Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/49018/2014
IA/49020/2014
IA/49019/2014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 12th May 2016
On 15th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) Sidra [S]
(2) BILAL [S]
(3) [B A]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: No legal representation
For the Respondent: Mr David Mills (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge E B Grant, promulgated on 23rd June 2013, following the hearing at Hatton Cross on 27th May 2015. In the determination, the judge dismissed the appeals of Mrs Sidra [S] and her husband, Mr Bilal [S], and their daughter, [BA], whereupon the Appellants applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are a family, comprising a wife, a husband, and their daughter, respectively, and all are citizens of Pakistan. The First Appellant, Mrs [S], was originally granted leave to enter the UK as a Tier 4 (General) Student and in August 2012 she was granted leave to remain as a Tier 1 (Post-Study) Migrant until 22nd August 2014. Mrs [S] subsequently applied for leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant under the points-based system and her application was refused on 21st November 2014. It is at this stage that she appealed and the appeal was dismissed by Judge E B Grant.
3. The major issue before the judge was the existence of an interview record which it was alleged demonstrated inconsistencies of such a nature as to leave doubts as to whether the application in question involved a genuine entrepreneur, for the purposes of paragraph 245DD(h) of HC 395. The Appellant's case was that her business was to run unreserved legal services and that the interview had failed to establish that this was not a credible venture, and the disclosure of the interview record would prove this.
The Judge's Findings
4. At the hearing itself, the judge at the outset stated (see paragraph 2) that she had
"received a Respondent's bundle on each Appellant's file, a combined Appellant's bundle and a temporary migration credibility interview template which was part of the enclosures D1 to D4 of the Respondent's bundle which were given to me at the hearing because they were not enclosed with the Respondent's bundle sent to the Tribunal" (paragraph 2).
The Appellant however continued to maintain that she herself had not been given access to this interview record, even at the hearing.
5. The judge went on to make findings that, "having read the interview record of her interview with the Respondent I find that her claims that she is an entrepreneur running an unreserved legal services business to be incredible ?" (paragraph 11). The judge concluded that the appellant "is not a credible witness" (paragraph 11). The judge then went on to give three specific reasons as to why the unreserved legal services business was not credible.
6. First, it was not credible that someone who generally operated their own website would need to search for it in Google in order to access it on any particular day (paragraph 11).
7. Second, the Appellant's evidence about her three contracts was not credible because these do not demonstrate that she has legal skills and knowledge to provide the services she claims.
8. Third, the business was registered in Bradford but the Appellant had since moved to Luton and it was not credible that she could provide documents, research or paralegal services for companies based in West Yorkshire (paragraph 13). Having made these findings, the judge stated that "although having read the interview record I agree and concur with the reasons given in the refusal ?" (paragraph 14). The permission to appeal was given by the Upper Tribunal specifically on the basis of the non-disclosure of the interview record.
9. The Upper Tribunal stated, upon examination of the file, that, there was a record of interview with the Appellant that took place on 10th October 2014; that it was clear that the judge took it into account (see paragraphs 11 and 14); and that according to the judge's Record of Proceedings, the Appellant's representative "stated in submissions that 'the iv record is not with us'." The grant of permission goes on to say that, "as it is not clear precisely what aspects of the interview record were relied upon by the judge, I am unable to rule out the possibility that the Appellant's answers at her interview might have been material to the judge's reasoning".
10. At the hearing before me, Mrs Sidra [S], the First Appellant herself, attended to represent the appeal. She still maintained that, if her integrity had been impugned on the basis that she was not credible, and if this was done on the grounds that the answers given during the interview, gave cause for concern, then the interview record should have been disclosed to her side. It was not. She had emphasised that it was not.
11. For this part, Mr Mills submitted that this could not be plausible because, although the initial bundle of the Respondent did not include a copy of the full interview transcript, a subsequent bundle from the Respondent's side did include this transcript, and it was the basis upon which the judge had subsequently then dismissed the appeal, after having placed reliance on it. If at the hearing itself, the Appellant's side did not have disclosure of the bundle, she was represented by a Mr Mannan (Counsel), and it was open to him to object to the non-disclosure of the interview record. Yet, the determination did not disclose any reference to the Appellant not having access to the interview record. The judge was entitled to conclude that the Appellant was not credible.
12. I asked Mr Mills whether Mrs Sidra [S] now had disclosure of the interview transcript. Mr Mills submitted that he had passed on a copy of the interview record to her. However, Mrs [S] replied that she did not have the full transcript itself because at the end of the transcript the interview should end with confirmation that the parties had understood the questions and had been happy with the answers given, and that last page was missing.
13. I directed that the full transcript should be disclosed to Mrs [S] so that she could satisfy herself that if there was an allegation of lack of credibility, this was properly granted in the interview record. Mr Mills produced a copy. The court usher photocopied the entire transcript. When I looked at the transcript myself, I noticed that this transcript now included the last page (D5) which was missing even from the Tribunal's file before this court.
14. The Tribunal file currently before me began at D1 and had "the temporary migration credibility interview template (Tier 1)" and ran into four pages, but did not include the fifth page, which was the page that Mr Mills' copy now contained. I pointed this out to Mr Mills. Mr Mills submitted that even if this was the case, the judge had given three additional reasons to conclude why the claim put forward as an entrepreneurial business woman by the Appellant was not a credible claim. The two could have been properly dismissed on that basis alone by the judge as it was. There was no material error of law. I am satisfied that this was not the case. I give my reasons below.
Error of Law
15. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCA 2007) such that I should set aside the decision. My reasons are as follows.
16. First, if one looks at the clarity of the interview ending with page D5, the interviewing officer, Janice O'Neill, completes the last section which has the question "was the customer credible at interview?" with an answer "yes". Underneath the heading "Recommendation Summary", the interviewing officer has inserted, "the applicant answered all questions satisfactorily and I therefore deem her to be a credible entrepreneur at the interview stage of the application".
17. I must say that it is a matter of some concern to this Tribunal that first, the interview transcript is not disclosed in the original Respondent's bundle.
18. Second, when it is disclosed, it is not disclosed to the Appellant's side, but only disclosed to the Tribunal.
19. Third, the version that the Tribunal had, (and the version that Judge E B Grant had) does not include the last page (D5).
20. Fourth, the version that is before this Tribunal, even after an appeal has been lodged, and permission granted for this precise issue to be determined, again does not include page D5, which contains the vitally important statement that, "the applicant answered all questions satisfactorily" and that she was "a credible entrepreneur" at this stage. This is not a material non-disclosure but it is tantamount to wrong foot the Appellant's side which leads to a procedural unfairness.
21. Fifth, insofar as Mr Mills' submission is concerned that the judge gave additional reasons (at paragraphs 11 to 13) for why she concluded that the Appellant was not an entrepreneur running an unreserved legal services business in a credible fashion. It is clear that these additional reasons are predicated on the finding of lack of credibility, both before the additional reasons are given, and after they are given. The additional reasons can simply not stand on their own and are tainted by what the judge believed to have been in the interview record.
22. Indeed, the judge in turn states that, "having read the interview record of her interview with the Respondent I find that her claims that she is an entrepreneur ? is not a credible witness" (paragraph 11). She ends by stating that, "although having read the interview record I agree and concur with the reasons given in the refusal that the Appellant is not a genuine Tier 1 (Entrepreneur) and I agree with the decision of the Respondent" (paragraph 14).
23. How this could possibly have been a conclusion that could have logically been arrived at is difficult to see because, now that one has the full transcript of the interview, it is plain that the answers are all given in a perfectly reasonable and adequate manner, and indeed, the interviewing officer ends by concluding that all the answers were answered satisfactorily.
24. Therefore, the interview record could not have been a basis for concluding that the Appellant was not embarking upon a business of unreserved legal services. This is all the more troubling given that the principal Appellant has an LLM in International Commercial Law, and is versed in matters of the law, although she is not legally qualified as a solicitor or a barrister.
25. It is also a matter of some considerable concern, given that her credibility was impugned on the basis of an interview which, had the last page of the interview record been disclosed, would have demonstrated that she was indeed a credible witness.
Re-making the Decision
26. I agree with the decision on the basis of the findings of the original judge, the evidence that was before her, and the submissions that I have heard today.
27. I am allowing this appeal to the extent that it is remitted back to a judge at Hatton Cross, other than Judge E B Grant, to be re-heard again, with all positive findings to date remaining intact in favour of the Appellant for one simple reason. What the interview record by the interviewing officer, Janice O'Neill states, is that the Appellant is deemed to be credible "at the interview stage of the application". That does not mean to say that the application would automatically thereafter have succeeded or that this appeal should automatically succeed.
28. There were still additional matters, which Judge Grant in this case was perfectly entitled to consider namely, in relation to the website, the contracts made, and the relocation of the Appellant from Bradford to Luton, which is some considerable distance from her place where she is providing paralegal services for companies based in West Yorkshire, while she lives in Bedfordshire (see paragraph 13 of Judge Grant's determination).
29. These are matters which must be considered on the basis of the oral evidence of the Appellant once again, but with the added advantage to her of her interview record being in her favour, and this must be undertaken by another judge at Hatton Cross.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it is to be set aside. I set aside the decision of the original judge. I re-make the decision as follows.

This appeal is remitted back to the First-tier Tribunal under Practice Statement 7.2(b) to be determined by a judge other than Judge Grant at Hatton Cross.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 13th September 2016