Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18355/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 9 October 2013
On 23 October 2013
Decision given orally at the hearing

Before

THE HON. Mr JUSTICE COLLINS SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE LATTER

Between

KEMAL ZOREL
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Miss V Laughton, Counsel, instructed by VC Legal (UK)
For the Respondent: Miss H Horsley, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is an appeal against the dismissal by the First-tier Judge of the appellant's application under the Ankara Agreement seeking to establish business here. The business in question was as a self-employed Turkish guitar tutor and musician to operate in Ipswich. Suffice it to say that the Secretary of State and the Immigration Judge both took the view that he did not qualify on the necessary requirements to meet the rule on essentially, putting it broadly, financial grounds. We need not go into that because leave to appeal is very limited.

2. It was also asserted and indeed there is no question but that it was the case that false documents were produced by this appellant in making his application. His claim was that he was not aware of the falsity of the documentation since essentially he had relied upon an agent and so the judge had to consider whether he was indeed aware. The reason for that was that as the rules stood in 1973 which is the date in question it was necessary for an applicant to have been aware of the falsity of the documentation in order to justify refusal on the ground, which of course is an additional ground, that deception had been used. The position now is different inasmuch as the mere fact that false documentation had been used is by itself capable of being determinative whether or not the individual in question was aware of the falsity.

3. The judge directed himself correctly that the burden of proof was on the respondent to establish that false documents had been submitted and he said, again correctly, that the standard of proof remained the same, that is to say the balance of probabilities. But he referred specifically to a decision of this Tribunal in NA (Pakistan) [2009] UKAIT 00031. He then went on to consider the evidence. So far as material he referred to the distinction between the current Rules and those applicable in 1973 and it had to be shown that in the light of an applicant's character, conduct or associations it was undesirable to permit him to remain. He then dealt specifically with whether he found that the appellant was aware of the facility and having said that he may well have been helped by an adviser or friend but he had a chance to consider and that the Secretary of State was aware that he had submitted false documents and had tried to cover up his actions.

4. The judge went on:

"He was in my view clearly aware that false documents were submitted in support of his visa application and it does him no credit whatsoever to now claim firstly, that he used an agent and secondly, that he did not know what documents the agent submitted. I regret to say that I simply do not believe him and in these circumstances it is clear that his character and conduct is entirely reprehensible and I cannot see on what basis any discretion could be exercised in his favour. There was no need for the appellant to submit these false documents considering the rather delicate nature of his application for entry clearance ."

5. The submission made and the only ground on which leave to appeal was granted was that there was a failure by the judge to direct himself correctly as to the standard of proof and Judge Freeman who granted permission to appeal picked this up by referring to a passage in NA in which the Tribunal said that having noted that Lord Hoffmann in Re: B (Children) [2008] UKHL 35 had emphasised the seriousness of the consequences did not require a different standard of proof, that is different from the balance of probabilities,

"We do accept that for the respondent to satisfy us he has discharged the burden of proof on him on a balance of probabilities he would in the context of this type of case need to furnish evidence of sufficient strength and quality and he and the Tribunal would need to subject it to a critical, anxious and heightened scrutiny."

6. Judge Freeman said "I have never managed to follow the reasoning in this passage if Re: B is to be treated as binding as it must." And he said that the correctness should be considered.

7. With the greatest respect to Judge Freeman, we see no distinction which can properly be drawn between the approach that Lord Hoffman was indicating to be correct and the explanation of that approach set out in NA.

8. The reality is that, though illogical to some extent, there is a spectrum to be applied in considering whether a matter is established on the balance of probabilities and the more serious the matter that has to be established is the more cogent has the evidence to be and higher as it were in the spectrum of the balance. Thus where dishonesty is to be established it is clear that there must be, and the judge must approach it on the basis that he believes that there is rather more cogent material which leads him to the conclusion.

9. It is true that the judge did not say in terms in the decision that he was adopting that approach but it is perfectly clear in our view from what we have cited from his reasoning that he did take the view that it was clear that the appellant was indeed fully aware of the falsity of the documentation. So far as the evidence is concerned, not only are we not surprised at that conclusion but we think that that conclusion was inevitable on the material that was before the judge.

10. Of course this appeal would have been dismissed in any event because of the failure to comply with what we have called the financial requirements but it was appropriate in our judgment that it was also refused on the basis of the knowing use of deception. It follows that this appeal is dismissed.

Signed Date

THE HONOURABLE MR JUSTICE COLLINS