Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36776/2014
IA/07016/2015
IA/07021/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th August 2016
On 28th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MURRAY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS Sithy Rayeeza Rasheed Khan (First appellant)
Mr Mohamed Faslee Rasheed Khan (second appellant)
Miss Farhath Fathima Rasheed Khan (third appellant)
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr Melvin, Home Office Presenting Officer
For the Respondents: Mr Khan, Universal Solicitors London

DECISION AND REASONS
1. The Appellant in these proceedings is the Secretary of State however for convenience I shall now refer to the parties as they were before the First-tier Tribunal.
2. The Appellants are citizens of Sri Lanka born on 6th August 1958, 29th October 1993 and 30th June 1997 respectively. The first Appellant is the mother of the second and third Appellants.
3. The first Appellant appeals against the decision of the Respondent dated 20 April 2013 refusing her leave to enter the United Kingdom and cancelling the student leave she had. The second and third Appellants appeal against the decisions of the respondent refusing to issue residence cards to them, pursuant to the Immigration (European Economic Area) Regulations 2006 which decisions are dated 4th February 2015. The three appeals were linked and were heard by Judge of the First-tier Tribunal M Davies on 24th November 2015. He allowed the first Appellant's appeal under the Immigration Rules. The appeals of the second and third Appellants were withdrawn at that hearing pursuant to Rule 17 of the Procedure Rules. I am therefore only dealing with the appeal of the first appellant.
4. An application for permission to appeal was lodged by the Respondent and permission was granted by Judge of the First-tier Tribunal Chohan on 21st July 2016. This only relates to Ground 2 of the grounds of application which is that the First-tier Judge committed a procedural or other irregularity capable of making a material difference to the outcome of the fairness of the proceedings. Paragraph 24 of the decision is referred to. This deals with the Appellant obtaining an English language qualification by deception. The judge states that this issue was raised for the first time at the hearing. It is referred to in the Respondent's Explanatory Statement in the Respondent's second bundle. The permission states that the Explanatory Statement makes reference to the ETS/TOEIC English language certificate at paragraph 19 but there is nothing to suggest that this Explanatory Statement was first served on the day of the hearing. The permission states that the judge seems to have dealt with other aspects of the Explanatory Statement but not with said paragraph 19 and this has resulted in an arguable error of law. Judge Chohan refused permission on Ground 1 of the grounds of application, which is that the judge applied the wrong standard of proof by referring to the standard of proof as one of a "balance of probabilities but at the higher end of the spectrum."
5. An application for permission to appeal to the Upper Tribunal was submitted relating to Ground 1 of the application. Permission to appeal on Ground 1 was granted on 29th July 2016 by Upper Tribunal Judge Goldstein. This permission states that the First-tier Tribunal Judge may have applied the wrong standard of proof and if he did, this error of law may have infected the entire decision. The permission also states that the judge's reliance on JC [2007] UKAIT 00027 at paragraph 29 of his decision was misconceived. Reference is made to the case of NA and Others Cambridge College of Learning Pakistan [2009] UKAIT 00031.
The Hearing
6. I established that no adjournment request was made at the First-tier Tribunal hearing.
7. The Presenting Officer submitted that a second Respondent's bundle was served with an amended memorandum but the judge rejected it. He submitted that the judge should have considered it. The Presenting Officer submitted that he is relying on both grounds of application submitting that the judge's decision to deal with the standard of proof at the higher end of the balance of probabilities has infected his decision. The Presenting Officer stated that the second bundle was served ahead of the hearing but Mr Khan for the Appellant said that that is not what happened. He said the second bundle was served at the hearing. The Presenting Officer submitted that if the judge had felt unable to deal with any of the crucial matters in this claim he should have adjourned the hearing. He submitted that the First-tier Judge went off at a tangent and I was referred to paragraph 24 of the decision which states that if the Respondent wishes to now interview the Appellant about her suspicion that she obtained her TOEIC certificate by using a proxy, that is a matter for the Respondent but it does not form part of the decision the Appellant appeals against on this occasion. The Presenting Officer submitted that the judge should have made a decision on this matter as it was before him. The Presenting Officer submitted that as this matter was not dealt with by the First-tier Tribunal Judge the claim should be remitted to the First-tier Tribunal for a full hearing on all issues.
8. The Appellant's representative submitted that he is relying on his Rule 24 response and skeleton argument. I was referred to paragraph 8 of the skeleton argument and paragraph 29 of the decision, which states "The consequences of the refusal of leave to enter for breach of conditions are serious for an individual and therefore the standard of proof is at the higher end of the spectrum of balance of probability." The representative submitted that the case of NA and Others deals with this point. Mr Khan submitted that the judge gave anxious scrutiny to the evidence. He submitted that paragraph 29 of the First-tier Tribunal Judge's decision stresses the seriousness of the situation for the Appellant, if the allegation of dishonesty is found to be correct. I was referred to paragraph 9 of the skeleton argument and the case of Muhandiramge [2015] UKUT 00675 (IAC). This refers to the precedent of the burden of proof resting on the Secretary of State and the standard of proof being at the higher end of the balance of probability spectrum. I was also referred to the case of SM and Qadir [2016] UKUT 00229 (IAC). The representative submitted that the fundamental judicial task is to decide whether, having regard to the context and the evidence adduced, the matter is of sufficient cogency to warrant the conclusion that the burden of proof has been discharged to the civil standard. He submitted that it is clear in this case that the judge has applied the correct standard of proof.
9. I was then referred to paragraph 33 onwards of the decision and the judge's findings and reasons therein. The representative submitted that in First-tier Tribunal Judge Chohan's permission at paragraph 3, he states that when one looks at the judge's decision as a whole, whether the judge applied the standard of proof to a higher end or just on the balance of probabilities, based on the judge's reasoning, the outcome would have been no different. He submitted that at paragraph 36 of the decision it is clear that the judge has considered everything before him on the ordinary balance of probabilities. He submitted that the Respondent's case was not made out at the appeal hearing.
10. I was referred to paragraph 14 of the skeleton argument in which it is stated that the First-tier Tribunal Judge gave no less than seven compelling reasons why the Respondent's evidence lacked the sufficient cogency required to discharge the burden of proof which rested on her. I was referred in particular to paragraph 48 of the decision in which the judge states that the decision maker made the decision based on a misapprehension of material facts as at no place in the interview record did the Appellant state that she had been working cash in hand for Vens Solicitors or that she had last been paid by them in June 2013, five months after her residence permit and leave to remain had been granted. The refusal decision was dated in April 2013. He submitted that the Grounds of Appeal do not challenge this paragraph and when the Appellant's employment history is considered she was working part-time from 2009 until 2012 which was permitted although this changed after 2012.
11. The representative submitted that even if the judge did use too high a standard of proof, had he used the correct standard of proof his decision would have been no different. He submitted that there is nothing irrational in the judge's decision relating to the first Ground of Application.
12. With regard to the second ground of application the representative submitted that the judge did not refuse to adjourn the appeal as no application was made for an adjournment. He submitted that the Explanatory Statement had not been in the Respondent's bundle dated 24th April 2015 and before the date of the hearing no separate bundle was lodged so there was no reference to the English language test and there was no allegation of deception against the Appellant but at the date of the hearing a new bundle was produced by the Respondent addressed to Croydon and delivered to Croydon on 11th November 2015 so it had been wrongly served. The representative submitted that when the First-tier Tribunal Judge got the second Respondent's bundle he rose so that the Appellant's representative could consider it. He submitted that this is referred to in the decision and at paragraph 24 the judge deals with this. He goes on to make his decision based on whether the Appellant worked in breach of the terms of her visa but not relating to the English test.
13. The representative pointed out that the date of the decision was 20th April 2013 and the Explanatory Statement was dated two and a half years after that. He submitted that the judge's view that the Explanatory Statement did not form part of the Respondent's decision is correct.
14. I was referred by the representative to the decision which is in the Appellant's original bundle. The reasons given in this for cancelling the Appellant's continuing leave are that the Appellant had been working in breach of her conditions of stay and there was a right of appeal on this basis. Her leave to enter was refused and her continuing leave was cancelled. He submitted that the judge was right not to consider the allegation made against the Appellant in the Explanatory Statement. The judge explains this at paragraph 24 of his decision.
15. In his decision the judge states that the appeal had been adjourned on two occasions before November 2015 when it was eventually heard. The adjournments were dated in April 2015 and September 2015. He submitted that had the judge allowed the introduction of the allegation of deception in the English language test, he would have had to adjourn the hearing again. He submitted that before the hearing no one was aware of this allegation.
16. I was asked to consider paragraphs 14, 15 and 16 of the decision. The representative submitted that it is clear that the judge has taken everything into account and there is no material error of law. I was asked to uphold the decision.
17. The Presenting Officer submitted that there was a decision relating to deception, being that the Appellant had worked without permission against the terms of her visa and this decision was waiting for an appeal to be heard. In the meantime another deception point was raised. He submitted that this was served on time but in any case this issue was before the First-tier Tribunal Judge. He submitted that if the judge felt that this matter could not be considered by him another adjournment should have been granted. He gave the example of a deportation case where, if something else comes up, this forms part of the evidence, even if it is not included in the deportation order and the judge requires to deal with it. He submitted that the judge should have dealt with the ETS/TOEIC matter in this case. He submitted that the fact that the judge did not deal with it is a material error of law.
18. The Appellant's representative submitted that the judge set out all his reasoning in the decision. The judge stated that now this new issue has been raised, the Respondent can make a further decision relating to it. I was referred to paragraphs 50 and 51 of the decision in which the judge allows the appeal and states that the Respondent now needs to take a decision as to what action is required in the light of his, the First-tier Tribunal Judge's decision. He submitted that the judge was right to find that the allegation about the ETS/TOEIC language test did not require to be decided by him. It was not part of the original refusal.
19. The Presenting Officer submitted that the decision is based on the Appellant's deception. He submitted that the explanatory letter raises another deception point. He submitted that it came to light recently but this does not mean that the judge should not have considered it. He submitted that it should have been dealt with by the First-tier Tribunal Judge and because he did not do so this is a material error of law.
20. The Appellant's representative submitted that the original decision is not based on a deception issue but a breach of visa conditions which is different. I was asked to uphold the First-tier Tribunal Judge's decision.

DECISION AND REASONS
21. There was conflicting evidence as to when the Explanatory Statement was served and whether the Appellant and her representative were aware of it before the date of the hearing. It seems to have been issued at the beginning of November 2015 but it was wrongly served so the first time the Appellant and her representative were made aware of it was at the appeal hearing on 24th November 2015.
22. This does not mean that the judge should not have considered it. It was before the judge. He should have considered it along with the matter raised in the refusal letter about the Appellant working in breach of the terms of her visa. The judge made a material error of law by not dealing with the allegation about the ETS/TOEIC certificate. If he felt he was unable to deal with it at the appeal hearing he should have adjourned the hearing. The fact that the case had been adjourned before is not relevant.
23. The said cases of Muhandiramge and SM and Qadir are relevant to the standard of proof used by the judge. The judge decided that the Appellant did not work in breach of the terms of her visa and he found that the respondent had not discharged the burden of proof on this issue but it is not clear what standard of proof he used. Balance of probabilities is not flexible.
Notice of Decision
24. As I find that there are material errors of law in the judge's decision it has to be set aside.
25. No findings of the First-tier Tribunal can stand. Under section 12(2) (b) (i) of the 2007 Act and Practice statement 7.2 the nature and extent of judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. The member(s) of the First-tier Tribunal chosen to reconsider the case are not to include Judge Davies.
26. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Murray 28th September 2016