Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/27900/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2017
On 15 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR md shakoat hossain
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Mr Hossain Shamsuzzoha, instructed by SEB Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal Judge Thorn who, in a determination promulgated on 18 August 2016, allowed the appeal of Mr Hossain (“the claimant”). I shall refer to the Secretary of State as the respondent as before the First-tier Tribunal.
2. On 21 January 2014 the claimant applied for leave to remain as a Tier 4 (General) Student Migrant. The respondent refused the claimant’s application under paragraph 322(1A) and 245ZX(d) of the Immigration Rules HC 395 (as amended). The respondent refused to grant the claimant leave on the basis that a solvency certificate and bank statement from Mutual Trust Bank Limited were forgeries. The respondent considered that, because the bank statement was false, the claimant could not establish that he had the required funds. A decision to remove the claimant under Section 47 of the Immigration, Asylum and Nationality Act was also made. The claimant appealed against the respondent’s decision to the First-tier Tribunal.
The appeal to the First-tier Tribunal
3. The First-tier Tribunal found that the respondent had not discharged the burden of proving that the bank statement was false. The judge concluded that the claimant was entitled to rely upon the bank statement and that, as the respondent had refused the application solely on the basis that the claimant could not demonstrate adequate funds, the appeal was allowed.
The appeal to the Upper Tribunal
The preliminary issue
4. At the commencement of the hearing before me a preliminary issue was raised. The respondent applied for permission to appeal against the First-tier Tribunal’s decision to the Upper Tribunal. The application for permission to appeal was made seven days out of time. On 25 January 2017 First-tier Tribunal Judge Baker granted the Secretary of State permission to appeal. However, it is clear that the reasons for the decision, as set out in the grant of permission, indicate that the judge did not consider that the respondent’s grounds of appeal had any arguable merit. Judge Baker set out:
“1. The respondent seeks permission to appeal out of time the decision of First-tier Tribunal Judge Thorn who allowed the appeal finding the appellant had demonstrated that the bank statement was not false. The reason given is purely an administrative error. Having regard to the lack of merit of the appeal grounds, I refuse permission to extend time.
2. Had the time been extended I would have refused the application on the merits. Contrary to the grounds the correct burden of proof is identified by the Judge at paragraph 20. Namely on the civil standard, on a balance of probabilities, which is identified to be the same standard on all issues, in paragraph 17 by the Judge. The Judge did not arguably err in also identifying that the respondent was required to demonstrate to a high standard the falsity of the document the appellant had relied on, addressing the burden on the respondent and the evidential requirement of reliability.
3. The grounds assert the consideration by the Judge of the letter from the bank one year after the original report, as the ground for finding he materially erred. This has no merit since the material relied on by the respondent was plainly found by the Judge to be inadequate at paragraph 21. The Judge noted that only an email stating ‘solvency genuine but statement fake’ was relied upon by the respondent. The Judge noted there was no explanation as to the identity of the author of that email, their position within the bank or the nature of the enquiry made nor of the methods used to identify the alleged forged document. Accordingly the Judge found the allegation not made out. It was not therefore material to go on to consider the documents rebutting that allegation which had been found not to have been made out by the respondent.”
5. As can be seen from the reasons for Judge Baker’s decision it was clear that he did not consider that there was any arguable merit in the grounds of appeal. However, the decision made by Judge Baker was to grant permission to appeal to the respondent. The reasons for the decision do not form part of the decision itself. Mr Armstrong relied on the case of Katsonga (“slip rule”; FtT’s general powers) [2016] UKUT 00228 (IAC) (‘Katsonga’). He referred to paragraph 10 of the decision:
“10. We do not think that the power under the slip rule enables a decision to be reversed at the instance of the losing party. Once a decision has been given in a particular sense it may be subject to setting aside under rule 32 or the appellate process. In all other respects, having made and sent out the decision, Judge O’Rourke was functus. For the foregoing reasons we regard the purported use of the slip rule to produce the second determination in the present case as ineffective. We allow the appeal against the second determination on the grounds that the First-tier Tribunal had no jurisdiction to make that second determination.”
6. Mr Shamsuzzoha relied on the Upper Tribunal Rules 2008, Rules 42 and 43. He submitted that if there is a misprinting or a clerical mistake then that can permit a decision to be set aside. He submitted that the substance of the decision clearly indicates that permission was refused and that time was not extended. He relied on paragraph 9 of the Katsonga case and submitted that whilst the power cannot be used to change the substance of a judgment in this case the substance is in clear contradiction to the administrative error where permission to appeal is granted. He submitted this was simply a clerical mistake. He submitted that when a misprinting takes place this can be corrected and a new decision issued.
7. In Jan (Upper Tribunal: set-aside powers) [2016] UKUT 00336 (IAC) (‘Jan’) the Upper Tribunal confirmed the position regarding the Upper Tribunal’s ‘slip-rule’ as held in Katsonga:

“22. Finally, we remind ourselves that both the Upper Tribunal Rules (at r 42) and the Procedure Rules of the First-tier Tribunal include a slip rule, in terms similar to that in CPR 40.12. The Upper Tribunal has held that the First-tier Tribunal's slip rule is not available for the purpose of reversing a decision already communicated to the parties: Katsonga v SSHD [2016] UKUT 00228 (IAC).”
8. In Jan the Upper Tribunal also considered Rule 43 and held that the Upper Tribunal can only set aside a decision if one of the conditions set out in r43(2) applies. In this case Judge Baker made a decision which was communicated to the parties. That decision was to grant permission to appeal to the respondent. Although it is clear that that is not what Judge Baker intended it was nevertheless the decision that was made and communicated. It was not, as suggested by Mr Shamsuzzoha, an administrative error. Mr Shamsuzzoha based his submission on an erroneous assumption that administrative staff simply inserted the decision. None of the factors in r43(2) apply on the facts of this case. The decision made by Judge Baker cannot be set-aside. I find therefore that there was a valid appeal before me.
The substantive appeal
9. Mr Armstrong submitted that the First-tier Tribunal had erred in law. He referred to paragraph 17 of the First-tier Tribunal’s decision. In that paragraph the judge found that the burden of proof rests upon the claimant. He submitted that this is a clear error and, although it does not assist the respondent, the burden (where the respondent has alleged fraud) rests upon the Secretary of State, not the claimant. He indicated that this demonstrates that the judge did not approach the appeal in the correct manner. He submitted that the judge applied too high a standard of proof. He referred to paragraph 20 where the judge sets out that it is for the respondent to prove to a high standard that documents were obtained fraudulently. The judge has recorded that there was no Home Office Presenting Officer at the appeal whereas in fact a Home Office Presenting Officer did appear and took a minute of the hearing. He submitted that the judge rejected the Home Office’s evidence in paragraph 21 but has not given sufficient reasons as to why he rejects that evidence. He also submitted that the reply from the bank relied upon by the claimant dated 11 July 2016 was only submitted shortly before the hearing and the judge has not explained why she was prepared to accept the letter at face value when the Secretary of State had not had an opportunity to consider the document and whether or not it was genuine. He submitted that the email relied upon by the Secretary of State suggests that it is possible to get forged documents from the Mutual Trust Bank Limited.
10. Mr Shamsuzzoha argued that in paragraph 17 of the decision when the judge says that the burden of proof rests upon the claimant this is simply a misprinting mistake as the judge says in paragraph 20 that the burden is on the respondent. With regard to the incorrect standard or proof he indicated that he was not going to dispute strongly that the judge had recorded an incorrect standard but that, as the judge refers to the case of AA (Nigeria) v SSHD [2010] EWCA Civ 773, the judge was clearly referring to the civil standard of proof. He submitted that that case confirms that the normal civil standard of proof applies. He submitted that in any event the respondent is required to prove with cogent evidence allegations of dishonesty. He submitted that these were simply errors of a clerical nature that did not go to the substance of the judge’s finding. At paragraph 21 of the decision the judge has given adequate reasons as to why he did not accept the respondent’s evidence. With regard to the late submission of the document he submitted that there was no requirement for the claimant to submit any documents until fourteen days before the hearing of the Tribunal and that there is no rule that requires the claimant to obtain documents and serve them in advance of a hearing.
11. Mr Armstrong in reply argued that it was two and a half years between the refusal by the Secretary of State and when the claimant obtained the document from the bank in July 2016.
Discussion
12. It is clear that there are errors in the First-tier Tribunal’s decision. At paragraph 17 the judge sets out:
“17. The burden of proof rests upon the appellant. The standard of that proof is the balance of probabilities.
...
20. In considering this matter, I take into account the case of AA (Nigeria) v SSHD [2010] EWCA Civ 773. This makes it clear that it is for the respondent to approve to a high standard that documents were obtained fraudulently and that the appellant had knowledge that he had made a false declaration in the application, knew that the documents were forgeries and was dishonest. For reasons given below I am not satisfied to that standard that the documents referred to by the respondent were obtained fraudulently or that the appellant did have such knowledge and was dishonest.
21. Apart from the email from ‘Redacted’@mutualtrustbank.com dated 13/03/14 stating ‘Solvency genuine but statement fake’, the respondent has failed to produce any other evidence to support this serious allegation of deception and forgery. There is no explanation as to the identity of the author of the email, their position within the bank or the nature of their enquiry or the methods used to identify the alleged forgery.
22. Bearing in mind this lack of evidence and the clear evidence of A in his witness statement and the letter from Mutual Trust Bank Ltd dated 11/07/16 written by the Manager of A’s branch, Mr. Mohammed Masud Karim, stating ‘We are firmly confirming that the content of the statement issued on 07/01/2014 is true per our record’, I conclude that the respondent has failed to prove to a high standard that the original bank statement submitted with the application was a forgery.”
13. It is clear that not only does the judge refer to the standard of proof as a high standard but that the judge applied that high standard when the judge concluded in paragraph 22 that ‘the respondent had failed to prove to a high standard’.
14. However, I do not find that this error of law is material. The judge had in front of him an email at paragraph E1 of the bundle. Whilst I accept that the name of the individual at the bank might be redacted to protect the identity of that person the other issues raised by the judge are relevant and are issues that the judge was entitled to take into consideration. On applying the correct balance of probabilities standard the judge was entitled to take into consideration that there was no explanation as to the position of the person within the bank, the nature of the enquiry or the method used to identify the alleged forgery. I also note that there is no specific audit trail between the documents, presumably submitted with the email sent on 13 March to Mutual Trust Bank, as to which documents were submitted with that email. The judge was entitled to take into consideration the evidence of the claimant in his witness statement. Applying the balance of probabilities standard these were findings that the judge was entitled to reach.
15. With regard to the letter of 11 July 2016 I accept the respondent’s submissions that this letter was obtained a considerable period of time after the respondent had made clear the position with regard to the original bank statement being a forgery. However, as Mr Hossain submitted the respondent has not alleged that this document was a forgery having had it in their possession since July 2016. Whether or not the judge was entitled to take this document into consideration it is, in any event, clear from the Tribunal’s decision that the appeal was allowed on the basis that the judge did not accept that the respondent had proved that the bank statement was false. At paragraph 24:
“24. Because I am not satisfied that R has proved that the bank statement was false, I conclude that A was entitled to rely upon it.”
16. I therefore find that the error of law in the First-tier Tribunal’s decision was not material.
17. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

Notice of Decision
18. The appeal of the Secretary of State is dismissed. The decision of the First-tier Tribunal stands.

Signed P M Ramshaw Date 14 March 2017

Deputy Upper Tribunal Judge Ramshaw