Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23754/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 4 November 2016
On 18 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
ASEOBONG OMORO LARRY-ETTAH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Parkin of Highland Solicitors
For the Respondent: Mr A McVitie Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge S Alis promulgated on 4 March 2016 which dismissed the Appellant's appeal against a refusal of the Appellants application for leave to remain as a Tier 4 (General) Student under the Immigration Rules.
Background
4. The Appellant was born on 28 October 1992 and is a national of Nigeria.
5. On 29 July 2014, the Appellant applied for leave to remain as a Tier 4 Student.
6. On 4 September 2014, the Secretary of State refused the Appellant's application. The reason given was that on the basis of the bank statements that were submitted which were identified in the refusal letter the Appellant did not meet the maintenance requirements as set out in paragraph 245ZX(d) of the Rules.
The Judge's Decision
7. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Alis ("the Judge") dismissed the appeal against the Respondent's decision. The Judge found that the sole issue in the case was whether the Appellant had submitted his father's bank statement with his application for leave to remain as he asserted in which case his application should have been granted and his appeal succeed.
8. The Judge found heard oral evidence from the Appellant, copies of those documents in the Respondents bundle that they claimed were submitted with the application and subsequently returned to the Appellants last known address albeit he had moved without , as he was required, notifying the Respondent of his change of address and the Appellants bundle of evidence.
9. In reasons set at paragraphs 20 -26 the Judge set out the reasons why he was satisfied that the Appellant had not submitted the Access bank statement which was in his fathers sole name with his application and therefore the appeal failed.
10. Grounds of appeal were lodged arguing that the Judge failed to give adequate reasons for his decision and that the private life claim that was advanced in the grounds of appeal had not been considered.
11. On 9 August 2016 First-tier Tribunal Judge Osborne gave permission to appeal on both grounds.
12. At the hearing I heard submissions from Mr Parkin on behalf of the Appellant that:
(a) He acknowledged that there was more force in his argument under the Rules than Article 8.
(b) There was confusion in paragraph 23 in that there was a missing word or words and therefore it was not entirely clear what the Judge was saying.
(c) The Respondent did not produce evidence to show their system and what documents they had received. It was not enough to ask the court to draw an inference from the fact that his bank statement was not referred to in the refusal letter that it was not produced.
(d) At best the Respondents case was as consistent with them having lost the bank statement as the Appellant not submitting it.
(e) He relied on the caselaw set out in paragraph 11 of the grounds.
(f) The Judge failed to give weight to the Appellants own evidence.
13. On behalf of the Respondent, Mr Mc Vitie submitted that:
(a) This was a 'he said/she said' case where the Judge had to balance the evidence from both sides.
(b) The Appellant had produced no evidence of what he submitted to the Respondent as there was no evidence of any covering letter or identification of the documents in the application.
(c) The case was not analogous with Basnet (validity of application - respondent) [2012] UKUT 00113(IAC) as in that case the Appellant had produced evidence of what he provided in this case the Appellant had not.
(d) The Appellant bears the burden of proof and he had not satisfied the evidential burden of proving his case and he had not met that burden.
(e) Article 8 was not a good point as this was a student who had been in the UK for a very short period.
14. In reply Mr Parkin on behalf of the Appellant conceded that the decision was within the range of decisions open to the Judge but needed proper reasoning.
The Law
15. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
16. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged.
17. In MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal's decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.
Finding on Material Error
18. Having heard those submissions I reached the conclusion that the Tribunal made no material errors of law.
19. I will deal with the ground raised in respect of Article 8 as it seems to me that this was entirely without merit. While I accept that Article 8 was raised in very general terms in the grounds of appeal ('The appellant does enjoy his private life in the UK') this argument could not have been expected to succeed without more detailed and fact specific evidence. There was no skeleton argument in the Appellant's bundle and no evidence that related to anything other than his course of study. While of course the matter could have been addressed in more detail in the hearing I have read the Judges notes of the hearing and he notes that Mr Inoma who represented the Appellant there stated in his closing submissions 'No HR appeal.' This was a quite proper concession to make: the Appellant was in the UK as a student and had only been in the UK since 2013. He was in the UK for a temporary purpose as a student only for the period he could meet the requirements of the Rules. Had the Judge considered the matter outside the Rules he would have been statutorily required to attach little weight to the Appellants private life by virtue of the provisions of s 117B (5) as the Appellants status was precarious at the time that his private life was established. An appeal could not have succeeded on that basis and it is clear that this was acknowledged by the advocate who represented him in the lower court: it is not an error of law that another advocate thinks that the case should have been presented differently.
20. The Appellant entered the UK as a Tier 4 student and on 29 July 2014 submitted an application for further leave to remain as a Tier 4 student. His application was refused in a letter dated 4 September 2014 on the basis that he did not meet paragraph 245X(d) as he was not awarded the 10 points under the PBS Rules for maintenance. The Respondents case as set out in the refusal letter is that the Appellant submitted only a joint bank statement in his parents names ending ..2195 (Zenith) dated 31 July 2014, his own statements ending ?0387 (Zenith) dated 31 July 2014 and another in his name ?0444 (NatWest) dated 31 July 2014 and these taken together did not demonstrate sufficient funds for the full 28 day period on their own. The Appellant asserts that the Respondent failed to consider all of the evidence as he asserts that he also submitted a bank statement in his father's sole name ending ?9698 at the Access Bank which if taken into account with the other funds would have met the financial requirements.
21. The Judge properly identified that the issue in the case was whether the Appellant submitted the bank statement from Access Bank as he stated. He properly identified that the Appellant bears the burden of proving his case which was that he met the requirements of the Rules because he provided the mandatory evidence that he had the necessary funds.
22. The Judge considered what documentary evidence the Appellant produced to show that he had produced the required documents. The Appellant he found did not produce any covering letter with his application (paragraph 23) identifying what documentary evidence he was producing in support of his application which would of course have been helpful as the online application itself does not specifically identify the individual bank statements he had produced. Therefore there was nothing in the initial application process that supports the Appellants assertion that he provided a bank statement in his father's name.
23. The Judge found (paragraph 20) that the Appellant attended an interview to have his online application processed on 31 July 2014 and the Appellant accepted in his witness statement he was told that the bank statements he produced did not meet the maintenance requirements and there is nothing in his witness statement to suggest that he argued with this summary or suggested to the caseworker at this stage that he met the funding requirements which might be expected if, as he asserts, he had sent all of the necessary bank statements.
24. The Appellant also accepted that while the letter he received from the caseworker following this meeting referred specifically to a joint statement it made no mention of an account in his father's sole name. The Judge also noted that the Appellant provided a joint sponsorship declaration from his parents which the Respondent asserted was because the bank statement was in joint names.
25. The Judge found (paragraph 24) that the Appellant produced a copy of the statement from Access in his father's name but it could not have been the one he used as they post-dated the application.
26. I accept that paragraph 23 has not been proof read and there is a word, probably 'me' that was missed out but I am satisfied that the Judge was merely remaking that the bundle that was returned to the Appellant was of no assistance to the Appellant as he did not receive it as he changed address without notifying the Respondent. He also noted that the Respondent had, they said a copy of what the Appellant had sent in their bundle and of course this was reflected in the refusal letter. Any failings in this paragraph could not have made a material difference to the outcome of the case.
27. Mr Parkin argued that the Respondent bears the burden of proving how their system works on the basis of Basnet. I am satisfied that the burden of proof is on the Appellant to prove that he met the financial requirements of the Rules : he provided no evidence that he submitted the statement of his father and indeed all the evidence before the Judge pointed the other way: what happened at the interview, the joint sponsorship statement , no reference to the bank statement in any document originating from the Appellant or from the Respondent. I am satisfied that the ratio of Basnet was not that the Respondent always bears the burden of proving its system in every case. Also the facts were very different as it related to on line applications and how the procedure contrasted to a personal application. While in this case the application was online there was an interview in order to progress the application where the Appellant accepted in his witness statement that he was told that the bank statements he had produced did not meet the requirements of the Rules and therefore al of the bank statements he asserts were provided cannot have been before the caseworker. I note that paragraph 32 of Basnet in considering procedural fairness the court suggested
"In cases of a failure to collect the fee in an application made in time, there is prompt communication with the applicant to afford an opportunity to check or correct the billing data."
28. Thus I am satisfied that it would have been open to the Judge to find that he had the opportunity to address the issue of funding after the interview when the failure to meet the threshold was identified. There can be no suggestion he was treated unfairly.
29. Mr Parkin also relied on Kissule but this was a fact specific case before the High Court and does not bind me although I note that in that case that when told his application was defective (for want of a photograph) the Appellant it was accepted submitted an application including a photograph but was then out of time. In this case the Appellant was told at an interview that he did not meet the funding requirements and has not produced any evidence that he produced his fathers bank statement either before or in response to this information.
30. I remind myself of what was said in Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) about the requirement for sufficient reasons to be given in a decision in headnote (1) : "Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge."
31. I was therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
32. I therefore found that no errors of law have been established and that the Judge's determination should stand.

DECISION
33. The appeal is dismissed.

Signed Date 17.11.2016

Deputy Upper Tribunal Judge Birrell