Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: IA/24076/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision and Reasons Promulgated
On September 30, 2016
On October 05, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE alis

Between

MISS ANTELLE MADUGU
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Mr Salam (Legal Representative)
Respondent Mr Bates (Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant, citizen of Nigeria, applied on January 21, 2013 for leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant. The respondent refused her application on June 8, 2015 and took a decision to remove her under section 47 of the Immigration Asylum and Nationality Act 2006.

2. The appellant appealed on June 22, 2015 under section 82(1) of the Nationality, Immigration and Asylum Act 2002.

3. The appeal was heard by Judge of the First-tier Tribunal Cox (hereinafter referred to as "the Judge") on December 10, 2015 and in a decision promulgated on December 30, 2015 he refused her appeal under both the Immigration Rules and ECHR.

4. The appellant appealed that decision on the ground the Judge erred in his approach to both paragraph 322(1A) HC 395 and ECHR. Permission to appeal was granted by Judge of the First-tier Tribunal Osborne on June 10, 2016.

5. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I make no order now.

SUBMISSIONS ON ERROR IN LAW

6. Mr Salam submitted that the Judge erred in applying paragraph 322(1A) HC 395. Mr Salam referred to the respondent's own guidance and AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 and submitted that unless the appellant was shown to have acted dishonestly the Judge should not have refused the application under this Rule. Additionally, the Judge's approach to paragraph 276ADE and article 8 ECHR was flawed because he assessed risk on return with reference only to employment as against the general risk on risk on return.

7. Mr Bates submitted that the Rule and the Tribunal in AA were consistent. The Rule and the Tribunal made clear that the submission of a false documents, regardless of whether the appellant knew, meant a mandatory refusal under the Rules. As regards the issue of safety the Judge noted the appellant had concerns over her safety in paragraph [38] of his decision but was aware she had family members and access to funds. She had never raised a protection claim and the Judge correctly dealt with the appellant's claims in paragraph [42] of his decision.

8. I reserved my decision.

DISCUSSION AND FINDINGS

9. At the original hearing the respondent raised a preliminary issue namely the use of a false document. Although the Judge accepted the false document had not been submitted by or with the knowledge of the appellant he nevertheless found that he had to refuse her application under paragraph 322(1A) HC 395.

10. Both representatives referred me to the Rule itself, the guidance and the Tribunal decision of AA.

11. Paragraph 322(1A) HC 395 makes clear that leave to remain 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."

12. The Rule and the respondent's guidance make it clear that an application must be refused where false documents have been used whether or not to the applicant's knowledge.

13. Mr Salem emphasised that the document was not submitted by the appellant but by an agent who had been paid to submit the application.

14. However, this approach was rejected by the Court of Appeal in AA because it found that even where the appellant was not guilty of dishonesty the appellant would be caught by the words of Paragraph 32(1A) which made it clear that the dishonesty could be with or without the Appellant's knowledge.

15. Subsequent to the hearing I received further submissions from the appellant's representative. The argument advanced in that letter were similar to those advanced before me. A further decision of Ahmed (general grounds of refusal - material non-disclosure) Pakistan [2011] UKUT 00351 (IAC) was submitted. However, this is a false representation case whereas the Judge in this appeal was dealing with a false document case. The fact the document is false is the important point in such a case. This is emphasised in the relevant IDI and Rix LJ made clear in AA that the mere fact that a dishonest document has been used in an application is sufficient for there to be mandatory refusal under 322(1A). This is consistent with the ratio in AA that 'false' requires dishonesty. As Rix LJ made clear, the false document itself is dishonest. A false document is therefore different from a false representation. A false representation may simply be a mistake and does not tell a lie about itself in the way that a false document does. It follows in accordance with this analysis that it is not necessary to go further and determine whether or not a document accepted to be dishonest in itself, was used dishonestly or innocently.

16. I therefore reject Mr Salem's submission on this point.

17. The second part of Mr Salem's submission related to the appellant's approach to the safety of the appellant if she were returned.

18. In his submission he raised issues under both paragraph 276ADE and article 8 ECHR.

19. The appellant's claim had to be brought under paragraph 276(vi)ADE HC 395 because the appellant was over the age of eighteen and had been here for less than twenty years. The appellant had to show very significant obstacles to her reintegration to Nigeria. This is a higher test to meet than a claim under article 8 but ultimately the Judge had to consider the same factors with the only difference being the appellant had to meet a higher test under the Rules.

20. The Judge considered the issues from paragraph [33] onwards of his decision.

21. Mr Salem submitted that the Judge failed to give enough consideration to conditions the appellant would face on return.

22. I have reviewed the bundle of documents submitted to the Tribunal including the appellant's witness statement. No concerns were raised in the statement and no documents suggesting the appellant would not be safe was submitted in the bundle.

23. The appellant must have mentioned some concerns over her safety because the Judge makes reference in paragraph [38] to the appellant's concern that it would not be safe for her to return to her home area in Northern Nigeria but she submitted no evidence to support such a claim. The fact she stated she felt it would not be safe does not mean the Judge has to accept her claim especially where no evidence was submitted.

24. The appellant had to demonstrate that there were "very significant obstacles" to her return and she failed to produce any evidence that would back up this claim and the Judge was therefore entitled to reject the appellant's claim that she satisfied this part of the Immigration Rule.

25. The Judge considered article 8 and whilst the grounds of appeal and Mr Salem raise issues over the Judge's approach to safety, the decision must be looked at on the evidence submitted, The appellant clearly raised issues over her ability to work and to live in an area where she had no connections but the Judge noted that she had access to funds and this would enable her to look for work.

26. The grounds of appeal argue the Judge should considered further safety issues but in the absence of evidence to suggest she would not be safe I find it would be wrong to criticise the Judge. Mr Salem submitted that troubles were well known but the Judge would be criticised if he went on a trawl of the internet to look for evidence and if course if he did then no doubt one or other party would have taken issue with such an exercise.

27. I therefore find there was no evidence to support Mr Salem's submission that the Judge failed to consider the issue of safety for the simple reasons that no such evidence was presented save for the appellant's own claim she would not be safe in her area. The Judge clearly considered a return to the city and those concerns would have no relevance.

DECISION

28. There was no material error. I uphold the Judge's original decision to dismiss the appellant's appeal under both the Immigration Rules and article 8 ECHR.

Signed: Dated: October 05, 2016

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT

FEE AWARD

The appeal was dismissed and no fee award was made.

Signed Dated: October 05, 2016

Deputy Upper Tribunal Judge Alis