Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12091/2015

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 14th October 2016
On the 2nd November 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR ANIL KUMAR ARMOOR
(Anonymity direction not made)
Claimant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal

Representation:
For the Claimant: No attendance (letter from solicitors)
For the Respondent: Mr Walker (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Raymond promulgated on the 27th April 2016, in which he allowed the Claimant's appeal against the Secretary of State's decision to refuse him further leave to remain as a Tier 4 (General) Student Migrant upon the Points Based Scheme.
2. At the appeal hearing, no-one attended at the appeal on behalf of the Claimant. However, the Claimant's Solicitors Messrs Westbrook Law had sent a letter dated the 4th October 2016 to the Upper Tribunal, which arrived at the Upper Tribunal on the 5th October 2016, stating that "further to the Notice of Hearing letter dated the 27th September 2016, please note we do not have further instruction in this matter. Client informed our office that he leave the United Kingdom". That letter was considered by Upper Tribunal Judge Gill, who stated that "the appeal before the Upper Tribunal is the appeal of the Secretary of State. Furthermore, you have not clearly stated in your letter whether Mr Armoor has already left the UK or whether he has merely expressed an intention to do so. In such circumstances, Upper Tribunal Judge Gill has decided that the hearing of the Secretary of State's appeal will proceed on the 14th October 2016". No further correspondence was received from Westbrook Law or from the Claimant in response to the reply given by Upper Tribunal Judge Gill.
3. However, given that the appeal is the Secretary of State's appeal, even taking account of the letter received from Westbrook Law, it is appropriate for the appeal to proceed, and I therefore continue with the oral appeal hearing on the 14th October 2016, despite the fact that no-one was present on behalf of the Claimant, either in terms of the Claimant himself or in terms of his solicitors, given the letter that had been received. I did not consider that it was in the interests of justice to adjourn the case in light of the contents of the letter that indicated that the solicitors were no longer instructed, and it may be that the Claimant either was intending to leave or had already left the country.
4. Within the Grounds of Appeal, it was argued that the Judge had given weight to immaterial matters and that the burden of proof was on the Claimant to demonstrate that he met the requirements of the Immigration Rules and that the Claimant had failed to satisfy that burden. It was stated that paragraph 6 and 7 of the determination outlined the Claimant's inconsistencies in explaining why he had failed to declare his previous refusal on his application form and that the Claimant was an educated individual who admitted that a third party had completed his application form on his behalf and that he had signed the declaration without checking the form himself. It is argued that the Claimant did not qualify for further leave to remain having been refused under paragraph 322(1A) of the Immigration Rules and that the Claimant did not deny the issue. It is argued that the Judge erred in law by allowing the Claimant's appeal and that the appeal should have been dismissed. Permission to appeal was therefore sought.
5. Permission to appeal has been granted by First-tier Tribunal Judge Mark Davies on the 9th September 2016, in which he stated that "the Judge appears to have totally ignored the requirement that the burden of proof is upon the Respondent, on the balance of probabilities, to show that the Appellant made false representations. The Judge has made no findings whatsoever in relation to whether false representations were made. The grounds and the decision do disclose an arguable error of law".
6. It was on that basis that the case came before me in the Upper Tribunal.
7. In the appeal hearing before the Upper Tribunal, Mr Walker, Senior Home Officer Presenting Officer on behalf of the Secretary of State, quite properly conceded that he was in difficulty arguing the Grounds of Appeal, given the findings of First-tier Tribunal Judge Raymond at paragraph 10 of his decision and in light of the Court of Appeal case of A (Nigeria) v The Secretary of State for the Home Department [2010] EWCA Civ 773, being the relevant authority in respect of the construction of the term 'false misrepresentation' for the purposes of paragraph 322(1A) of the Immigration Rules. He conceded that given the Claimant's past history, namely that he had studied all the time that he had been in the country, it was difficult to see what he would gain by deliberately making a false representation on his application form and that it appeared to him that whoever had drafted the Grounds of Appeal had not taken account of the Court of Appeal case of A (Nigeria). He conceded that there was nothing in fact in the Grounds of Appeal which were in fact arguable as a material error of law. Further, in respect of the grant of permission, Mr Walker further quite properly conceded, that even though the Judge had said that the burden of proof was on the Claimant on the balance of probabilities, rather than the burden being on the Secretary of State, that although that was an error, it could not amount to a material error of law, given that if anything, the Judge had placed too high a burden on the Claimant, by not reflecting the fact that the burden was on the Secretary of State to prove that deception or dishonesty was involved in respect of the false representations.
My Findings on Error of Law and Materiality
8. In light of the concessions quite properly made by Mr Walker on behalf of the Secretary of State in this case, I do not accept that there are any material errors in the decision of First-tier Tribunal Judge Raymond. In his application form the Claimant had stated that there were no previous refusals, whereas entry clearance had been refused in Chennai on the 24th February 2010. The Judge quite properly set out the evidence given by the Claimant in his statement in respect of this error at paragraph 6, and the oral evidence given by him in this regard at paragraph 7 of the decision. However, in respect of his findings, in respect of this error on the application form, First-tier Tribunal Judge Raymond at [10] of the decision, found that:
"Despite the somewhat convoluted explanations of the Appellant, and that his level of education suggests that he would have been well able to complete the form himself, it is surprising that he could have deliberately made such a costly mistake, because as Mr Mannan argued, it is difficult to see what he could have gained by it, as his CAS and maintenance were in order, and he would have been within the 5 years which is generally the cut off point for students, having entered in October 2010. In the circumstances, I consider that he should be given the benefit of the doubt as to a simple error having occurred, whether made by himself or someone else completing the form".
9. First-tier Tribunal Judge Raymond therefore made a specific finding that the error on the application form was a simple error, rather than being as a result of any deception being utilised on the part of the Claimant.
10. Paragraph 322(1A) of the Immigration Rules states that leave to remain in the United Kingdom is to be refused:
"(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application".
11. The meaning of false representation for the purposes of paragraph 322(1A) was conceded by the Court of Appeal in the case of A v The Secretary of State for the Home Department [2010] EWCA Civ 773. The Court of Appeal found specifically that "dishonesty or deception is needed, albeit not necessarily that of the applicant himself, to render a 'false representation' a ground for mandatory refusal" under paragraph 322(1A) at paragraph 76 of the Judgment, went on to state at paragraph 77, in the decision of Lord Justice Rix, that "if it were otherwise, then an applicant whose false representation was in no way dishonest would not only have suffered mandatory refusal but also be barred from re-entry for 10 years if he was removed or deported".
12. In this case, First-tier Tribunal Judge Raymond has specifically found at paragraph 10 of his Judgment that the Claimant should be given the benefit of the doubt as to a simple error having occurred, whether made by himself or someone else completing the form and therefore has considered whether or not there was dishonesty or deception utilised and found specifically that there was not. The fact that the form contained an error did not amount, in the absence of dishonesty or deception, to a false representation for the purposes of paragraph 322(1A) and in such circumstances the Judge was perfectly entitled and correct to allow the appeal under the Immigration Rules, given his findings. Such findings were open to him on the evidence.
13. In respect of the grant for permission to appeal by First-tier Tribunal Judge Mark Davies, in which he found that the Judge appeared to have totally ignored the requirement that the burden of proof is on the Secretary of State, on the balance of probabilities to show the Claimant made false representations and that the Judge had made no findings whatsoever in relation to false representations were made, I find that the Judge has made findings as to whether or not the false representations were made, and specifically stated that this was a simple error in paragraph 2 of his Judgment. It therefore could not amount to a false representation, given the interpretation of that phrase from the Court of Appeal in the case of A (Nigeria). The Judge has considered the issue and simply found that it was a simple error whether made by the Claimant himself or someone else completing the form.
14. Further, although the Judge has seemingly erred in simply stating that the burden of proof is on the Claimant to the civil standard of the balance of probabilities, and has failed to recognise that as far as deception or dishonesty is concerned, the burden of proof will be on the Secretary of State, on the civil standard of the balance of probabilities, to establish that deception or dishonesty was utilised, as was conceded by Mr Walker on behalf of the Secretary of State, that could not amount to a material error of law, given that if anything, too high a burden was placed upon the Claimant, in terms of placing the burden on him, rather than the Secretary of State. In such circumstances, even if the Judge had noted that the burden was on the Secretary of State to prove dishonesty, the decision would inevitably have been the same. The fact that the Judge therefore wrongly stated that the burden was on the Claimant in respect of the false representations and did not note that the burden was on the Secretary of State to prove dishonesty, does not in the circumstances of this case, amount to a material error of law.
15. In such circumstances, as properly conceded by Mr Walker on behalf of the Secretary of State, the decision of First-tier Tribunal Judge Raymond does not disclose any material error of law, and the decision of First-tier Tribunal Judge Raymond is maintained. The Secretary of State's appeal is dismissed.
Notice of Decision
The decision of First-tier Tribunal Judge Raymond does not disclose any material error of law and is maintained. The Secretary of State's appeal is dismissed.
No anonymity direction is made, no such Order having been sought before me, and no such Order having been made by the First-tier Tribunal.

Signed
R F McGinty
Deputy Upper Tribunal Judge McGinty Dated 14th October 2016