Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26112/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 21 October 2016
On 25 October 2016

Before

Upper Tribunal Judge Southern

Between

SALAH UD DIN HAMMAD
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P. Saini, counsel instructed by Hanson Young & Co
For the Respondent: Mr S. Walker, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of Pakistan, appealed against decisions of the respondent, made on 5 June 2014, to refuse to vary his leave by way of the grant of further leave as a student and that he should be removed from the United Kingdom pursuant to section 47 Immigration and Asylum Act 2002.

2. Several reasons were given by the respondent for refusing the application. First, the respondent had been unable to verify the English language test certificate scores relied upon by the appellant which meant that no points were awarded for a Confirmation of Acceptance for Studies (para 245ZX(c)). Second, the application was refused under 245ZX(a), read together with para 322(1A), because enquiries of the issuing bank had established that a bank statement relied upon by the appellant was a false one. This meant, as a consequence, that the application was also refused under 245ZX(d) because, the bank statement being regarded as a false document, no points were awarded for maintenance (funds).

3. The position with regard to the English language test certificate may be summarised as follows. The appellant chose to take his test with Pearsons, who are approved by the respondent for that purpose. The requirement of para 245ZX(c) is that the appellant must have a minimum of 30 points under paragraphs 113-120 of Appendix A, which is concerned with "Attributes". Paragraphs 113-120 of Appendix A are concerned with Attributes for Tier 4 Students. Paragraph 118 of Appendix A provides that, for a person in the position of this appellant, no points will be awarded for the Confirmation of Acceptance for Studies unless he provides:

"the specified documents from an English language test provider approved by the Secretary of State for these purposes as listed in Appendix O?"

Appendix O is a table of approved test providers. In respect of Pearsons, it is made clear that what is required is:

"Printout of online score report

Scores must also be sent to the Home Office online"

4. Unfortunately, Although the appellant was able to log on to Pearson's web site in order to print out a copy of the test results to send with his application, Pearsons did not "assign" those scores to the Home Office so that, as it was explained in the refusal decision:

"The Pearson's website was checked on 5 June 2014, but your Pearson Test score(s) could not be verified through the Pearson's website at the time of consideration. Therefore, although you have provided an English language Test certificate from an approved English language test provider, as UKV&I has been unable to verify your English language test score your document cannot be accepted as evidence of your English Language ability."

5. The appellant had submitted two documents said to be issued by his father's bank in Pakistan in order to demonstrate that sufficient funds were available to meet the requirements of the rules. These were a bank statement and a letter from the bank confirming the closing balance shown on that statement and that the appellant's father "is maintaining his account with us to our entire satisfaction".

6. The respondent made an enquiry of that bank, asking for confirmation that the documents had indeed been issued by the bank. This generated a response by email that:

"It is to be informed that the document is fake as per our record."

7. An earlier decision of the First-tier Tribunal having been found to disclose legal error such as to require that it be set aside, the appeal came before First-tier Tribunal Judge Ievens on 14 January 2016. At paragraph 8 of his decision, the judge said:

"The issues in this appeal are whether the respondent can show, the standard being the higher end of the balance of probabilities, that the bank statement was false, and whether the appellant can show, to the balance of probabilities, that the English language test certificate and maintenance requirements were satisfied."

8. The judge, having directed himself correctly as to standard and burden of proof, reproduced paragraph 322(1A) of the Immigration Rules:

Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused

(1) ?

(1A) 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, or in order to obtain documents from the Secretary of State or a third party required in support of the application.

The judge then summarised the evidence offered by the appellant in support of his insistence that the bank documents were genuine. He said that his father had spoken to his bank and they had denied having received any verification enquiry or giving any information to the respondent.

9. The judge gave two reasons for reaching the conclusion that he could not regard the response from the bank as sufficient to establish that the bank documents were false. The identity of the author of emails from the bank had been redacted and the reference number given in the header of the email from the bank was not the same as the account number, which led the judge to say:

"I do not know what it refers to. I simply cannot trace from the evidence before me where the Home Office got their information from that this specific bank statement was false and accordingly I conclude that the respondent has failed to satisfy me, on the balance of probabilities, that the requirements of paragraph 322(1A) are met."

10. Addressing next the issue of the language test result, the judge appears to have accepted the appellant's evidence to the effect that the printout he himself created correctly represented his successful test results but found that the respondent was correct to refuse the application under the immigration rules. This was because those results could not be accepted unless validated online and as Pearsons had not assigned the results so that they could be checked by the respondent that could not be done. He noted that, having received the refusal, the appellant spoke with Pearsons who "put it right" immediately. The judge recognised that the result of the uncompromising requirement of the rules "might be thought to be harsh" but that was what was required and the appellant had, in any event, not produced any evidence from Pearsons to confirm that circumstances were as the appellant had described.

11. There was also before the judge an argument advanced that there would be an impermissible infringement of rights protected by article 8 of the ECHR if leave were not granted which he rejected. Realistically, Mr Saini did not pursue that challenge in his submissions before the Upper Tribunal.

12. The judge, therefore, allowed the appeal "on immigration grounds" under paragraphs 322(1A) and 245ZX(d) on the basis that the respondent had not discharged the burden facing her in establishing that the appellant had submitted a false document and therefore he had satisfied the maintenance (funds) requirement, but he dismissed the appeal under paragraph 245ZX(c) because the language test requirements had not been met and he dismissed the appeal also on human rights grounds.

13. Both parties sought and were granted permission to appeal by separate judges of the First-tier Tribunal.

Discussion:

14. It is convenient to deal first with the matter of the bank documents. That is because, if the judge was wrong to reject the respondent's case then the appellant cannot succeed even if he establishes that the respondent should have accepted his language test scores.

15. That is because the rules required that the test scores be capable of being validated by the respondent's online check. That had not been possible because Pearsons, for whatever reason, had not assigned the results to the Home Office. In his submissions, Mr Saini focussed on the respondent's own evidential flexibility policy, framed in terms that in some respects are more generous that the provisions concerning evidential flexibility in the rules themselves. The point is said to be that once the appellant had become aware of the failure of Pearsons to assign those results to the Home Office he contacted Pearson who, he said, had put matters right and then contacted the Home Office who, had they re-checked, would then have found that he had the scores claimed. Mr Saini submits that the evidential flexibility policy demanded that the respondent look again at the test results, once she was assured by the appellant that Pearson's error in not assigning the test scores had been rectified. But, the respondent's policy or guidance on evidential flexibility for points-based system applications includes this:

"You must refuse the application if it would fall for refusal even if the missing information was provided, or if a minor error was corrected. You must not request any missing information if it cannot change the decision on the case."

16. Therefore, if the judge was wrong to reject the respondent's case in respect of the bank documents, so that the application fell to be refused under paragraph 322(1A) and 245ZX(a), the evidential flexibility policy is, effectively, not engaged and the decision taken on 5 June 2014 must be accepted to be correctly taken under the applicable rules.

17. It is plain that the reasoning that led the judge to find that he could not rely upon the e-mail from the bank as establishing that the statement was a false document was based upon a fundamental misunderstanding of the facts and of the evidence before him. He was concerned that the reference number quoted by the bank when responding to the respondent's enquiry was not the same as the bank account number in question. He said that he did not know what it referred to and this led him to doubt the reliability of the information provided by the bank. However, the reference number quoted by the bank in responding was the same as the reference number given by the Home Office when making the enquiry and, unsurprisingly, the reference number in the Home Office enquiry was precisely that, the Home Office reference number allocated to the appellant's application, as can be seen from the refusal decision. It is wholly uncontroversial that a bank providing a response to an enquiry should quote in the response the reference given by the enquirer and so that is no basis at all upon which to doubt the reliability of the information given in the response.

18. There can be no doubt or ambiguity that the bank was providing a response to the original enquiry, that is made clear by the fact that the response quotes the Home Office reference number that could have been taken only from the enquiry made. That enquiry itself identifies the name and address of the branch where the account was maintained, the full name of the account holder, the appellant's father, Mr Salah ud Din Ansar, and the bank account number. As it is beyond doubt that the author of the response provided by the bank to the Home Office enquiry had those details to hand, as is evidenced by the quoting of the respondent's own reference number, there is simply no real scope to doubt that the answer delivered related to the account with which we are concerned.

19. Put another way, on the evidence it was simply not reasonably open to the judge to reach the conclusion he did and that is sufficient to establish that he has, therefore, made a material error of law. That error is reinforced by the fact that something he thought undermined the reliability of the bank's e-mail in fact added cogency to it. This conclusion, that the judge had made a material error of law so that the decision on the appellant's appeal would be remade by the Upper Tribunal, was communicated to the parties at the hearing on 21 October 2016 who were then invited to advance submissions to inform the remaking of the decision by the Upper Tribunal.

20. In his submissions Mr Saini sought to identify other concerns about the response from the bank. As the identity of the author has been redacted we do not know who that person is or from where the response was sent. That, submits Mr Saini, is significant because in Pakistan there are no central records and so it would only be someone actually based in the particular branch where the account was maintained that could speak authoritatively about it. Secondly, because the identity of the author of the bank e-mail has been redacted, we cannot see who that person is and so no judgment can be made as to the reliability of the information provided. Further, two documents were provided to the bank, the statement and a bank letter. However, the response in the email is expressed to be in respect of "the document" and so this raises doubt, in Mr Saini's submission, as to whether this response in fact relates to an enquiry as to the authenticity of two documents. Finally, the original enquiry made of the bank was on a form that provided space or fields for information in addition to that actually provided, such as the title of the account; the account opening date; the CNIC number and so on. As those fields were not addressed, the response is incomplete and unreliable.

21. In my judgment none of those submissions provides any reason to undermine the evidential weight of the confirmation by the bank that the documents were false. It is plain that the email is sent by an officer of the bank tasked to provide a response and there is no reason at all to suppose that the author was not authorised or properly able and resourced to do so. It is impossible to understand why an officer of the bank should certify as false a statement that he was not placed to verify. The fact that the identity of the bank official has been redacted does not deprive the communication of its authority as it can be seen that the communication was sent from an email account of "bankalfalah.com". There is no reason to regard the communication as undermined because of the reference in the singular to "the document". It is notable that in his decision the judge also referred to the bank statement rather than that document and the bank letter as an inseparable duet of documents. Finally, as the documents are confirmed to be false by the bank, it is impossible to see how the reliability of that confirmation can be considered to be undermined by a failure to provide confirmation of characteristics that would be ascertained had the account been genuine.

22. For all of these reasons it is unambiguously clear that the respondent was correct to regard this as evidence sufficient to discharge the burden of establishing that the appellant had submitted a false document. Paragraph 322(1A) is expressed in mandatory terms and so this was an application that was bound to be refused.

23. It follows from this that the appeal falls to be dismissed. For the reasons given above, once it is established that a false document had been submitted, refusal under 245ZX(d) follows also, as the appellant has failed to establish the availability of the funds required and the evidential flexibility policy falls away as the outcome could not be any different even if the respondent were to revisit the validation of the test results.

24. Although not pursued in oral submissions at the hearing, the grounds for seeking permission to appeal complained also that the judge erred in failing adequately to consider the position of the appellant outside the Immigration Rules. He has made a significant investment in his education in the United Kingdom. At paragraph 11 of his decision the judge observed:

"Because three of the colleges where the appellant had obtained admission had had their Tier 4 Sponsor licences revoked, one after the other, the appellant had lost a lot of money and he raised Article 8 of the Human Rights Convention in its private life aspect."

However, the judge dismissed the appeal on human rights grounds because he found that the public interest in maintaining immigration control in accordance with the Immigration Rules meant that any interference in the private life of the appellant, as manifested in his ambition to complete his education in the United Kingdom, was entirely proportionate to the legitimate aim being refused in refusing an application for the reasons given and making a decision for the appellant's removal from the United Kingdom. That conclusion is simply unassailable and I reach the same conclusion. This is an article 8 claim that on no legitimate view could succeed, especially given the reliance upon a false document.

Summary of decision:

25. First-tier Tribunal Judge Ievins made a material error of law error of law and his decision, promulgated on 4 February 2016, shall be set aside.

26. I substitute a fresh decision to dismiss the appeal both on human rights grounds and under the immigration rules.
Signed

Upper Tribunal Judge Southern

Date: 24 October 2016