Tribunal decisions

The decision

IAC-HW-AM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10095/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 12 December 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE PINKERTON

Between

mr a s m maksud khan
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The appellant was neither present nor represented at the hearing.
For the Respondent: Mr E Tufan

DETERMINATION AND REASONS
1. The appellant is a citizen of Bangladesh who was born on 21 November 1982. On 23 July 2012 he applied for leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant under the points-based system. The application was refused by a decision dated 12 March 2013. The appellant appealed that decision but the appeal was dismissed in a determination promulgated on 20 September 2013.
2. Upon a renewed application for permission to appeal to the Upper Tribunal the judge granting permission said that the lengthy grounds (supporting the application for permission to appeal) argue in essence that the judge disregarded the correct burden of proof, wrong weight had been given to the evidence before him and the removal decision was unlawful. Permission was granted on the final ground and the Upper Tribunal Judge then stated that he considered “that there is little merit in the other grounds”. There were two other grounds. As to the first the Upper Tribunal judge said that the judge engaged with the evidence put forward by the respondent and although the reasoning was succinct the finding was open to him. It is clear that the judge was aware of the burden (of proof) and that this was on the respondent. As to the second ground that is an evidential argument and does not identify arguable error. Although the self-direction by the judge in paragraph 4 of the determination as to the application of Section 85A of the Nationality, Immigration and Asylum Act 2002 was wrong there is no indication that any evidence was excluded as a result. The grounds do not identity any evidence that was not taken into account.
3. The respondent filed a Rule 24 response to the appellant’s application for leave to appeal. It was accepted that the decision under s.47 Immigration, Asylum and Nationality Act 2006 was unlawful and that in those circumstances it was said to be appropriate for the Tribunal to allow the appeal to that limited extent. However, the reasoning for rejecting the other grounds of appeal are sound. It was considered that on that basis it would serve no useful purpose to list the case for a further hearing.
4. As to that last matter the error of law hearing was listed for an oral hearing and notice of that hearing was sent to the appellant at the last known address given for him. The notice was returned with a note on it saying “Please clear this address no one live above name. It is a shop – thank you”. As a result of receipt of that communication the Tribunal wrote to the representatives for the appellant who provided a more recent address for the appellant. In any event his representatives who are on record as acting for him were aware of the hearing date because I am satisfied by a perusal of the file that they were sent the notice of hearing for 12 December 2013 that had been issued on 12 November 2013. An attempt was made by the Tribunal on the day of the hearing to contact the representatives by telephone but this was unsuccessful.
5. Being satisfied as I was that the appellant had notice of the hearing I decided to proceed. Although the Upper Tribunal Judge granting permission to appeal did not specifically exclude the grounds other than in relation to the Section 47 point, confining himself to stating that there is little merit in the other grounds, it is perfectly clear to me that the appellant had an uphill struggle to persuade me that the judge had erred in the way submitted. In coming to his findings the judge relied upon two DVRs (Document Verification Reports) which showed that bank letters from Pubali Bank and Agrani Bank were false. Those bank letters had been filed in support of the application.
6. The judge at paragraph 4 of the determination stated correctly that the appellant has the burden of proving his case on the balance of probabilities but where the respondent relies as she does on paragraph 322(1)(A) of the Immigration Rules it is for her to prove “to the higher standard of probabilities” that the appellant has made false representations or used forged documents to obtain leave.
7. The judge thereafter set out his findings of fact. As well as accepting the conclusions of the DVRs he commented adversely that although the refusal letter was issued on 12 March 2013 it was not until some five months later on 18 August 2013 that letters were sent from Bangladesh confirming the existence of the accounts referred to in the appellant’s application. No explanation was given for the delay in obtaining them. The letters of confirmation were then not sent to Taylor House until 27 August 2013. The hearing took place on 30 August.
8. I am satisfied that on the evidence the judge was entitled to make the findings that he did for the reasons that he has given. Where he did go wrong, and this is accepted by the respondent, is that the decision to remove the appellant from the United Kingdom by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006 was contained within the refusal decision. This was prior to the date of implementation of the rule that allows the respondent to do this.

Decision
9. The judge has not erred in such a way that this appeal should be considered again. His decision therefore to dismiss the appeal is upheld except that as stated previously the removal decision by the respondent is unlawful and will have to be remade by the respondent, if she so decides, in accordance with Section 47 of the 2006 Act. To that extent only therefore the appeal is allowed.
10. No anonymity direction has been made and I see no requirement in the circumstances of this case for one to be made now.

Signed Date

Upper Tribunal Judge Pinkerton