IA/28642/2015

• Status of case: Unreported
• Hearing date: 4 Jan 2017
• Promulgation date: 25 Jan 2017
• Publication date: 23 Aug 2021
• Last updated on: 23 Aug 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28642/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 4 January 2017
Extempore judgment
On 25 January 2017



Before

UPPER TRIBUNAL JUDGE COKER


Between

Miss sarita karki

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Not represented and no appearance
For the Respondent: Mr P Singh, Home Office Presenting Officer


DECISION AND REASONS


1. This is the appeal of Miss Karki against the decision of the First-tier Tribunal subsequent to a hearing on 13 July 2016, the decision being promulgated on 25 July 2016. The appellant had appealed against a decision by the Secretary of State to refuse her further leave to remain as a student. The application had been refused under paragraph 322(1A) of the Immigration Rules and also under 322(2) as her previous application had been made using the same false document. Directions had also been made to remove her under Section 47 of the Immigration, Asylum and Nationality Act 2006. Her appeal against that decision was dismissed, the judge finding that the appellant had not provided sufficient evidence to allow him to conclude that she had not employed deception. He found that she did not have a plausible and innocent explanation for the test result and had not provided information other than she sat the test.

2. The appellant did not attend the hearing before me. No reason for her absence was forthcoming and from the file she was notified of the date of hearing to her last notified address.

3. Although permission to appeal had been granted on the basis that it was arguable that the judge had reversed the burden of proof by expecting the appellant to produce certain documents and that it was arguable that the judge had not followed the Upper Tribunal's decision in SM and Qadir which states that after considering the evidential burden on the respondent to provide prima facie evidence of fraud then considering whether the appellant could provide an innocent explanation the burden then shifted back to the respondent to discharge the legal burden of proof, that in fact was not the basis upon which the judge had reached his decision.

4. The judge had made a finding which was open to him having heard the evidence of the appellant and considered the documentary evidence before him that she had not been able to provide sufficient evidence to enable a conclusion that she had not employed deception. There was therefore no evidential burden upon the Secretary of State to consider whether the respondent had discharged the legal burden and therefore there is no error of law in this decision and I dismiss the appeal.

Notice of Decision

The appeal is dismissed




Signed Date 24th January 2017
Upper Tribunal Judge Coker