Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23486/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2016
On 6th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Secretary of State for the Home Department
Appellant
and

SYED SHOAIB ABBAS ZAIDI
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr I. Jarvis, Senior Home Office Presenting Officer
For the Respondent: Ms S. Haji, counsel instructed by Marks & Marks Solicitors

DECISION AND REASONS

1. The Respondent, to whom I shall refer to as the Claimant, is a national of Pakistan, born on 16 December 1991. On 15 June 2015, he was refused leave to remain in the United Kingdom as a Tier 4 (General) Student, with reference to paragraph 322(1A) of the Immigration Rules on the basis that the Respondent believed that he had submitted false documents. He appealed to the First tier Tribunal. Following a hearing which took place on 15 March 2016, Judge of the First tier Tribunal Swinnerton allowed the appeal in a decision promulgated on 1 April 2016, on the basis that she was not satisfied with the checks carried out by the Secretary of State in relation to the allegation of false documentation, nor that that evidence adduced was sufficient to support the allegation that the Appellant submitted false documentation in connection with his application. The evidence in question comprised emails dated from 21 May 2014 to 29 May 2014 from the manager of UBL Shaheen to the Secretary of State, which state that the letter and bank statement are both bogus, however, the email does not specifically identify the letter or the bank statement.

2. The Secretary of State sought permission to appeal to the Upper Tribunal on 12 April 2016. The grounds in support of the application asserted that the FTJ materially erred in law for failure to give adequate reasons. Whilst the emails do not make express reference to the letter and bank statement, it is quite apparent that the subject reference throughout the email chain is the same. Permission to appeal was granted by First tier Tribunal Judge Heynes in a decision dated 25 August 2016 on the basis that: "it is arguable that the Judge gave inadequate reasons for placing no weight on the emails since they all contained the same subject number."

Hearing

3. At the hearing before me, Mr Jarvis sought to rely upon the ground of appeal and the grant of permission on the basis that there was before the Judge a series of emails from R Booth of the Fraud team of the Home Office. He accepted that the subject reference was numeric and that there were redactions but that there are sensible reasons why personal details are redacted. He submitted that the evidence was sufficient to justify the Secretary of State's decision to refuse the application with reference to paragraph 322(1A) of the Rules.

4. On behalf of the Claimant, Ms Haji submitted that the Judge at [48] clearly states that the initial assertion by the Secretary of State has not been made out and at [46] that there was clearly insufficient evidence in that the emails do not specifically identify the letter or bank statement alleged to be bogus. The Judge at [45] was not satisfied with the checks carried out by the Secretary of State and she was entitled to make that finding on the basis of the emails produced. The first email was sent to Karachi but received no response. Although it would have been simple to find out who sent it, there is no evidence of checks to confirm that it was the manager who sent the email. Given that the burden of proving dishonesty is upon the Secretary of State, she was required to do more to discharge that burden. Ms Haji reminded me that the refusal decision was made 14 months later. The evidence before the Judge is that the Claimant's father had closed this bank account having transferred the money. In response to a question from the Tribunal as to the
date the account was closed, she drew attention to the affidavit from the Appellant's father which states 28 days after statement to send to the Claimant in the United Kingdom. The affidavit further states that the account has been closed and the Claimant's father had not been able to get evidence of a closed account, despite contacting the branch manager in Karachi and at Head Office, which begs the question of what checks the manager in the emails was able to carry out.

5. In response, Mr Jarvis submitted that the question was a public law one viz is there a sufficient explanation for matters materially in dispute? He submitted that [48] of the decision has no substance to it whatsoever and that,
if the Judge is going to do lawful justice to the case, the Judge in public law terms had to resolve in detail why the email chain was not enough to show that the account was bogus. The Secretary of State does not know why the emails are not enough. The standard of proof is the balance of probabilities. The Judge had to explain why it was not enough for a manager to say that in terms that the account does not exist in our branch and both documents are bogus. He submitted that there was clear evidence of deception. What the Judge had to do, but failed to do, was lay out the competing arguments on both sides and decide whether the affidavit for the father and the evidence stood up to scrutiny and explained why it was not enough.

Decision

6. The Judge's conclusions on the material issue are as follows:

"46. I note that the e-mail sent at 10.34 am on 29.5.14 from the manager at UBL Shaheen to the Home Department stated that the letter and the bank statement are both bogus. That email does not specifically identify the letter or the bank statement which are alleged to be bogus.

47. The e-mails making up the DVR are dated from 21.5.14 to 29.5.14 and have been provided today in connection with an application made on 16.4.14 and refused on 15.6.15.

48. Having looked at the documents in this case with care, I am not satisfied with the checks carried out by the Secretary of State in relation to the allegation of false documentation. I do not find that the evidence adduced by the Home Department is sufficient to support the allegation that the Appellant submitted false documentations in connection with his application."

7. However, the Judge does not set out the content of the emails nor explain why she is not satisfied with the checks carried out by the Secretary of State nor why she did not find the evidence adduced on behalf of the Secretary of State was sufficient to support the allegation that the Claimant submitted false documentation. The Judge does not address or make findings in respect of the evidence on behalf of the Claimant, as to whether or not his father closed the bank account and if so, when.

8. Whilst the redacted emails from United Bank Limited do not specify in terms which letter and statement of account are bogus, the case reference number corresponds with that used by the Claimant in his correspondence with the Home Office [13 of his bundle refers] and that contained in the originating email from R Booth of the Fraud Team, who also gives the same bank account number as that contained in the affidavit from the Claimant's father. The fact that there is consistency throughout the documentation is not addressed by the First tier Tribunal Judge.

9. I find that Judge of the First tier Tribunal Swinnerton erred materially in law in allowing the appeal, on the basis that she failed to engage fully with the evidence submitted by both parties and make clear findings upon that evidence.

10. I allow the appeal by the Secretary of State for the Home Department to the extent that the appeal is remitted for a hearing de novo before a different Judge of the First tier Tribunal, in order that the credibility of the Claimant can be assessed along with the evidence submitted by both parties.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

5 January 2017