Tribunal decisions

The decision

IAC-AH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07298/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st February 2017
On 14th February 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

farzana afrooz

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Biggs, Counsel instructed by MMQ Hassan Solicitors
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh born on 31st July 1979. On 16th August 2014 she applied for indefinite leave to remain on the basis of ten years' continued residence in the United Kingdom. That application was refused by the decision of 10th February 2015. Furthermore a notice of removal was also made on the same date.
2. The appellant sought to appeal against both decisions, which appeal came before First-tier Tribunal Norton-Taylor on 22nd April 2016. The appeals were dismissed and a challenge is now made as to reasonableness and lawfulness of the findings of fact made by the Judge such as to constitute a material error of law. Permission to appeal was granted and thus the matter came before me on 10th November 2016 to determine that issue.
3. I came to the conclusion, for the reasons set out in my determination dated 16th November 2016 attached hereto, that the Judge had made a number of findings concerning the passport of the appellant, which were largely irrelevant to the issues which the judge was required to determine. It seemed to me that the judge failed to make the requisite findings of fact which properly disposed of the issues on the appeal and as such the decision was focussed largely on irrelevant matters and therefore amounted to an error of law. In those circumstances the decision of the First-tier Tribunal was set aside to be remade in the Upper tribunal, preserving the nature of the evidence given but not the conclusions.
4. I indicated that I would determine the issue on a separate occasion and thus it was that the appeal came for hearing before me on 1st February 2017. It rather seems to be fundamental in this case to focus upon the reasons why the refusal of 10th February 2015 was made.
5. The position as adopted by the respondent in the decision is that the appellant sought to obtain entry clearance in a false identity.
6. The matter is put in two ways. The first is as follows:-
"You have submitted a passport PO825970 purporting to show that you entered the United Kingdom on 03 March 2003 with a visa as a student. However, the National Document Fraud Unit (NDFU) has confirmed that the photograph in that passport has been substituted and that therefore the passport cannot be accepted as evidence of your identity, nationality or status in the UK. Therefore it is concluded that you entered the UK illegally. The NDFU has also confirmed that your current passport F0807741 was obtained fraudulently against the previous passport PO825970."
It was also stated in the decision:-
"It is noted that you claimed to have arrived in the United Kingdom on 03 March 2003 with a valid student visa. However subsequent checks conducted by the National Document Fraud Unit has stated that the original photograph in the passport (PO825970) has been substituted and therefore cannot be relied upon as evidence of your identity, nationality or how you entered the United Kingdom. It is therefore considered that you have entered the United Kingdom illegally using documentary deception and have used this passport to obtain all leave since arriving in the United Kingdom. With this in mind you have failed to demonstrate ten years' continuous lawful residence and satisfy the requirement of paragraph 276B(i)(a)."
Because the previous applications for leave to remain in the United Kingdom had been obtained with the use of a fraudulently obtained passport the application falls for refusal under the general grounds of paragraph 322(2).
7. The respondent relies essentially upon the evidence of the expert who examined the passport, Mr Sheppard. His evidence is set out most helpfully at paragraphs 53 to 67 of the First-tier Tribunal determination. In summary his evidence was that the passport had been tampered with in the sense that the original photograph affixed had been removed and replaced as had the signature strip. He was unable to say at what stage the tampering had occurred. Various propositions were put to him and they are set out in the paragraphs with his reply.
8. Essentially it would seem as a matter of logic that there are two possible explanations for that tampering. First, that relied upon by the appellant and by Mr Biggs in his various submissions, is that it was done in the process of issuing the passport originally by the Bangladeshi authorities. There may have been some reason why the photo and signature strip had to be removed and then replaced. It is not yet a scenario that has been canvassed explicitly with the Bangladeshi authorities. Some support for that view is gained by the fact that the photograph and the signature strip were covered by a laminate and the expert was silent on whether the laminate had been interfered with as well. It is submitted that access to the photograph and to the signature strip could not have been gained otherwise than by removing the laminate. If the laminate had not been removed, such gives strength to the suggestion that it was applied by the authorities after they had re-positioned or moved the photograph and the signature stip. Unfortunately that particular aspect of the evidence was not canvassed with Mr Sheppard for his comments.
9. The second possibility is that at some stage, subsequent to the appellant having possession of the passport, she permitted the removal of her photograph and signature strip, presumably to facilitate the replacement of another and thereby impliedly giving support to somebody to use her passport to deceive the authorities. That was the view taken eventually by the First-tier Tribunal Judge.
10. It seems to me, however, that for the purposes of this particular appeal it is not necessary to come to a confirmed view one way or the other. If the appellant had facilitated the misuse of her passport, that certainly would be something which would call into mind her character, conduct and associations under 276(B) such as to amount to a ground to refuse to grant her indefinite leave to remain. That however is not the ground that is relied upon in this decision nor indeed is it articulated in that particular way.
11. Given that the conclusion of the Judge was not therefore relevant to the real issue in the appeal Mr Biggs invites me not to preserve that conclusion. The Judge has made a number of findings of conclusion at paragraph 51 of the determination. Mr Biggs has no objection to the finding of 51(a) being preserved but invites me not to preserve (b) - (e). It seems to me that there is merit in his invitation. I was not urged to do otherwise than by Ms Ahmad.
12. If and when the tampering occurred becomes a live issue for the purposes of future proceedings, then no doubt further evidence and clarification will be obtained upon it. I therefore do not think it proper to bind those who are to deal with that issue at this stage particularly when, as I have indicated repeatedly, it is not a finding that is germane to the issue.
13. There are however two findings of fact in the evidence given which are entirely relevant to the issue and they are set out helpfully in paragraphs 77 and 78 of the First-tier Tribunal's determination. The Bangladesh authorities have specifically indicated that, in relation to the passport under challenge, it was properly issued to the appellant in her proper identity. Further, the Bangladeshi authorities checked the details of the passport as examined by Mr Sheppard and confirmed that it contained the correct details of the appellant as to be found upon their records. The Bangladeshi authorities have confirmed that the appellant's name, photograph, passport number and issuing authority are all correct as presented on that passport. I summarise the evidence but there is no challenge to that which is set out at paragraphs 77 and 78 and indeed I am asked to preserve that summary which I do.
14. Thus there is clear and direct evidence that the original passport PO825970 was issued in the correct identity of the appellant and when presented to the authorities, retained and examined it remained in the correct identity. There is no evidence that has been presented to show that at the various times when the appellant presented her passport for a renewal or for obtaining or renewing leave to remain, such was not in her correct identity. Indeed it would make very little sense for her to have done otherwise. The passport was not fraudulently obtained it was legitimately issued. There is nothing to indicate that on the previous applications for leave to remain in the United Kingdom such legitimately issued passport was not otherwise than in her proper identity.
15. I have invited Ms Ahmad to draw my attention to any evidence which indicated that the appellant had presented a passport otherwise than in her correct identity. She was unable to do so. Even making the worse assumption that the appellant had at some stage permitted another to make use of her passport for their purposes, such falls very much short of the allegations contained in the refusal namely that she had made such false representations and had failed to disclose the material facts.
16. I indicated to the parties that on the evidence that had been presented before the First-tier Tribunal and now placed before me, there was nothing to indicate that, when the appellant presented her passport for the various applications, such was not otherwise than in her proper identity. Both parties were in agreement that that would seem to be the position.
17. Thus considering the reasons for refusal put to me, I so find that there is no evidence to establish any of those propositions advanced as to false representations or as to false identity. There is no evidence to indicate that when the appellant entered the United Kingdom she did so illegally or used any documentary deception. Rather I find that the evidence points conclusively to her having used her properly issued passport for all purposes.
18. In those circumstances I find the decision to be defective and the reasons for refusal not made out upon the evidence. In the circumstances I indicated to the parties that I would allow the appeal on that particular basis and they were agreeable to do so. It would then be open to the respondent to make a new decision in the light of the findings of fact that I have made.
19. Mr Gibbs invited me to deal with the issue of the tampering and make findings upon it and draw a conclusion as to whether such should be laid at the door of the appellant. I agree that it is a matter that may need to be resolved but it is not material to my consideration of the challenge to the decision. No doubt the proposition, which he advances, that any tampering was done prior to issue and by the Bangladeshi authorities, can be the subject of further expert evidence or the questioning of Sheppard or indeed in asking questions of the Bangladeshi authorities. The issues of the laminate and the difficulty in extracting such photograph and signature strip post-issue are all matters that can be canvassed if indeed the respondent seeks to raise them.
20. However for the present purposes the appeal succeeds for the reasons which I have outlined. The appeal under the Immigration Rules is allowed
No anonymity direction is made.

Signed Date 10 February 2017

Upper Tribunal Judge King TD