Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11231/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19th January 2017
On 27th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

mr Abubakkar sanugondla
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr Tufan, HOPO

DECISION AND REASONS
1. This is the appeal of Mr Abubakkar Sanugondla brought against the decision of Judge Symes following a determination made on the papers at Richmond on 4th February 2016.
2. In his determination, the judge set out the immigration history of the appellant.
3. He was granted leave to enter as a student from 22nd January 2006 and again on 28th June 2007, receiving extensions of leave in the international graduate scheme until 16th July 2009. He was then granted leave to enter as a post-study migrant on 11th July 2009 until 16th July 2010, by which time he had made a further application under Tier 1, on 29th March 2010 which was refused with no right of appeal on 11th June 2010.
4. A further application was again refused, including on the grounds that the appellant had submitted a false document, but subsequently allowed on appeal, in July 2012, by Immigration Judge Mailer. Leave was then granted from 10th January 2013 until 10th January 2015.
5. Immigration Judge Symes said that the application for further leave to remain, leading to the appeal before him, was refused because he had previously relied in his applications from 2010 on an MBA qualification evidenced by a certificate from Andhra University which had been verified as not genuine. The appellant had nevertheless claimed in the present application that he had never used deception in any previous application. He had therefore not disclosed a previous false representation and his application fell to be refused under Rule 322(1)(a) and 322(2).
6. The judge set out Rule 322(2) and said that the respondent had fully evidenced the underlying enquiry which led to her conclusion that the application for leave to remain was without merit and no contrary case had been put by the appellant. He concluded that the respondent had discharged the burden of proof upon her to demonstrate that false representations had been made, and dismissed the appeal.
7. The appellant sought permission to appeal which was granted by Judge Holmes on 15th December 2016. Judge Holmes said that it was arguable that the judge had overlooked the content of documents, filed by the appellant on 21st October 2015, which were on the Tribunal file, to which no reference was made. They were relevant to the appellant's explanation for what had occurred in previous applications and his evidence that he was not guilty of any deception.
8. I have checked the file but I cannot find the documents to which Judge Holmes was referring. Nevertheless they clearly were there.
9. At the hearing Mr Sanugondla provided the determination from Judge Mailer, promulgated on 23rd July 2012.
10. Judge Mailer said at paragraph 4 of the determination
(a) "At the hearing on 1st June 2012 Mr Colombo, (the Presenting Officer), at the outset stated that he was not seeking to uphold the respondent's refusal on that ground. No evidence has been submitted. Accordingly the respondent has failed to discharge the burden of proof resting on her on the balance of probabilities.
11. Mr Tufan sensibly acknowledged that this determination made it clear that there was no basis upon which he could argue that the refusal under paragraph 320 should stand. He simply observed that it was probably not before the decision-maker.
12. Be that as it may, the judge clearly erred in law. He either failed to have regard to relevant evidence in the file before him or, if due to administrative error it was not, by making a mistake of fact. It is quite clear that from 2012, the respondent was no longer making an allegation of deception.
13. The determination is therefore set aside.
14. Mr Tufan did not seek to argue anything other than the appeal ought to be allowed. The following decision is therefore substituted.
15. The appeal is allowed.
Notice of Decision

The appeal is allowed.

No anonymity direction is made.

Signed Date 26 January 2017

Deputy Upper Tribunal Judge Taylor