submitted that the judge had erred in his analysis of the Document Verification Report ("DVR") given it appears to have been submitted on 26 July 2012 although he accepted that the first page [D1] does not reach any conclusion. He accepted that the challenge to this letter was in relation to weight to be attached by the judge although he submitted the case law shows that an inconsistency should lead to less weight being attached to a document. He further submitted that the judge had erred as the DVR shows only that somebody spoke to an unnamed official whereas the letters produced to the Tribunal were signed.
9. Mr Chowdhury was not, however, able to explain to me why there were two letters from Prime Bank of the same date, 29 March 2013, saying similar things nor why one of the letters referred to issues about the history of transactions when there was no indicatino that it was the history of transactions which was in dispute. He was unable to explain either why the letter of 29 March 2013 in effect reproduced the letter from the bank dated 10 July 2012 (other than the date given for the balance).
10. In reply, Mr Deller submitted that the judge had not misdirected himself as to law and it was clear that the statement regarding the standard and burden of proof at paragraph 10 of the determination had not affected his decision with respect to the allegation of dishonesty, the judge having properly directed himself as to the burden of proof there. He submitted further that the judge had been entitled to conclude that he was persuaded by the letter DVR and that he accepted that the judge had not been correct to say that the letter should have been submitted to the Entry Clearance Officer.
11. On a proper analysis of the DVR it is evident that the first page [D1] is a report prepared by an official, Lynn Parr, in the United Kingdom. Whilst it does record "date submitted" as 26 July 2012, the bottom of the form which reads "Print this form and place it at the front of the file before submitting for collection then email the form to NEYHILU." Submission in this case means submission to another part of the UKBA. Page D1 contains no conclusions as to the authenticity of the bank statement.
12. The document at page D2 records the actions taken consequent upon the form at D1 being submitted to the relevant section, in this case a Visa Support Assistant in Dhaka. The assistant contacted Prime Bank Limited, in relation to the appellant, and as is recorded, spoke to an official who said the account did not exist Page D3 is a standard notice and D4 is an email containing the report being sent from the International Liaison Unit to an official within UKBA. That email is dated 8 November 2012.
13. It is not properly arguable in the circumstances that there are any inconsistencies in the dates in this document. The dates are different simply because of the actions taken at different stages of investigation. It is not proper to draw any inferences from the phrase "date submitted" other than the fact that it was submitted to a separate unit within the Home Office.
14. It is not in dispute that the determination paragraph 10 records "the burden of proof is on the appellant the standard of proof is the balance of probabilities." Whilst that is the general position, it is trite law that in the case of an allegation of dishonesty it is for the respondent to establish this. After directing himself properly as to the case law [12]-[14], the judge directed himself [15] properly that it was for the respondent to prove dishonesty. I consider that he did apply the correct burden and standard, and that what he recorded at paragraph 10 is merely a slip not affecting the close and fuller self-direction below.
15. As Mr Chowdhury accepted, the weight to be attached to DVR was a matter for the judge. That diminishes significantly the submission in the grounds of appeal that the judge should have rejected it given that there was no named official whereas the letters produced by the appellant were signed by the Vice President of the bank. That is simply an argument about weight which was a matter for the judge.
16. While the DVR does not record the name of the official, it does give a telephone number that was contacted but that is not determinative of the weight to be attached.
17. While the judge did erred in suggesting that the letters from the bank should have been supplied to the Entry Clearance Officer (rather than the respondent), and that is an irrelevant consideration, neither of the letters produced deal directly with the allegation that the account does not exist; they simply state that it exists. Neither letter offers any explanation for how a bank official could have told the respondent's representative that the account did not exist nor do they expressly deny that such a conversation took place; they simply do not engage with the issue.
18. The letter of 29 March 2013 which refers to transactions states:
"I have noted that the date of transaction of accounts is almost identical. Consequently we have checked our record for these accounts and found that these are genuine transactions made by our client."
19. This appears to be responding to a request from the appellant which was not before the judge. No proper explanation for that was provided. That letter is clearly written as a response to irregularities in transactions which was not the issue her and there is no attempt to respond to the specific allegation or provide an explanation for the evidence set out in the DVR. In the circumstances, the Judge was entitled to attach less weight to it.
20. In reality, the challenge to the judge's consideration of the letters from Prime Bank is one of weight and in the absence of letters which must have been written to the bank to obtain them, or evidence as to what was said in a conversation with the bank, the judge was entitled to attach less weight to them. It is not arguable that the reference to letters not being passed to the ECO affected the outcome of this analysis and accordingly, whilst the decision may have been more elegantly phrased, it sets out clearly why the judge accepted, as he was entitled to do, the DVR and why he attached less weight, as he was entitled to do, to the letters from Prime Bank which do not engage with the DVR.
21. The determination shows that the Judge weighed the evidence before him, finding that the respondent had, on the balance of probabilities shown that the appellant did not have an account with Prime Bank, a conclusion open to him, and thus that the respondent had shown that the requirements of paragraph 322 (1A) had been met. There is no submission from the appellant that, having found that the bank account in respect of which statements had been adduced did not exist, the judge erred in concluding that the appellant had used deception. It follows from this that the appeal fell to be dismissed,
22. Accordingly, the determination did not involve the making of an error of law by the First-tier Tribunal capable of affecting the outcome and I uphold it.

SUMMARY OF CONCLUSIONS
1. The determination of the First-tier Tribunal did not involve the making of an error of law capable of affecting the outcome of the appeal. I uphold the determination of the First-tier Tribunal
Signed: Date: 18 September 2013

Upper Tribunal Judge Rintoul