Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23467/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
14th December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MD MAHBUB AHMED SIDDIQUE NAHID
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr S Hosein, Legal Representative

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectivelybefore the First-tier Tribunal). The appellant, Md Mahbub Ahmed Siddique Nahid, was born on 22 July 1987 and is a male citizen of Bangladesh. He appealed against the decision dated 11 June 2015 refusing his application for leave to remain as a Tier 1 (Entrepreneur) Migrant and to remove him from the United Kingdom. The First-tier Tribunal (Judge Haria), in a decision promulgated on 23 June 2016 allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. There was one ground of appeal. There was no Presenting Officer at the hearing and the Secretary of State now challenges the decision on the basis that the judge admitted in evidence a letter dated 17 March 2016 purportedly from AB Bank which the judge accepted confirmed that the particulars of a bank account in Bangladesh which the appellant claimed to hold were genuine.
3. The judge preferred that evidence to evidence adduced by the respondent in the form of an email chain which appeared to indicate that the "submitted documents ... are not genuine".
4. The judge set out the text of both letters in the decision [23] and [25]. Mr Duffy, for the respondent, submitted that the judge had not have considered the weight of which should properly be attached to the respondent's evidence diminished by reason of the redaction of names in the email chain. That submission falls outside of the grounds of appeal and simply argue that, in the absence of the Presenting Officer, the judge should of his own motion have adorned the appeal to allow the respondent to verify the second letter adduced in evidence by the appellant. In any event, I am not persuaded that the judge has rejected or attached little weight to the respondent's evidence simply on account of the fact that names are redacted.
5. At [32] the judge correctly stated that the burden of proof in relation to the alleged deception rested on the respondent. It was plainly open to the judge to find that the respondent had not discharged that burden.
6. I do not read the judge's decision as indicating that the redaction of names from the emails indicated that the evidence adduced by the respondent was in any way dubious. The point made by the judge is that the email chain contained insufficient information to "connect them to the appellant or the bank account details provided by the appellant in his application" [24].
7. As regards the letter from AB Bank dated 17 March 2016, it was plainly open to the judge to admit this in evidence. The Secretary of State's chose not to be represented at the hearing before the judge. It was not for the judge, in the absence of a Presenting Officer, to adjourn the hearing for the letter to be verified; by not being represented at the hearing, the Secretary of State must have known that she took the risk that the Tribunal would admit evidence regarding which she would be unable to make any submissions.
8. Mr Hosein, who appeared for the appellant at the Upper Tribunal hearing, also made the valid point that, in the months since the promulgation of the First-tier Tribunal decision, the respondent has taken no steps to seek verification of the letter dated 17 March 2016.
9. However, that is not the end of the matter. The refusal of the appellant's application dated 12 June 2015 cites only the alleged deception on the part of the appellant as a reason for refusing the application; there has been no analysis whatever by the Secretary of State of the merits of the application including the application of any "genuineness" test. Both advocates agreed that, whatever the outcome of the appeal before the Upper Tribunal, the matter would have to be returned to the Secretary of State to take a decision on the merits of the application.
Notice of Decision

The appeal is allowed

No anonymity direction is made.

Signed Date 10 December 2016

Upper Tribunal Judge Clive Lane