Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16279/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th October 2016
On 26th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

MRS AMMARA CHOUDHARY
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Patyma, Counsel for Pavandeep Bassi, Middlesex
For the Respondent: Mr Nath, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan born on 23rd August 1985. She appealed against the decision of the Respondent dated 20th April 2015 refusing her application for further leave to remain in the United Kingdom as a Tier 2 (General) Migrant and for a biometric residence permit. The appeal was heard by Judge of the First-tier Tribunal Kelly and dismissed under the Immigration Rules in a decision promulgated on 4th April 2016.
2. An application for permission to appeal was made and permission was granted by Judge of the First-tier Tribunal Hollingworth on 2nd September 2016. The permission states that it is arguable that the findings made by the judge should have led to the conclusion that the Respondent's decision was not in accordance with the law given the extent of the available evidence. The judge heard the argument that the matter should be referred back to the Secretary of State for reconsideration with a view to having the Secretary of State give the Appellant 60 days' notice. The judge found that that was an entirely discretionary matter and he could not direct the Secretary of State to make such a decision. The permission states that given the arguability of whether or not the decision was taken in accordance with the law, the question of the exercise of discretion would flow from a review of the totality of the facts made on the basis of the available evidence. The permission states that the judge's findings, set out at paragraph 13 could have led to the exercise of discretion in the issuing of a 60 day notice despite the fact that this may well not be the corollary of the conclusion that the decision was not in accordance with the law.
3. There is a Rule 24 Response which states that the judge properly considered the issues, finding that the Appellant submitted an application which contained a COS which was not genuine. The Appellant claimed that she was duped by an agent but the judge noted that in circumstances such as these there was no remedy available to the Appellant and the Secretary of State was under no obligation to consider granting the Appellant 60 days to find another COS. The response states that these events are completely outside the Secretary of State's remit.
The Hearing
4. Counsel for the Appellant submitted that the original decision by the Respondent was not in accordance with the law. She submitted therefore, that this claim should have been remitted back to the Secretary of State.
5. I was referred to paragraph 13 of the decision in which the judge accepts that the Appellant was duped and acted in good faith. The judge then states that the difficulty for the Appellant is that that does not take her very far in these proceedings as she does not seriously question or put in issue the authenticity of the Certificate of Sponsorship. It was not authentic.
6. Counsel submitted that the refusal letter refuses the application under Section 322(1)(A) of the Immigration Rules. The judge states that false documents were submitted so the Appellant used deception. Counsel submitted that the Appellant contacted the Home Office as soon as she found out that the Sponsor was duping her and so the Respondent's decision cannot be in accordance with the law.
7. I was referred to the Rule 24 Response and Counsel submitted that because of the Appellant's quick action in this case, when she found out about the fraud, the decision issued by the Respondent cannot be lawful. Because of this I was asked to remit this case back to the Respondent. I was asked to take into account the serious effect if this Appellant has a Section 322(1)(A) finding against her. She will be unable to make a new application. I was referred to the skeleton argument and the case of AA (Nigeria) [2010] EWCA Civ 773.
"In any event it would be most unfortunate if, merely because of an entirely innocent misrepresentation, an applicant had to leave the United Kingdom under a decision of the Secretary of State which stated, as the decision in the case of Mr A has stated, that 'You have used deception in this application.'"
8. She submitted that if this claim is remitted back to the Home Office it is not known what the Home Office decision will be but the decision in place is unsustainable and incorrect. I was referred to paragraphs 14 and 15 of the decision in which the judge states that it would not be competent for him to refer the matter back to the Secretary of State for reconsideration with a view to issuing the Appellant a 60 days' notice. The judge goes on to state that that is an entirely discretionary matter and he cannot direct the Secretary of State to make such a decision and in any case there is some doubt that such a decision would be made.
9. Counsel submitted that the purpose of Section 322(1)(A) which is a mandatory section, is to ensure that no applications are granted based on false documents but in this case the Appellant is no longer relying on the false document and the judge accepted that. She submitted therefore that paragraph 322(1) (A) does not bite and that no deception decision should have been made against the Appellant.
10. Counsel submitted that when a decision is made which is not in accordance with the law it should be remitted back to the Secretary of State.
11. I was referred to the case of A [2010] EWCA Civ 773 which deals with the meaning of false representations and the words "whether or not to the holder's knowledge" in the Rules. This case refers to applications which suffer from an innocent misrepresentation and this case was remitted back to the Secretary of State.
12. I was referred to the case of UKUS [2012] UKUT 00307 which deals with discretion and decisions which are not in accordance with the law. Counsel submitted that the Respondent reached an unlawful decision in this case and because of that the Appellant's application remains outstanding awaiting a lawful decision. It is for the Tribunal to determine whether the Respondent is required to make a fresh and lawful decision. Counsel submitted that there was no dishonesty by the appellant in this case. She submitted that the Respondent's policy relating to false documents should not be held against the Appellant as this is an Appellant who was duped and this is accepted by the judge.
13. The Presenting Officer made his submissions submitting that at paragraph 13 of the decision the judge states "The Appellant does not seriously question or put in issue the authenticity of the Certificate of Sponsorship. It was not authentic. The Respondent was thus correct to refuse the application. The decision was a lawful one." I was asked to consider the refusal letter at page 2 which states that the COS has been found not to be genuine.
14. I was referred to the cases referred to by Counsel. The Presenting Officer submitted that these deal with unlawful decisions but the judge in this case does not find that the Respondent's decision is unlawful. At paragraph 15 the judge states that it would not be competent for him to refer the matter back to the Secretary of State for reconsideration. He states that the Secretary of State has no obligation to consider a further 60 day period.
15. The Presenting Officer submitted that the judge has set out everything properly in his decision and there are no other issues which require to be taken into account. The judge accepts that the decision is lawful and he submitted that there has been no competent basis suggested by the Counsel which would enable a judge to deal with this appeal and remit the application back to the Secretary of State.
16. Counsel for the Appellant submitted that for the judge to state that the decision is lawful is a contradiction of his previous finding that the Appellant was duped by the agent. I was asked to find that there is a material error of law in the judge's decision.
Decision and Reasons
17. Paragraph 322(1)(A) states that an appellant's leave has to be cancelled 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)".
In this case a false document was supplied apparently without the appellant's knowledge. This is properly covered in paragraph 322(1)(A). The judge is aware of this and it is based on this that he has found the respondent's decision to be lawful and has made his decision.
18. The judge is aware of the letters the Appellant wrote to the Respondent. Although her letters were not sent by recorded delivery her solicitor's letters were. At paragraph 5 of the decision it is noted that the Appellant's solicitor stated that the Appellant had faced threatening behaviour towards her from her employers, Montana Bakery, but the Appellant's evidence is that she never worked at Montana Bakery. This may be a credibility issue or just an error by the solicitor as the Appellant stated that the threatening behaviour was by the agent and not Montana Bakery. The appellant did not declare that she was using an agent at the time she submitted the application.
19. The judge refers to the submissions of the respondent at paragraph 8 of the decision. He states that the authenticity of the Certificate of Sponsorship was not put in issue by the appellant. She has admitted that it was not genuine. Credibility issues were raised and the respondent referred to the appellant's lack of consistency, the late production of bank statements and her solicitor saying she was in employment.
20. This is a points-based application. The Appellant did not attain sufficient points as the Certificate of Sponsorship was not genuine. At the First-tier hearing the representative accepted that the Certificate of Sponsorship was not valid. At paragraph 13 the judge accepts that the Appellant was duped and acted in good faith but in the same paragraph the judge states the Respondent was correct to refuse the application and that the decision was a lawful one. This is not a contradiction when the wording of Rule 322(1)(A) is considered. At paragraph 16 the judge states that the Secretary of State exercised her discretion appropriately. There has been no competent basis suggested by the Appellant which would have enabled the judge to allow the appeal or refer the matter back to the Secretary of State for consideration.
21. The judge's decision is clear. He finds that the Respondent's decision is lawful; he finds that discretion has been exercised appropriately; he finds that the Respondent was correct to refuse the application so he has dismissed the appeal. He was entitled to these findings.
22. With regard to the serious effect on the appellant if she has a section 322(1) (A) finding against her, the refusal letter makes it clear that any future applications by the appellant for entry clearance or leave to enter the UK can be submitted one year after the day on which the Appellant leaves voluntarily provided she does leave voluntarily at her own expense.
Notice of Decision

There is no material error of law in the judge's decision and the decision by First-tier Judge Kelly promulgated on 4th April 2016 must stand.

This appeal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge I A M Murray 26th October 2016