Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/05116/2015
IA/05118/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 September 2016
On 29 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SHAMIMA SHAHIN
MD ALZAMI RAHMAN
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr S Karim, Counsel, instructed by Haque & Hausman Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department. The appellants are citizens of Bangladesh born on 17 July 1982 and 22 March 1987 respectively. They had appealed against the decisions of the respondent dated 16 January 2015 to refuse their application for leave to remain in the United Kingdom pursuant to paragraph 245ZX and paragraph 322(1A) of the Immigration Rules. The second appellant is the dependant of the first appellant who is a Tier 4 Migrant pursuant to paragraph 313B of the Immigration Rules. For the sake of convenience however I shall continue to refer to the parties as they were referred to in the proceedings before the First-tier Tribunal.

3. Permission to appeal was granted by Judge of the First-tier Tribunal Ford who in a decision dated 28 July 2016 gave permission to the respondent to appeal stating that it is arguable that the reasons given for the finding that the bank statements were genuine are inadequate. He further stated that the decision does not make sense as insufficient reasons were given for rejecting the document verification report provided by the respondent and found it an arguable material error of law.

4. The respondent in the grounds of appeal asserted a false representation allegation and accepts that it is for her to demonstrate such allegation as the burden of proof rests upon her. The judge was wrong to allow the appellant's appeal given the fact that the evidence produced by the respondent was from a third-party source. The judge noted that there was a document verification report showing that the bank accounts submitted by the appellant did not exist and neither did the solvency certificate transpire to be genuine.

5. A letter the appellant provided purporting to be from Citibank dated 9 February 2016 did not address the points raised in the document verification report and neither does it explain how it is now said that the account number and solvency certificate does not exist. There are several spelling errors on the letter and the judge should have found the letter as unreliable evidence.

6. At the hearing I heard submissions from both parties as to whether there was a material error of law in the decision of the First-tier Tribunal. Mr Bramble in his submissions said that the judge had not adequately considered the two sides of the position set forward by the appellant and the respondent. He also pointed out to a Robinson obvious point which is not in the grounds of appeal that at paragraph 14 the judge stated that the civil standard of the balance of probability applies and the burden of proof is on the appellant, which is clearly wrong because the burden of proof is on the respondent in this case.

7. Mr Bramble said there was a clear dispute and it was incumbent on the judge to give reasons as to which side was more reasonable unbelievable. Mr Karim in his submissions said that the judge found the appellant credible and was entitled to accept that the document produced by her from Citibank was credible.

8. In respect of the burden of proof error he said that it does not prejudice the respondent in fact it prejudices the appellant. He further said that the judge took into account all the evidence and referred to the document verification report in several paragraphs of his decision. This shows that he was mindful that he was considering both the document verification report and the letter from Citibank provided by the appellant before the appeal.

My Decision as to Whether there is an Error of Law in the Decision

9. The first issue I will point out is that the judge made a material error of law at paragraph 14 when he put the burden of proof on the appellant as opposed to the respondent. In cases where the respondent alleges fraud or forgery the burden of proof first rests on her, after which it is for the appellant to show that there is a reasonable explanation.

10. Mr Karim states that this does not make any difference and it does not prejudice the respondent. I disagree. It is not about prejudice to the respondent or otherwise. It is about the judge not taking the correct step-by-step approach to his decision. If the judge had understood the burden and standard of proof in cases of fraud, he may have come to a different conclusion. The letter that the appellant provided on 9 February 2016 entitled "To Whom It May Concern" from the Citibank Limited falls dismally short of addressing all the issues raised by the document verification report.

11. Any responsible bank when confronted with a document verification report from government authorities would give reasons for why their stance as taken at the date of the document verification report was wrong and why it has now changed. The judge gives no reasons whatsoever for why he accepted the letter from Citibank two years after the event. The judge's findings at paragraph 16 merely say that he takes into account further evidence from Citibank and seems to rely on the appellant's evidence which he finds to be credible. That is clearly not sufficient in light of the respondent's document verification report.

Notice of Decision

12. I have no hesitation whatsoever in deciding that there has been a material error of law in this decision and I set it aside. I send it back to the First-tier Tribunal to be placed before any judge other than Judge Sweet.

Signed Mrs S Chana Date 25th day of September 2016

Deputy Upper Tribunal Judge Chana