Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07472/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 January 2017
On 2 February 2017

Before

DUPTY UPPER TRIBUNAL JUDGE MONSON

Between

Ms agnes daniel
(anonymity direction not made)
Appellant

and

IMMIGRATION OFFICER
Respondent

Representation:

For the Appellant: Ms Y Alabi, Solicitor, Kings' Court Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Abebrese sitting at Taylor House on 1 March 2016) dismissing her appeal against the decision of an Immigration Officer at Heathrow Airport made on 13 February 2015 to refuse her entry to the United Kingdom, and to cancel her existing leave to enter as a visitor. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the appellant requires anonymity for these proceedings in the Upper Tribunal.
The Reasons for the Grant for Permission to Appeal
2. On 6 December 2016 Upper Tribunal Judge McWilliam granted the appellant permission to appeal on a renewed application for permission as it was arguable "that the Judge did not apply the correct standard and burden of proof (see [6])".
Relevant Background Facts
3. The appellant is a national of Nigeria, whose date of birth is 24 June 1948. On 8 March 2013 she was issued with a multi-visit visa valid for 5 years until 8 March 2018.
4. The appellant arrived in Terminal 3 at Heathrow Airport on 13 February 2015 by flight from Lagos. She was interviewed, and following the interview she was refused leave to enter. She was issued with notice of refusal of leave to enter, which gave two reasons for the refusal of leave to enter, and for the concomitant decision to cancel her existing entry clearance.
5. The Immigration Officer was satisfied that either false representations were employed or material facts were not disclosed for the purpose of obtaining entry clearance; or there had been a change of circumstances since the visa was issued which removed the basis of her claim to admission.
Material Change of Circumstances removing basis of claim for admission as a Visitor
6. The first reason given was that, since she was granted entry clearance on 8 March 2013, she had visited the UK from 13 April 2013 to 5 October 2013 (thus staying for 6 months); from 18 October 2013 to 15 December 2013 (thus staying for 2 months); from 25 January 2014 to 10 June 2014 (thus staying for 5 months); from 11 September 2014 to 31 January 2015 (thus staying for 4 months); and today she was seeking entry for 6 weeks. But her daughter had stated that she was going to stay in the UK for 3-4 months, and the appellant did not have a return ticket to Nigeria to confirm how long she was staying in the UK on this occasion.
7. Accordingly, over the last 22 months she had stayed in the UK for a period of 17 months, with only brief absences from the UK. She had stated that her main reason for coming to the UK for extended visits was to support her daughter with looking after her children who were aged 13, 10 and 6. The Immigration Rules did not permit visitors to live in the UK for extended periods through frequent or successive visits.
Deceptive entry stamp on Passport
8. The second reason was that he was satisfied that the Nigerian entry stamp in her passport, dated 3 December 2009, had been fraudulently obtained by her to disguise the length of time that she had stayed in the UK on her previous visit visa, which was issued to her on 7 October 2009, and which had been valid until 7 April 2010. Exit checks showed that she had departed the UK on 3 April 2010, staying for 5 months, whereas the stamp suggested that she departed on 3 December 2009. On challenging her with this evidence held by the Department, she then admitted (at further interview) that she had stayed in the UK for 5 months on the above visit, and not for the 3 weeks as suggested in her passport.
9. If the Entry Clearance Officer had been aware of the fact that she had misrepresented the length of time she had stayed on her earlier visit, by obtaining a fraudulent entry stamp in Nigeria, he would not have issued her with a subsequent visit visa.
The Grounds of Appeal to the First-tier Tribunal and the Response
10. In her grounds of appeal to the First-tier Tribunal, the appellant pleaded that the refusal of leave to enter was mainly based on her allegedly falsifying an Nigerian entry stamp. However, the respondent had not provided any positive evidence to prove that she had lied or submitted false documentation.
11. In response to the grounds of appeal, the Immigration Officer prepared a lengthy report which addressed each of the 10 pleaded grounds of appeal. With respect to ground 1, the Immigration Officer did not produce any documentary evidence to show that the appellant was recorded on a Home Office database, or elsewhere, as having returned to Nigeria on 3 April 2010. Instead, he relied on what he characterised as "conflicting statements" which the appellant had given in interview. He said that these conflicting statements suggested that the appellant was being less than candid about the length of time that she spent in the UK on the visit which she had undertaken in the autumn of 2009.
The Hearing Before, and the Decision of, the First-tier Tribunal
12. At the hearing before Judge Abebrese, both parties were legally represented. The appellant was called as a witness, and she adopted as her evidence in chief her witness statement in the appellant's bundle. She said that the Nigerian entry stamp in her passport was not fraudulent. She had not disguised the length of her visit to the UK. After a visit, she had left for Nigeria on 3 December 2009 as stated in her passport. The allegation that she had left on 3 April 2010 had not been proven by documentary evidence. In the absence of documentary evidence to support the assertion that the stamp on her passport was forged, the Immigration Officer had not discharged the burden of proof.
13. In his subsequent decision, the Judge directed himself at paragraph [6] that the appellant bore the burden of proof and the appellant had to satisfy this burden on a balance of probabilities. At paragraph [12], he found the appellant and her daughter (who had given a witness statement) were not credible in respect of their evidence. He accepted the evidence that the Nigerian stamp of 3 April 2010 was a roll-back stamp, and that on balance the appellant must have known that this "false" stamp was entered in her passport.
14. At paragraph [14], the Judge expressed the view that there had been significant changes in the appellant's circumstances and that material facts were not disclosed for the purpose of obtaining entry clearance, so it was appropriate that her leave was cancelled.
15. The appellant claimed that under paragraph 320(7a) there was a need for there to be positive evidence to prove that she had lied or submitted false evidence. The Judge set out the wording of paragraph 320(7a), and reached the following conclusion at paragraph [15]:
"I find that on the evidence and the wording of the above section the appellant is caught by the provision that her knowledge or lack of knowledge according to her evidence is not a decisive factor in her favour. On the basis of my findings I conclude that the appellant cannot satisfy the Immigration Rules and her appeal is dismissed under the Rules."
Discussion
16. Paragraph 321 of the Rules provides that a person seeking leave to enter the United Kingdom who holds an entry clearance which is duly issued to him and which is still current may be refused leave to enter only where the Immigration Officer is satisfied that:
(i) false representations were made or false documents or information were submitted (whether or not material to the application, and whether or not to the holder's knowledge), or material facts were not disclosed, in relation to the application for entry clearance; or in order to obtain documents from the SSHD or a third party required in support of the application;
(ii) a change of circumstances since it was issued has removed the basis of the holder's claim to admission, except where the changes of circumstances amount solely to the person becoming over age for entry in one of the categories in paragraphs 296-316 of these Rules since the issue of entry clearance ?
17. The Judge wrongly referred to Paragraph 320(7A) instead of to Paragraph 321(i). But nothing turns on this. His material error was not to direct himself that the burden rested with the respondent to prove that the Nigerian entry stamp was fraudulent, in that it conveyed the false information that the appellant had returned to Nigeria on the date given in the stamp, when in fact her date of entry to Nigeria was some months later, namely at the beginning of April 2010.
18. In addition, as Mr Bramble agreed in oral argument, the respondent had to prove that the appellant was complicit in the fraud. The respondent had to prove that the appellant knew that her passport contained a false representation as to her date of return to Nigeria following her visit to the UK in 2009. Accordingly, the Judge was wrong to direct himself that it did not matter whether the appellant was aware of the existence of the "false" stamp.
19. The position is not salvaged by the Judge having earlier made clear adverse credibility findings against the appellant on this issue. For these findings are not adequately reasoned. There has also been a failure to engage with the central thrust of the appellant's case on appeal, which is that there is no documentary evidence to show that the Nigerian entry stamp is in fact false.
20. In interview at question 7 the Immigration Officer said that he had done checks with "the airline" which showed that the appellant left the UK on 3 April 2010. The airline in question has never been identified, and its records allegedly showing the appellant's date of departure on 3 April 2010 have never been produced.
21. In response to the grounds of appeal to the First-tier Tribunal, the Immigration Officer did not take the obvious course of producing the relevant records from the airline, but simply fell back on the tendentious proposition that the appellant had admitted what was alleged against her. However, the appellant did not make a clear admission of guilt. What she said in answer to question 8 was as follows:
'If your checks state that I stayed for 5 months, then I must have stayed for 5 months.'
22. Given that (a) she was being asked about a visit undertaken many years earlier, (b) her age and the stressful circumstances in which the appellant found herself, and (c) the fact that in more recent times she had remained in the UK for as long as five or six months, the appellant's answer was not, on the face of it, evasive or lacking in candour. On the contrary, it was a reasonable response in the circumstances.
23. Thus there has been a failure to give anxious scrutiny to the evidence relied on by the respondent, and this has been compounded by a clear misdirection that the burden rested with the appellant to prove that the stamp was genuine, rather than upon the respondent to prove that it was false.
24. Accordingly, I find that the finding under paragraph 321(i) is unsafe and it must be set aside. There is no justification for a further hearing to remake the decision under paragraph 321(i), as the respondent has not sought to adduce further evidence pursuant to Rule 15(2)(a). Accordingly, the respondent has failed to discharge the burden of proving that the refusal of leave to enter was justified by reference to paragraph 321(i).
25. There is, however, no error of law in the Judge implicitly upholding the first ground of refusal relied on by the Immigration Officer as justifying the cancellation of the appellant's existing entry clearance, namely that there had been a change of circumstances since the visit visa was issued such as to remove the basis of the holder's claim to admission.
26. The facts relied upon by the Immigration Officer with regard to this ground of refusal have been largely admitted by the appellant. She does not dispute his account of her recent immigration history. Moreover, her daughter told the Immigration Officer that her mother was coming to stay for another lengthy period, and the daughter did not retract this in her subsequent witness statement. So the appellant has no effective answer to the respondent's case that she was not a genuine visitor, because at the time of seeking entry to the UK she had effectively been residing in the UK for nearly two years, with only relatively short periods of absence in Nigeria, and she was proposing to carry on in the same vein.
27. Accordingly, there is no material error of law in the conclusion that the appeal should be dismissed under the Rules and on Article 8 grounds outside the Rules.

Notice of Decision
Although the First-tier Tribunal was wrong to find that there was a false Nigerian entry stamp in the appellant's passport, and it ought to have found that the Respondent had not discharged the burden of proof on this issue, the decision of the First-tier Tribunal is not vitiated by a material error of law, and so (with the exception of the above finding) the decision of the First-tier Tribunal stands and the appellant's appeal to the Upper Tribunal is dismissed.
I make no anonymity direction.

Signed Date

Judge Monson
Deputy Upper Tribunal Judge