Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23469/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28th March 2017
On 30th March 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

AMM HUMAYUN
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms O Ukachi- Lois, Counsel, instructed by JS Solicitors
For the Respondent: Mr C Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Bangladesh born on 24th June 1985. He arrived in the UK in 2006 with entry clearance as a student. He had leave to remain in this capacity until January 2013. He then applied to remain as a Tier 1 entrepreneur migrant, but this application was refused on 4th June 2015. His appeal against this decision was dismissed on all grounds by First-tier Tribunal Judge Chana in a determination promulgated on the 5th May 2016.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Shimmin on the basis that it was arguable that the First-tier judge had erred in law in not addressing the appellant’s grounds challenging the document verification report (DVR).
3. The matter came before me and in a decision sent to the parties on 18th January 2016 (appended as Annex A to this decision) I found that the First-tier Tribunal had erred in law. The remaking hearing was adjourned to today’s date at the request of the respondent.
Evidence & Submissions - Remaking
4. The respondent relies upon the refusal letter dated 4th June 2015 in which the application was refused because the Bank Asia Limited letter submitted by the applicant in support of his application to remain as a Tier 1 (entrepreneur) Migrant is said to have been verified as false and therefore to justify a refusal under paragraph 322 (1A) of the Immigration Rules, and to mean that the appellant also was awarded no points under Appendix A for Attributes (access to acquired funds, funds held in a regulated financial institution and funds disposable in the UK). The appellant was granted the necessary points for English language and maintenance but due to lack of points did not qualify under paragraph 245DD (a) of the Immigration Rules. The respondent relies upon emails which she says confirm that the certificate and bank statement are fake.
5. Mr Clarke did not have these emails but they had been sent to me by the previously responsible Presenting Officer, Mr Nath, and I provided him and Ms Ukachi-Lois with copies. The evidence was simply the original email evidence dated 8th March 2015, although there was also an explanatory email to Mr Nath which explained that the reference number in the subject line of the email was the CID number of the appellant’s business partner, not a bank account number, and that DVR in the respondent’s bundle with the name “Khaled Hossain” was not part of the evidence of fraud in this case. Mr Clarke accepted that the evidence was limited and he was in difficulties, and there was nothing in response to the later letters of 10th March 2016 and 23rd March 2017 from Asia Bank Ltd.
6. The appellant argues that the respondent has not produced sufficiently strong evidence to satisfy the Tribunal on the balance of probabilities that his documentation is false, and thus refuse his application. He relies upon a letter from Bank Asia Ltd dated 10th March 2016 which states that the bank statements and letter from the Progoti Saroni /Sharoni/Sarani Branch in Dhaka are genuine and authentic, and that this bank had no contact with anyone trying to verify these documents. It is argued that the various spellings of the branch name are not relevant as this is due to transliteration from another alphabet. The appellant also relies upon a letter from Bank Asia dated 23rd March 2017 which states that the two spellings, Sarani and Soroni have been used, and that Soroni is the currently preferred transliteration. This letter also explains that the logo on the bank headed paper has recently changed slightly. Evidence from the internet about the existence of this bank branch with different transliterations (Soroni/ Sharoni and Sarani) is also produced.
7. The appellant also argues that the email on which the respondent relies appears to have been received before the email seeking the verification was sent (it was sent at 3.15pm and received at 09:31 on the same day), and gives no reasoning for this anomaly.
8. Ms Ukachi-Lois submitted that in the context of this evidence the respondent had not met the burden to show that the appellant had submitted false documents with his application.
9. I informed the parties that I accepted the submission of Ms Ukachi-Lois, and set out my reasons below. Both parties accepted that the appropriate course for me to take was to allow the appeal on the basis that the decision was not in accordance with the law as a full assessment of the Tier 1 application had not been completed by the respondent.
Conclusions - Remaking
10. The appellant was refused under paragraph 322(1A) of the Immigration Rules on the basis he had submitted false documents in the form of a false Bank Asia Limited letter and statements. The burden of proof is on the respondent to show on the balance of probabilities that this is the case. I find that the respondent has not done this when the evidence before me is considered in its entirety for the following reasons.
11. The email evidence provided by the respondent gives no reasoning whatsoever for the conclusion that the documents are not genuine, simply stating: “ certificate and bank statement both are fake”. The status of the person confirming this is not known and the email itself does not include the bank account details and the appellant’s name, although the email chain does make it plain that the correct documents were sent to the checker. The respondent has not explained the fact that the email response would appear to have been issued before the enquiry was sent. The respondent has also not dealt with the subsequent evidence from Bank Asia Limited dated 10th March 2016 which denies that checks were made with them, or that they issued a statement that the documents are fake, and supports the documents being genuine. The appellant has also produced evidence that shows different spellings of the place of this particular Bank Asia branch (Sharoni/Sarani/Soroni) are common on official websites and also explained the change in headed paper for Asia Bank Ltd dated 23rd March 2017, thus supporting the appellant’s evidence being genuine.
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal
3. I re-make the decision in the appeal by allowing it to the extent I find that the decision is not in accordance with the law for the reasons set out above and thus that the respondent must take a new, lawful, decision on the appellant’s claim to remain as a Tier 1 (entrepreneur) migrant.

Signed: Fiona Lindsley Date: 28th March 2017
Upper Tribunal Judge Lindsley

Fee Award Note: this is not part of the determination.
In the light of my decision to re-make the decision in the appeal by allowing it, I have considered whether to make a fee award. I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals. I have decided to make no fee award because I was not asked to make one by the appellant, and subsequent evidence produced at appeal was needed to support the appellant’s case and for him to succeed in his appeal.

Signed: Fiona Lindsley Date: 28th March 2017
Upper Tribunal Judge Lindsley

Annex A – Error of law Decision

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Bangladesh born on 24th June 1985. He arrived in the UK in 2006 with entry clearance as a student. He had leave to remain in this capacity until January 2013. He then applied to remain as a Tier 1 entrepreneur migrant, but this application was refused on 4th June 2015. His appeal against this decision was dismissed on all grounds by First-tier Tribunal Judge Chana in a determination promulgated on the 5th May 2016.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Shimmin on the basis that it was arguable that the First-tier judge had erred in law in not addressing the appellant’s grounds challenging the document verification report (DVR).
3. The matter came before me to determine whether the First-tier Tribunal had erred in law
Submissions
4. In the grounds of appeal it is contended that the First-tier Tribunal has erred in law in finding that the respondent has proved the appellant had used deception and thus was entitled to refuse the application. This is because it is said that the evidence in the DVR was insufficient to rationally reach such a conclusion because the DVR firstly contained no information as to which bank statement and certificate were sent to the bank to be checked and no reference to the appellant’s bank account number. Secondly because in emails the respondent refers to an account number ending in 12 when the appellant’s account ends in 22. Thirdly one of the respondent’s emails refers to verifications for Bangladesh Commerce Bank when the appellant’s bank is Bank Asia. Fourthly on the face of it the response from the bank was received at 9.31 when the email was sent on the same day at 3.15pm. There is no evidence this was 9.31pm. The decision of the First-tier Tribunal errs for failure to deal with these faults which were identified in the DVR evidence in submissions by the appellant. The decision also errs because improper matters were held against the appellant which included: firstly, that the branch name Sarani was misspelt as Sharoni although this name may not have a particular correct spelling in the Roman alphabet; and secondly it was contended that the logo of Bank Asia was not the same one as the bank had used in 2012 absent any evidence that the logo had been retained as the same.
5. In the Rule 24 notice the respondent contends that the First-tier Tribunal records the correct burden and standard of proof at paragraph 10. She clearly recorded the appellant’s submissions on the bank account numbers and the misspelling at paragraph 7. It was open to the First-tier Tribunal to have reached the conclusion that the appellant had used deception relying in part upon the misspelling and an inconsistency regarding the logo at paragraph 18.
6. At the hearing Mr Nath drew my attention to the fact that in addition to the points raised by the appellant he felt obliged to point out that the DVR was in fact on the face of it about a man called Khaled Hossain (see page E1 of the respondent’s bundle), and this was not the appellant’s name. He accepted that this alone made the reliance on the document by the First-tier Tribunal problematic.
7. Mr Nath submitted that if I found an error of law that he wanted the re-making of the appeal to be adjourned so that the Secretary of State could reconsider the decision. Ms Ukachi-Lois wanted the matter to remain in the Upper Tribunal for re-making as she did not want the matter to be delayed any further by a remittal to the First-tier Tribunal. I indicated that I would be finding an error of law given the lack of reasoning by the First-tier Tribunal in their decision. It was agreed that the re-making should remain in the Upper Tribunal with the hearing adjourned to the first available date before me after one month. Mr Nath said this would provide sufficient time for the respondent to consider all the criticisms of the DVR evidence identified and to adduce evidence about the correct logo for Bank Asia if an argument based on a wrong logo was pursued.
Conclusions – Error of Law
8. I found that the First-tier Tribunal had erred in law by not providing sufficient reasoning for relying upon the DVR given the name on that document was not that of the appellant; and also by failing to provide reasons for reliance on the DVR in the light of their being no explanation as to why the First-tier Tribunal felt that the correct bank account had been checked given the apparent difference between the number of the bank account checked on the DVR and the number of the appellant’s bank account, this latter issue having clearly been raised by the appellant’s representative as it is recorded at paragraph 7 of the decision.
Decision:
1. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
2. I set aside the decision
3. I adjourn the remaking of this decision to the first available date before me after one month.
Directions
1. If either party wishes to adduce further evidence about the veracity or otherwise of the Bank Asia Limited bank letter and statements this must be served on the other party and filed with the Tribunal 7 days prior to the adjourned hearing date.

Signed: Fiona Lindsley Date: 17th January 2017
Upper Tribunal Judge Lindsley