Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/39639/2014
ia/39640/2014
ia/39641/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 August 2016
On 13 September 2016

Before

UPPER TRIBUNAL JUDGE GLEESON
DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

Jashy [J]
Chinnaduraai [A]
[J C] (a minor)
(no anonymity order made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr S Bellara, Counsel
For the Respondent: Mr T Melvin, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are a wife, her husband, and their 6-year old daughter: the wife is the principal appellant and, save where the context requires, we refer to her in this decision as 'the appellant'. They are all Indian citizens.
2. The appellant first came to the United Kingdom from India on 29 September 2010 with a 2-year student visa, work up to 20 hours permitted during term time, and no recourse to public funds. Her leave was extended, to 13 August 2014, with restricted employment conditions and no recourse to public funds. The appellant's husband and daughter joined her on 16 September 2013, with leave to remain until 13 August 2014, in line with the principal appellant, also with restricted employment and no recourse to public funds.
3. On 15 October 2014, the respondent refused to grant further leave to remain in the United Kingdom under paragraph 245ZX(a) of the Immigration Rules HC395 (as amended) as a Tier 4 (General) Student Migrant and decided to remove the appellants by way of directions under section 47 of the Nationality, Immigration and Asylum Act 2002 (as amended). The respondent refused the applications of the husband and child under paragraphs 319C(b) and 319H(b) of the Rules, in line with her decision regarding the principal appellant.
4. The basis of the respondent's decision to refuse further leave and remove the appellants was that, pursuant to paragraph 322(1A) of the Immigration Rules HC395 (as amended), she was satisfied that the appellant had used deception in her application by relying on bank statements which the State Bank of India refused to verify as genuine. The applicant achieved 30 points for her CAS but no points for Maintenance (Funds), as the respondent considered that the bank statements from the State Bank of India had been proven to be false.
5. In addition, the respondent warned the applicant that pursuant to paragraph 320(7B) she would be subject to a 1-year bar on return if she left the United Kingdom voluntarily, 5 years if she left voluntarily at the expense of the United Kingdom government, and 10 years if it was necessary to remove or deport her.
6. The respondent included a section 120 one-stop notice in the refusal letter, requiring the appellants to state any additional grounds on which they should be allowed to stay in the United Kingdom.
7. The appellants had an in-country right of appeal, which they exercised, but opted for an appeal 'on the papers', providing a witness statement from the appellant but not giving the opportunity to the First-tier Tribunal to cross-examine the applicant or raise any points of clarification.
8. The respondent also did not arrange representation or appear: the First-tier Tribunal was required to decide the merits of the appeal solely on the documents presented by the parties.
First-tier Tribunal decision
9. The First-tier Tribunal reviewed the evidence from the respondent's document verification process, presented redacted, and not in the form of a Document Verification Report (DVR). It was in the form of an email exchange between a Visa Support Assistant at the British Deputy High Commission at Chennai and SBI Tiruchirappalli (the appellant's branch of the State Bank of India).
10. There was rebuttal evidence in the form of a witness statement from the appellant, stating that the documents were genuine and reliable, and that she had contacted her bank. She said that her mother was using the account and had taken the email and a letter to the bank, which was not prepared to confirm the authenticity of the email or give any other details. There was nothing more from the bank.
11. The First-tier Tribunal was guided by the decision of the Court of Appeal in Adedoyin (formerly AA (Nigeria) v SSHD) [2010] EWCA Civ 773, and by that of the Upper Tribunal in Begum (false documents and false statements) [2015] UKUT 00041 (IAC). The Judge concluded that the respondent had reasonable grounds for suspicion that the documents from the SBI Tiruchirappalli were false. The Judge directed himself that it was for the appellant to rebut that reasonable suspicion, and that a bare assertion in a witness statement, unsupported by documentary evidence from the bank or even the oral evidence of the appellant, was insufficient. The Tribunal noted that 'it would have been comparatively easy for [the appellants] to adduce relevant documentary evidence in refutation of the respondent's suspicion had it been possible actually to obtain the same'.
12. On that basis, the First-tier Tribunal concluded that the appellant 'had failed to discharge the burden of proving her appeal' and that her appeal, and those of the second and third appellants, must be dismissed.
Error of law decision
13. In an error of law decision promulgated on 21 April 2016 Deputy Upper Tribunal Judge Murray found that there was an error of law in the judge's self direction in reliance on Shen (Paper appeals; proving dishonesty) [2014] UKUT 00236 (IAC) which held inter alia that "pursuant to paragraph 322 of the Immigration Rules the reference to "false" means "dishonestly false".
14. Deputy Upper Tribunal Judge Murray directed that the decision of the First-tier Tribunal be set aside and re-heard in the Upper Tribunal and made directions for an indexed and paginated bundle containing all the documentary evidence upon which it is intended to rely at the forthcoming hearing, pursuant to Rule 15(2A) and that the previous documentary material need not be re-served.
15. That is the basis on which the appeal came before us today.
Evidence before the Upper Tribunal
16. The core documents at the hearing today are a statement from the appellant's mother and a copy of the document verification report. The document verification report in the part headed 'Contact History' states as follows:
"Called the above number [for the State Bank of India] and spoke to Official - State Bank of India, Tiruchirapalli who stated that the details given in the balance confirmation letter and bank statement does not tally with their records. He refused to give any further details. Email correspondence received from bank received and linked below."
The email from the bank read as follows:
"Dear Sir
On scrutiny of the account we observe that we are unable to ascertain the veracity of the certificate issued by the branch, nor the credit balance shown in the certificate tally with that the balance lying in the account [number given] as on the date 17th July 2014.
Regards
SBI Tiruchirapalli."
17. The statement from the appellant's mother, the original of which was produced at the hearing and which was signed in Tiruchirapalli on 8 August 2016, states that the family had not notified the State Bank of India that the appellant was in the United Kingdom and that the appellant's mother was using the account with the appellant's ATM card and signed cheque book as the appellant's mother is alone and looked after by the appellant and her husband. The statement continues -
"4. ... She also asked me to maintain the account because in India, the account will automatically become dormant if there is not transaction for a while. Then it will be difficult to re-open again.
5. She was ordered a statement from the bank over the phone and they have sent to our home address. I have posted that to her to London. The bank was not aware she is in UK. They were under impression all the transaction in the account was made by her. The account is now freeze because of the British High Commission verification. The bank is in suspicion how my daughter can make transactions in the account in India while she is in UK.
6. My daughter contacted the bank and I have physically been there to get a letter from the bank explaining the circumstances. Because the bank has started action further to the verification the bank is reluctant to give any information until otherwise she must be present with her ID.
7. I only use the card to make shopping's and household needs like rent, Bills and other expenses. In India we were living like one family. I can ascertain most of the money in the account is belong to her and she never turned back to us for using the money for our self. She very much knows that we do not misuse the trust. Her husband also looking after us very good.
8. I did some transaction on the day when the bank issued the statement. Now all the money is blocked and that can only get back when my daughter will physically come to the bank along with her ID.
9. I say that there is nothing wrong in the statement as alleged by the Home Office. I was not aware that I must not do any transactions on that day. Honestly speaking we both were not aware, otherwise my daughter would have told me not to do any transactions.
10. The statement which I was submitted along with her application is genuine."
18. That statement provides a prima facie reason why the bank might have refused to give further information and also why the bank might have stated that the information in the statement was not matched by the information on their records for the same day.
19. The appellant's witness statement, produced in rebuttal of the refusal, stated that she had spoken to her bank and they had confirmed orally to her that the documents were correct and genuine. The appellant stated that the probable reason for the bank's refusal to verify the balance was that her mother used the account on the same day, such that the balance was different. No further witness statement from the appellant or her mother was produced for the Upper Tribunal hearing and Mr Melvin indicated that he did not wish to cross-examine the appellant. The appellant's evidence therefore stands unchallenged.
Submissions
20. For the appellant, Mr Bellara submits that having regard to RP (proof of forgery) Nigeria and the requirement for a clear finding of deception by the appellant in relation to her application to the Home Office, the rather qualified statement by the bank simply does not meet that standard nor does it raise a prima facie case for a finding of deception as opposed to the production of unreliable documents which would engage the guidance in Tanveer Ahmed. He submits therefore that the proper outcome is for the appeal to be allowed in relation to the paragraph 320(7) finding only but not in relation to the substance of the appeal, the documents being accepted to be at least apparently unreliable.
21. For the Secretary of State Mr Melvin prepared a skeleton argument, in which he contended that the State Bank of India's refusal to confirm that the documents were genuine was sufficient to switch the burden to the appellant and that, despite the lapse of nearly 2 years since the contested decision, she has produced no further evidence from the bank.
22. He submitted that the Upper Tribunal has sufficient material before it to find that the documents were false because the DVR Report indicated that the State Bank of India was unable to verify either the bank statements or the certificate of deposit. He argued that no reliance can be placed on the appellant's witness statement in which she asserted that she had subsequently spoken to the State Bank of India and that they have orally confirmed that the documents were genuine and correct and that the reason the account was blocked was because her mother used the account on the day.
23. Mr Melvin argued that the burden was on the applicant to show that she meets the requirements of the Tier 4 Rules and that she has submitted documents which her own bankers will not verify as genuine. The respondent relied on Shehzad & Another v Secretary of State for the Home Department [2016] EWCA Civ 615 as to the shifting burden of proof. The respondent is required to furnish prima facie proof of deception and that is an evidential burden. If that burden is met, as Mr Melvin contended was the case here, the burden shifts to the individual to provide a plausible explanation.
Rule 322(1A)
24. The terms of rule 322 (1A) of the Immigration Rules are as follows:
"322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave, ?
Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused
? (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."
25. The language of the Rule is mandatory. In the Court of Appeal in Adedoyin (AA (Nigeria)), Lord Justice Rix (with whom Lord Justices Longmore and Jacob agreed), said at [76]- [79]:
"76. ? Dishonesty or deception is needed, albeit not necessarily that of the applicant himself, to render a "false representation" a ground for mandatory refusal.
77. If it were otherwise, then an applicant whose false representation was in no way dishonest would not only suffer mandatory refusal but would also be barred from re-entry for ten years if he was removed or deported. That might not in itself be so very severe a rule, if only because the applicant always has the option of voluntary departure. If, however, he has to be assisted at the expense of the Secretary of State, then the ban is for five years. Most seriously of all, however, is the possibility, on the Secretary of State's interpretation, that an applicant for entry clearance (not this case) who had made an entirely innocent misrepresentation, innocent not only so far as his personal honesty is concerned but also in its origins, would be barred from re-entry under paragraph 320(7B)(ii) for ten years, even if he left the UK voluntarily.
78. In any event, it would be most unfortunate if, merely because of an entirely innocent misrepresentation, an applicant had to leave the UK under a decision of the Secretary of State which stated, as the decision in the case of Mr A has stated, that "you have used deception in this application". That would presumably always be an impediment to such an applicant's return, even if not a mandatory bar.
79. It also follows that on my understanding of rule 322(1A), no question of discretion arises at all. There may be an element of assessment as to whether a minor inaccuracy amounts to a false representation of any kind. However, that kind of assessment of the facts constantly arises, and is separate from a question of discretion."
26. In Shen the Upper Tribunal held inter alia that "pursuant to paragraph 322 of the Immigration Rules the reference to "false" means "dishonestly false" and
"(1) In terms of the approach that a tribunal should adopt towards decisions of the Secretary of State in which dishonesty or deception is alleged against an applicant for leave to remain, the starting point should be, as the Court of Appeal in Adedoyin (formerly AA (Nigeria) v SSHD) [2010] EWCA Civ 773 have made clear, that pursuant to paragraph 322 of the Immigration Rules, the reference to "false" means "dishonestly" false.
(2) Where an application form etc is false in a material way, this may be relied on by the Secretary of State as prima facie evidence establishing dishonesty. The inference of deliberate deception can be strengthened by other facts: e.g. if a criminal conviction (not disclosed in an application) occurred shortly before completion of the application form. Here, the conviction must have been high in the applicant's mind and any explanation based on oversight would carry little weight. But it is always open to an appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the burden switches back to the Secretary of State to answer that evidence. At the end of the day the Secretary of State bears the burden of proving dishonesty.
(3) The internal organisational decision by the Secretary of State not to engage with paper appeals means that the appellant's evidence goes unchallenged. In that regard, it must be remembered, that in the absence of evidence from the Secretary of State putting the appellant's prima facie plausible explanation into doubt, it would be wrong to find dishonesty. Thus, in view of the possible evidential difficulties confronting a judge when deciding a paper application, where the appellant's evidence is not met (see para (2) above), a tribunal should be slow to find dishonesty, particularly without hearing evidence and submissions on the point from the appellant and/or the Secretary of State.
(4) A finding of dishonesty can have catastrophic consequences for the appellant in social and economic terms and is not to be made lightly. Thus, in a paper case, if a judge entertains doubts as to the appellant's account, he or she should be mindful of the powers of rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to give directions regarding supporting documentary evidence, or for the Secretary of State to respond to the appellant's evidence as she considers appropriate."
27. Further clarification was given by the Upper Tribunal (Vice-President Ockelton and Deputy Upper Tribunal Judge Davidge) in Begum (false documents and false statements) [2015] UKUT 00041 (IAC):
"A document which is not itself 'false' within the meaning of A v SSHD [2010] EWCA Civ 773 may fall equally foul of para 320(7A) if it contains a statement that is, to a relevant person's knowledge, untrue."
28. In Shehzad & Another at [3], the Court of Appeal held that:
"3. It is common ground that for a decision to be made under paragraph 322(1A) there must be material justifying a conclusion that the individual under consideration has lied or submitted a false document. It is also common ground that the Secretary of State bears the initial burden of furnishing proof of deception, and that this burden is an "evidential burden". That means that, if the Secretary of State provides prima facie evidence of deception, the burden "shifts" onto the individual to provide a plausible innocent explanation, and that if the individual does so the burden "shifts back" to the Secretary of State: see Shen (paper appeals: proving dishonesty) [2014] UKUT 00236 (IAC) at [22] and [25] and Muhandiramge (section S-LTR 1.7) [2015] UKUT 675 at [10]. As to the standard of proof, the civil standard of proof applies to this question. ?[The] standard required is the balance of probabilities. Baroness Hale stated (at [70]) that "neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."
29. That is the legal context against which the evidence in this appeal falls to be assessed.
Discussion
30. The thrust of Mr Melvin's case was that the respondent provided prima facie evidence of deception and that the applicant's explanation is not potentially an innocent one. We are not with him in that respect. The evidence from the bank does not go sufficiently far to amount to prima facie evidence of deception and the official who spoke to the visa officer did not so state. The evidence of the SBI official is that "the details given in the balance confirmation letter and bank statement does not tally with their records" and that further details were refused.
31. The appellant has supplied a possible explanation as to why the State Bank of India refused to confirm the veracity of the documents or to give any further explanation: having realised that two people were operating the same account and one of them was not in the country, they wished to investigate the matter further and it appears that such remains the position.
32. The applicant's unchallenged evidence and that of her mother is that the disparity in the amount in the bank can be explained by withdrawals made by her mother on the day when the account was compared. They also state that her mother operated the account, with the appellant's consent, to keep it open and enable her to buy shopping and so forth in the appellant's absence. That may be a breach of the banking contract between the appellant and the State Bank of India, but it is not necessarily dishonesty.
33. Having said that, we must decide how to deal with the appeal. We do not find that the appellant was dishonest or used documents engaging section 322(1A) but we do find that it was open to the respondent to assess her bank documents as unreliable for Tanveer Ahmed reasons and to place no weight on them, leading to a refusal to award the points claimed for Maintenance (Funds).
34. We therefore set aside the decision of the First-tier Tribunal for error of law applying the decision of Judge Murray and we substitute a decision dismissing the appellant's appeal against the decision to refuse to vary her leave to remain on the basis that the documents which she produced are Tanveer Ahmed unreliable.
35. We make it clear in so doing that the allegation of deception is not made out and should not therefore be relied upon in any subsequent decision.
36. The appeal is dismissed.
Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
We set aside the decision. We re-make the decision in the appeal by dismissing it.

Signed: Judith A J C Gleeson Date: 9 September 2016
Upper Tribunal Judge Gleeson