Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA /21748 /2015

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Determination Promulgated
On 19th July 2016
On 3rd August 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
G A BLACK

Between

THE SECRETARY OF STATE FOR the HOMe DEPARTMENT
Appellant
And

MISS NUSURAT JAHAN
Respondent

Representation:
For the Appellant: MS J ISHERWOOD (Home officer presenting officer)
For the Respondent: MR S KAMAL (Legal representative - Immigration Solutions ltd)

DECISIONS AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the decision and reasons promulgated by the First-tier Tribunal (Judge Anstis ) ("FTT") on 15th January 2016 in which the appeal under Tier 1 was allowed. I shall refer to the parties as "the Secretary of State" who is the appellant in this matter and to "the Claimant."

Background

2. The Claimant is a citizen of Bangladesh. On 10 December 2012 she made an application as a Tier I entrepreneur which was refused on general grounds by the Secretary of State on the 26th May 2015 on the grounds that she had used deception by submitting false documents (a TOIEC certificate and bank statements from BRAC bank) under paragraph 320(7B) of the Immigration Rules.

3. The Claimant entered the UK in 2009, with leave under Tier 4 and thereafter was granted leave to remain under Tier 4 until 7.2.2013. The refusal concluded that the Claimant used deception in her application made in December 2012 and in the current Tier 1 application.

4. The FTT [29-33] concluded that the Claimant had not used deception and allowed the appeal. It found that the evidence relied on by the Secretary of State was inadequate and it preferred the evidence produced by the Claimant as to the authenticity of the bank statements relied on. Further the FTT [34-42] found that the Secretary of State failed to discharge the burden of proof that the English language test result was obtained by deception using a proxy taker.

5. The grounds of application for permission argued that the FTT failed to give adequate reasons for rejecting the evidence produced by the Secretary of State to verify that the bank statements were false. Further that the FTT applied an impermissibly high standard of proof in determining the deception issue as to the TOIEC.

6. Permission to appeal was granted by FTJ PJM Hollingworth on 10th June 2016 on the basis of the grounds put forward.

Submisssions

7. Ms Isherwood expanded on the grounds of application for permission. She relied on the recent decisions regarding ELTS of Qadir v SSHD [2016] UKUT 229 (IAC) and followed by Shehzad [2016]EWCA CIV 615. She submitted that it had now been held that the generic evidence relied on by the Secretary of State was capable of meeting the first evidential burden to show deception and that the Claimant thereafter faced the burden to give an innocent explanation. The FTT erred by failing to follow this approach.

8. Mr Kamal submitted that the FTT properly considered the evidence before it as to deception and found that the verification evidence was insufficient to meet the standard of proof, on the balance of probabilities. The FTT had given full reasons for preferring the Claimant's evidence. As to the ELTS it was open to the FTT to consider the evidence before it as each case was fact sensitive. The FTT heard evidence from the Claimant who was cross examined and she had produced her degree certificate. Mr Kamal further submitted that the transitional arrangements applied tests taken prior to 1st July 2014.

Discussion and conclusion

9. The FTT considered the appeal specifically focusing on the two allegations of deception [3]. It set out the correct burden and standard of proof in the decision and reasons at [28, 33 & 41] including reference to the need to furnish cogent or strong evidence which the Tribunal would subject to anxious scrutiny. I find no basis in the argument that the FTT applied an impermissibly high standard of proof.

10. The FTT engaged in a detailed assessment of the evidence produced by both parties as to the authenticity of the bank statements relied on. The FTT preferred the evidence of the detailed letter from the branch Manager to the email relied on by the Secretary of State, which it found to be brief in the extreme and failed to answer the question raised in the verification process. In short the email states that the documents "were not issued by our branches". Having regard to all of the evidence and applying the civil standard I am satisfied that the FTT's approach was properly open to it and that there is no error of law established. The FTT gave detailed reasons for why it relied on the letter and found considerable shortfalls in the Secretary of State's enquiries. There was no proper document verification report produced.

11. Turning to the issue of the ELTS this appeal was decided prior to the cases relied on by Ms Isherwood. I accept that the law is now as per Qadir and Shehzad to the extent that the generic evidence is capable of discharging the evidential burden on the Secretary of State and that thereafter the burden falls onto the applicant to show an innocent explanation in which case the Tribunal will engage in a fact specific analysis. I am satisfied that there was an error on the part of the FTT in finding that the evidential burden had not been established by the Secretary of State. The FTT considered the evidence from Ms Collings and Mr Millington [34-36] referred to as "the generic evidence " and disregarded it because it concluded that it failed to specifically identify the Claimant. This was an error as there was sufficient evidence to show that the test purportedly taken by the Claimant had been identified as invalid. However, I now consider whether that error is material to the outcome of the appeal. The FTT also took into account the Claimant's own evidence [37-38]. The FTT concluded that there was no significance in the Claimant having taken the test in Birmingham and it was open to the FTT to conclude that any hesitancy could be ascribed to difficulty in recollection of events [38]. The FTT was clear in that its approach was to look at the specific facts and evidence in the appeal and to reach a conclusion accordingly. The Claimant gave oral evidence and relied on her witness statement together with her educational qualifications including her degree certificate, which were not disputed, which the FTT took into account in concluding that there had been no deception. The FTT in effect followed the second and third stages set out in Qadir as to the burden and standard of proof and I am satisfied that the findings of fact show an innocent explanation and thereafter the Secretary of State failed to show deception was used. Accordingly I find no material error of law.

Decision

12. There is no material error of law disclosed in the decision which shall stand. The Secretary of State's appeal is dismissed.

No anonymity order made nor requested

Signed Date 1.8.2016

GA Black
Deputy Judge of the Upper Tribunal

No fee award

Signed Date 1.8.2016

GA Black
Deputy Judge of the Upper Tribunal