Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22532/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination Promulgated
On 16 December 2016
On 20 January 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE DEANS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR ASHRAFUL AMIN BHUIYAN
Respondent

Representation:

For the Appellant: Mrs M O'Brien, Senior Home Office Presenting Officer
For the Respondent: Mrs F Farrell, Peter G Farrell, Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision by Designated Judge Murray allowing an appeal by Mr Ashraful Amin Bhuiyan (hereinafter referred to as "the claimant".

2. The claimant was born on 10 January 1978 and is a national of Bangladesh. On 28 September 2012 the claimant applied for leave to remain in the UK on the basis of 14 years' residence, asserting that he had been in this country since 1995. The Designated Judge considered the evidence of the claimant and a supporting witness, together with documentary evidence, and accepted that although the claimant was working illegally in the UK, he had demonstrated that he had been here at least since 1997.

3. At the hearing before the First-tier Tribunal the Secretary of State relied on a statement from HMRC to the effect that the claimant had made use of a National Insurance Number which did not belong to him and a PAYE reference which did not relate to any business. These numbers were used on the claimant's pay slips and on P45s produced by him. In relation to this issue the Designated Judge found that the Secretary of State had "not discharged the higher standard of proof required for paragraph 322(1A) to apply" and found in favour of the claimant. The Designated Judge concluded at paragraph 45 that she did not find that this claimant had tried to gain leave by deception by using false documents. He had been working illegally in the UK but he had been here for 14 years and was entitled to leave to remain on this basis.

4. The Secretary of State applied for permission to appeal contending that the Designated Judge had applied too high a standard of proof. The only higher standard of proof than the civil standard of the balance of probabilities was the criminal standard of beyond reasonable doubt. The judge erred in law by demanding a higher standard of proof in civil proceedings. Reference was made to Re B (children) [2008] UKHL 35. This matter affected the Designated Judge's credibility findings. If the claimant's employment history was found to be false he would not be eligible to qualify under the 14 year rule. In addition, the fact that HMRC had demonstrated that documentary evidence relied upon by the claimant was false attracted the mandatory operation of paragraph 322(1A) of the Immigration Rules so that the appeal was bound to be dismissed.

5. Permission to appeal was granted principally on the basis that it was unclear what standard of proof the judge had applied.

Submissions

6. At the hearing before us Mrs O'Brien, for the Secretary of State, submitted that the Designated Judge had applied a higher standard of proof than the balance of probabilities. Paragraph 322(1A) applied to false documents or false representations. The information given by HMRC showed that the National Insurance Number and the PAYE Reference used by the claimant were not genuine. Accordingly the claimant had relied upon false documents. This went against the claimant's credibility and should have led to the appeal being dismissed under paragraph 322(1A). Reference was made to the case of AA (Nigeria) [2010] EWCA Civ 773.

7. For the claimant, Mrs Farrell contended that a witness from HMRC should have been called to give oral testimony. It was pointed out, however, that no witness summons had been sought and no evidence had been produced indicating that the National Insurance Number or PAYE reference was genuine.

8. Mrs Farrell continued that the standard of proof was correct but the test of the balance of probabilities was towards the higher end of the spectrum. She also referred to the existence of evidential rules on the admission of evidence from official records.

9. It was noted that no rule 24 notice had been submitted. Mrs Farrell was asked if she had anything to add in relation to Article 8. She pointed out that the claimant had been in the UK for 20 years.

Discussion

10. We note that in the Secretary of State's bundle at F1-F2 there was a statement from an official of HMRC with regard to the National Insurance Number and PAYE reference used by the claimant. This statement is dated 18 May 2015 and signed by the official concerned. As already indicated, the statement records that the National Insurance Number used by the claimant does not belong to him and the PAYE reference used for employers for whom he claimed to have worked does not relate to any business.

11. Although the question was raised before us as to the admissibility of this document, we observe that although we must ensure that the principles of fairness are followed, we are not required to apply strict rules of evidence. The evidence provided by HMRC at F1-F2 was admissible and the Tribunal was entitled to have regard to it even without any witness to speak to it. Although the statement is headed "England and Wales only" and is on a form clearly used for the purpose of courts and tribunals in England and Wales, we do not consider that this detracts from the information provided in the form or the weight to be attached to it. The form appears to have been completed by an officer of HMRC working in Wales and therefore the form normally in use in that part of the UK has been provided.

12. So far as the standard of proof is concerned, we are satisfied on the basis of the decision of the House of Lords in Re B and the decision of the Inner House in Scottish Ministers v Stirton and Anderson [2013] CSIH 81 that there is only one standard of proof in a civil matter such as this and that is the balance of probabilities. The standard of proof does not change because there is an allegation of fraud or deception which is subject to proof. We find that the Designated Judge erred in law at paragraph 44 of her decision by making reference to a higher standard of proof than the balance of probabilities. This standard of proof applies not only to allegations of fraud or deception in general in civil proceedings but also in the specific context of paragraph 322(1A) of the Immigration Rules.

13. Paragraph 322 sets out grounds on which leave to remain and variation of leave to enter or remain in the UK must be refused. Subparagraph (1A) states that an application must be refused 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 or in order to obtain documents from the Secretary of State or a third party required in support of the application. In terms of AA (Nigeria), where reliance is placed upon false documents this will lead to mandatory refusal under paragraph 322(1A) even though the claimant may not personally have been aware that the document was false.

14. It is not disputed that the claimant relied upon pay slips and P45s submitted in support of his application to the Secretary of State which contained a National Insurance Number to which he was not entitled and a PAYE reference which did not relate to any business. The P45s are to be found in Annex G of the Secretary of State's bundle and the pay slips are to be found later in the same annex. These P45s and payslips are false documents which were submitted to the Secretary of State in relation to an application or applications for leave to remain. On this basis, the application which is the subject of the current appeal fell to be refused under paragraph 322(1A).

15. As we have already indicated, the Designated Judge erred in law by applying a higher standard of proof than appropriate in relation to the evidential burden upon the Secretary of State, who relied on the statement from an HMRC official at F1-F2. On the basis of the evidence before her, there is only one decision the Designated Judge could have reached on the appeal, which is that the refusal of leave to remain was mandatory under paragraph 322(1A) and on this basis the appeal should be dismissed under the Immigration Rules.

16. Having allowed the appeal under the Immigration Rules, the Designated Judge did not separately address Article 8, although this was addressed both in the Secretary of State's refusal decision and in the grounds of appeal. At the hearing before us Mrs Farrell submitted that the claimant had now completed 20 years' residence in the UK, but the finding made by the Designated Judge at paragraph 43 of her decision was that the claimant had been residing in the UK since 1997.

17. The application of the long residence provisions in paragraph 276ADE was addressed in the Secretary of State's refusal decision. It was pointed out in the decision that under paragraph 276ADE(1)(i), as the claimant submitted false documents with his claim he could not meet the suitability requirements. We note, however, that the relevant requirement, in S-LTR.2.2, is discretionary rather than mandatory, unlike paragraph 322(1A).

18. We observe that on the basis of the evidence before her the Designated Judge was satisfied that the claimant had been residing in the UK since 1997 and had been working here during the period since then, albeit illegally. We further observe that these findings are not necessarily vitiated by the Designated Judge's error in relation to the standard of proof in relation to the allegation of deception. Although it was submitted before us that the error would have affected the credibility of the claimant's evidence in respect of having worked in the UK, we do not accept that this necessarily follows from the use of a National Insurance Number to which the claimant was not entitled and the use of a false PAYE reference. We have not heard evidence from the claimant or from the other witness who was before the First-tier Tribunal and accordingly we do not conclude that the findings made by the Designated Judge in respect of the claimant's length of residence and illegal working should be set aside. Nevertheless, it is not disputed that the claimant was an illegal entrant and has throughout his residence in the UK been residing here unlawfully and working without permission. This may be relevant under section 117B(4) of the 2002 Act, in terms of which little weight should be given to a private life that is established by a person at a time when the person is in the United Kingdom unlawfully. We re-iterate, however, that we have not heard evidence as to the claimant's length of residence, which may be the subject of a further claim.

19. To conclude, the only decision under the Immigration Rules which was open to the Designated Judge when hearing the appeal in December 2015 was to dismiss the appeal as refusal of the application was mandatory under paragraph 322(1A).

Conclusions

20. The making of the decision of Designated Judge involved the making of an error on a point of law.

21. We set aside the decision.

22. We re-make the decision by dismissing the appeal.

Anonymity

No order for anonymity was made by the First-tier Tribunal. We have not been asked to make such an order and we see no reason of substance for doing so.

Signed Date

Upper Tribunal Judge Deans