Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24183/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th November 2016
On 20th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

miss Udara Ruwanrasi Silva Hembadura
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Aslam, Counsel, instructed by Farani Javid Taylor Solicitors LLP
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka born on 23rd January 1991. The Appellant had appealed against the Respondent's decision dated 15th June 2015 to refuse to vary by extension her existing leave to remain in the United Kingdom as a Tier 4 (General) Student. That appeal originally came before Designated First-tier Tribunal Judge Manuell sitting at Richmond on 7th March 2016. The appeal was heard on the papers. In a Decision and Reasons dated 5th April 2016 the Appellant's appeal was dismissed.
2. On 14th June 2016 Grounds of Appeal were lodged to the Upper Tribunal. On 24th October 2016 Designated First-tier Tribunal Judge McCarthy granted permission to appeal. Judge McCarthy noticed that it was arguable that Judge Manuell inverted the burden of proof when deciding whether the allegation of forgery was proven.
3. On 16th November 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. That response contends that the First-tier Tribunal Judge was aware of the burden being on the Respondent. However, it was argued that it was incumbent upon the First-tier Tribunal Judge to consider whether the Appellant met the Rules and it was asserted that the judge had rightly found that she did not. Consequently it was argued that it could not be established that a different decision could have been reached.
4. It is on that basis that the appeal comes before me to determine initially whether there is a material error of law. The Appellant appears by her instructed Counsel, Mr Aslam. The Secretary of State appears by her Home Office Presenting Officer, Mr Bramble.
Submissions/Discussion
5. Mr Bramble adopts a very helpful and pragmatic approach to this appeal in that he accepts that there is an error in the judge's approach to the burden of proof. He notes that it is highlighted that there is no information available from the Secretary of State as to how the allegation of forgery is maintained and that whilst he has an email chain he does not know why this was not before the First-tier Tribunal Judge and in any event it is heavily redacted and he wonders how much, if any, weight could be given to it. On the basis that the failure by the Secretary of State to adduce further evidence was not before the Tribunal he is not certain how far, if at all, it would be appropriate for him to try and make further submissions.
6. Mr Aslam relies on paragraph 5 of the Grounds of Appeal.
The Law
7. Areas 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 fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
8. 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. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
9. The way to address this appeal is to look initially at the approach adopted by the judge. The judge was to a certain extent under a disadvantage as he was dealing with this matter on the papers. He has stated at paragraph 6:
"Although there was no evidence produced to support the Respondent's allegations of forgery, the Appellant had chosen to respond by a bare denial, itself unsupported. Indeed, the Appellant has taken no active interest in her appeal, surprising in view of its importance. The Tribunal infers that the Respondent would not make such a serious allegation without proof and that such proof exists. With reluctance, and considerable hesitation, the Tribunal concludes that the forgery allegation is made good, by the narrowest of margins."
10. The burden of proof is upon the Respondent and whilst the judge has correctly directed himself that no evidence had been produced to support the forgery allegation he nonetheless held that that allegation was made out. He did this on the basis that the Appellant had responded by a bare denial, itself unsupported, and that the Tribunal inferred that the Respondent must have had proof to make the allegation. I am satisfied that in so proceeding the judge misdirected himself in that he failed to direct himself or consider that the burden of proof means just that and that the Respondent must prove the allegation, a matter which necessarily requires evidence. Whilst acknowledging that the Appellant's failure to attend any hearing will not have assisted the fact that the Appellant has not produced evidence is irrelevant if there is no case for her to answer. In such circumstances there is a material error of law in the decision of the First-tier Tribunal Judge and I set aside that decision.
The Remaking of the Decision
11. The above matters are all conceded by Mr Bramble. Thereafter he goes on to enquire as to the correct approach that the Tribunal would be best to adopt. I take the view that it is appropriate for the Tribunal to go on and remake the decision today. The suggestion that there was a redacted email chain which is to be found on the Secretary of State's file is a matter I give little weight to. I do not know why any documents were not before the judge and I do not know whether they would have been of any benefit. I do not, however, consider it is appropriate for such documentation to be adduced in evidence. In such circumstances the position remains that there is no evidence before the Tribunal to show that the finding of forgery is remotely sustainable. On such basis the Appellant must succeed in her appeal and the appeal is consequently allowed under the Immigration Rules.
Decision

The Appellant's appeal is allowed under the Immigration Rules.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris