Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24090/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 January 2017
On 17 January 2017

Before

DUPTY UPPER TRIBUNAL JUDGE MONSON

Between

Secretary of state for the home department
Appellant
and

MR MD RAYHAN UDDIN
(ANONYMITY DIRECTION NOT MADE)
Respondent/Claimant

Representation:
For the Appellant: Ms A Brocklesby-Weller, Specialist Appeals Team
For the Respondent/Claimant: Mr Tariq Bin Aziz

DECISION AND REASONS
1. The Secretary of State appeals from the decision of the First-tier Tribunal allowing the claimant's appeal against the decision to refuse to grant him leave to remain as a Tier 1 (Entrepreneur) migrant. The application was refused on general grounds and point-scoring grounds. The common basis for the refusal on these grounds was an assertion by the SSHD that the claimant had submitted false documents purportedly originating from Brac Bank Ltd dated 4 December 2012 relating to a purported bank account ending with the numbers 5005 held in the name of the proposed third party funder(s). The SSHD was satisfied that the documents were false because Brac Bank Ltd had confirmed that their bank records indicated that this account did not exist.
2. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the claimant requires anonymity for these proceedings in the Upper Tribunal.
Relevant Background
3. The claimant is a national of Bangladesh. On 13 December 2012 he applied for leave to remain as a Tier 1 (Entrepreneur) migrant. As evidence of access to funds, he provided a bank statement (C1) and a bank letter (C2) purportedly issued by Brac Bank Ltd, a bank whose head office is in Gulshan, Dhaka, Bangladesh. In the letter at C2, the bank certified that the claimant's uncle had 28.2 million BDT in his bank account which was available for investment in the United Kingdom by the appellant and his entrepreneurial team member, to whom the third party funder was related as a cousin.
4. On 19 February 2015 a member of the Home Office fraud team sent an email to Brac Bank Ltd. He said that he was making contact on behalf of the SSHD from the British Home Office with regard to the appellant. They had received numerous letters claiming to have been issued by "yourselves all in the same format". He was going to send a random sample of five. If these were issued "by yourselves" he would not bother sending the rest. But if they were false documents, he asked if it would be OK to send the other documents which they had. With respect to the appellant, the bank was asked to confirm the following details:
"Was the document submitted to the Home Office (see attached scanned copy) genuine / not genuine as issued?
Did the account number ending 5005 belong to Md Tofazzal Hossain Bablu, Fahiman Rahman?
What was the account balance as of 23/02/12- and if possible, the current balance too?"
5. On 22 February 2015 a representative of Brac Bank Ltd replied to the email. He stated as follows:
"For your kind information that following attached certificates and statements Not issued by our branches".
The Hearing before, and the decision of, the First-tier Tribunal
6. The claimant's appeal came before a panel of judges sitting at Hatton Cross on 15 June 2016. The panel consisted of Judge Mill and Judge Froom. Judge Mill wrote the subsequent decision.
7. Both parties were legally represented, and the panel had before them the evidence to which I have referred and the original of a copy letter which had been included in the appellant's bundle of documents received at Hatton Cross on 3 June 2016. The original was handed up at the hearing.
8. In a letter dated 28 April 2016, Mr Ariful Islam, Branch Manager at the Natun Bazar branch of Brac Bank Ltd in Dhaka, confirmed that the bank statements and letters issued to Mr Bablu and Mr Rahman by "our branch" were genuine and authentic. He had been informed by "our client" that a verification check was made by way of an email to some Associate Project Manager of their bank. But it was quite impossible for an Associate Project Manager to verify an account in a branch. The appropriate official to be able to verify an account was the Branch Manager. He had not received any verification email. The Associate Project Manager was not in a position to verify "my client's" (singular) personal account without his knowledge.
9. In the subsequent decision, Judge Mill reviewed the documentary evidence. He noted that the emails evidencing enquiries carried out by the Fraud Team had been redacted. He observed that full details of the emails were not available for scrutiny, although there was a reference to a sample of documents being attached to the email for analysis by the bank. However, the attached documents had not been produced and there was no evidence as to their content. Only two documents, the aforementioned items at C1 and C2, were relied upon by the SSHD in the appeal. Judge Mill noted that the response to the email enquiry dated 22 February 2015 was brief and "grammatically incorrect".
10. At paragraph [24], Judge Mill referred to the submissions which were made by the Presenting Officer about the documents at C1 and C2. He had "attacked the terms" of these documents. He drew attention to the fact that the bank statement summary at C1 did not have any phone or email number. He drew attention to the fact that there was a reference to a "last purge date" of 27.2.2011 and that the account opening date was given as 28.2.2011. The claimant was unable to explain this in his evidence:
"We do not find such criticisms to be material given the nature of the document. Such observations are merely neutral."
11. The Presenting Officer had attacked the letter reproduced at C2 with reference to the fact that the email address of the letter was not a personal one, although purportedly signed by the Bank Manager himself, but was a generic enquiry email address:
"We do not consider that that of itself seriously call the document into question."
12. The judge concluded at paragraph [26] that the nature and extent of the SSHD's enquiries were not extensive, and that the full nature and extent of the enquiries was not transparent. The lack of detail in the response from Brac Bank Ltd, "causes us to pause to consider carefully the weight which can be attached to it."
13. At paragraph [27], Judge Mill held that it was significant that the claimant had now produced a further up-to-date letter dated 28 April 2016, sent to him by his uncle. The original was produced at the hearing, and the document appeared authentic. The letter was executed by the same author as the letter of the document produced in support of the original application, reproduced at page C2 in the Home Office bundle.
14. At paragraph [28], Judge Mill summarised the panel's conclusions:
"The evidence relied on by the [Secretary of State] to refuse the [claimant's] application is not the best evidence. The Secretary of State has not discharged their duty to establish that the banking documents, which the claimant relies upon, are forged or false. Our view on this is supported by the terms of the up-to-date letter from Anwar Sedat, Branch Manager of Brac Bank Ltd. On balance we find the documents produced and relied upon by the claimant are genuine and the appeal succeeds accordingly."
The Application for Permission to Appeal
15. A member of the Specialist Appeals Team settled the SSHD's application for permission to appeal to the Upper Tribunal. He argued that the Tribunal had had inadequately explained how the final decision was arrived at. The relevance of the response being grammatically incorrect and brief was not clear. It was apparent from content of the enquiry sent to Brac Bank that the bank letter and statement mentioned in the refusal decision were attached to the email. The bank had confirmed that none of the documents attached to the verification check, which had clearly included those referred to in the refusal letter, had been issued by its branches. The Tribunal had observed at paragraph [27] that as a consequence of the copy email being redacted, it was not possible to identify the individual who stated that the account did not exist. But this should not have made any difference, as there was no doubt that the email had been received from Brac Bank, as the sender's email address confirmed this. Furthermore, the claimant was completely unable to explain the discrepancy surrounding the account opening date, and the SSHD had no opportunity to carry out a verification check on the latest letter from the Branch Manager which was produced at the hearing.
The Reasons for the Grant for Permission to Appeal
16. On 24 November 2016 Judge Hollingworth granted permission to appeal as it was arguable that the judges had attached insufficient weight to the claimant's inability to explain the matter referred to at paragraph [24] of the decision, and that also insufficient weight had been attached to the content of the original response from the banking question.
The Appeal Hearing
17. At hearing before me to determine whether an error of Law was made out, Ms Brocklesbury-Weller developed the arguments raised in the application for permission to appeal. In reply, Mr Bin Aziz submitted that the panel had given adequate reasons, and had reached a conclusion that was reasonably open to them on the evidence. He submitted that the decision to allow the appeal outright should not be disturbed although the SSHD had not applied her mind to the question of whether the appellant was, or remained, a genuine entrepreneur. The SSHD was not bound to grant the claimant leave to remain as a consequence of his appeal being allowed. Pursuant to paragraph 245DD(l), the SSHD retained the right to carry out an assessment of the genuineness of the application.

Discussion
18. Having carefully considered the relevant documentary evidence alongside the reasons given by the panel for finding in favour of the appellant, I find that a material error of law is made out. The panel has inadvertently deprived the SSHD of a fair hearing because they have not been even-handed in their approach to the documentary evidence relied on by the SSHD, as against the documents proffered by the claimant. The panel has not displayed the same anxious scrutiny to the claimant's documents as it has to the exchange of emails between the SSHD and Brac Bank. As a result, the panel has overlooked material matters, and the panel's assessment of the probative value of the evidence relied upon by the claimant is fatally flawed.
19. As I raised with the representatives at the hearing, there is a clear error in the following assertion at paragraph [27] of the decision: that the bank letter of 28 April 2016 was executed by the same author as the letter of the document reproduced at page C2 of the Home Office bundle. The signatory of the letter at C2 is Anwar Sadat. The signatory of the April 2016 letter is Ariful Islam. Mr Bin Aziz submitted that the panel were not in error, as Mr Islam was the Branch Manager of the same branch. However, Mr Sadat does not claim to be a Branch Manager of the same branch as the signatory to the April 2016 letter. The address given by Mr Sadat at the top of the letter is the Head Office address of the bank in Gulshan, Dhaka.
20. Not only does the letter at C2 have a different author, but the logo and format of the letter is significantly different from the April 2016 letter. In the letter at C2, the bank logo in the top left-hand corner has the word 'Limited' in different type appearing just under the word 'bank'. In contrast, the logo on the April 2016 letter does not have the word 'limited' under the word 'bank'. Moreover, the address is given at the bottom of the letter, whereas in the letter at C2 the address is given in the top right-hand corner.
21. As is apparent from the contents of the enquiry made by the Fraud Team, the concern which triggered the enquiry about the documents proffered by the claimant was a concern over the format of the documents. The panel has overlooked some glaring anomalies in the format of the documents at C1 and C2. Although purportedly issued contemporaneously, the bank logo at C1 is clearly different from the bank logo which appears on C2. The bank logo at C1 does not have the words 'limited' under the word 'bank'. Moreover, it is superimposed over other words, which are barely discernible. It is also apparent from the positioning of the bank authentication stamp on the far right-hand side of the document at C1 that this stamp has purportedly been applied to an incomplete document. For, aside from the stamp, all the writing on the far right-hand side of the page has been cut off.
22. These formatting anomalies were not highlighted in either the response of the bank, or in the refusal letter. This is entirely understandable, as the SSHD was entitled to proceed on the premise that it was sufficient to obtain confirmation from the bank that the documents were false, and it was not necessary to go further by explaining why they were false. But the fact that there was no exploration of the formatting anomalies in the refusal decision did not relieve the First-tier Tribunal of the obligation to give the documents anxious scrutiny in evaluating the probative value of the claimant's case in rebuttal.
23. There are also anomalies in the content of the documents at C1 and C2, some of which were relied upon by the Presenting Officer for the purposes of casting doubt on the credibility of the rebuttal evidence. As I discussed with the representatives at the hearing, there is an apparent inconsistency between the summary at the top of C1 with the information given in the body of C1. According to the summary at the top of C1, the opening balance in the joint account was 28.2 million BDT, and the closing balance in the account was also 28.2 million BDT. But this is not consistent with the detailed information given about transactions on the account. All the relevant transactions apparently took place on 23 February 2012. On that day, there were two withdrawals and one deposit. As the result of these withdrawals and deposits, the balance in the account changed on three occasions during 23 February 2012. At one point the balance was 28 million BDT, but on the two other occasions the balance was slightly higher or slightly lower. Read chronologically, the implication of the transaction details is that the closing balance was less than 28.2 million BDT.
24. The panel cannot be criticised for not addressing anomalies in content which were not relied on by the Presenting Officer. But in respect of the anomalies in content which the Presenting Officer did raise, I consider that the panel has not given adequate reasons for dismissing as "neutral" the apparent discrepancy between an opening account date of 28 February 2011 with a last purge date of 27 February 2011.
25. The lack of an even-handed approach is typified by the panel attaching adverse weight to the fact that the response from the bank is grammatically incorrect, while overlooking a significant grammatical error in the bank letter at C2: this is the use of the singular (as required by paragraph 41-SD of the Rules - see below), where the use of the plural is called for grammatically.
26. As confirmed by the panel at paragraph [19] of the decision, the Brac Bank documents which were submitted by the claimant to support his application relate to a joint account said to be held by his uncle and his aunt, Fahiman Rahman.
27. Although the funds are held in a joint account, the claimant's case was that his sole third party funder was his uncle. This is reflected in the fact that the third party letter is only signed by the appellant's uncle. It is not also signed by the appellant's aunt.
28. However, while the letter at C2 is expressed in the singular, as would be necessary for a single third-party funder, the letter makes continued reference to the appellant's aunt alongside the appellant's uncle. For example, the letter says:
"Md. Tofazzal Hossain Bablu, Fahiman Rahman has 200 thousand pounds ?. available for investment in the United Kingdom on deposit with this financial institution on this date of 4th December 2012."
29. There is also a table at the bottom of C2 which has in the first column the name of the third-party contributor (singular). However, the name of the third-party contributor is given as both the appellant's aunt as well as his uncle. On the other hand, the relationship to the two applicants is stated as being "uncle and cousin". Clearly, Mrs Rahman is not related to the appellant as his uncle.
30. Pursuant to 245DD(h)(iii), the SSHD must be satisfied that the money referred to in table 4 of Appendix A is genuinely available to the applicant, and will remain available to him until such time as it is spent for the purposes of his business or businesses. Since the funds relied on are held in a joint account, the funds belong to the appellant's aunt just as much as they do to the appellant's uncle, and prima face she is free to spend them as she wishes. If she is not a third-party funder, she is not bound by the declarations made in the specified documents provided with the application. Alternatively, if she is a third-party funder, then the requirements of paragraph 41-SD of Appendix A are not met, as her signature does not appear on the third-party declaration.
Future Disposal
31. As the SSHD has in effect been deprived of a fair hearing in the First-tier Tribunal, the appropriate course is for this appeal to be remitted to the First-tier Tribunal for a fresh hearing.
Conclusion
32. The decision of the First-tier Tribunal contains an error of law such that it must be set aside and remade.

Directions
This appeal is remitted to the First-tier Tribunal at Hatton Cross for a de novo hearing (Judges Froom and Mill not compatible).
None of the findings of fact made by the previous Tribunal shall be preserved.
I make no anonymity direction.

Signed Date

Judge Monson

Deputy Upper Tribunal Judge