Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/52728/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 7 March 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

Tufayel Ahmed
(Anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Miah, Counsel, instructed via Public Access
For the Respondent: Mr P Singh, Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal by a citizen of Bangladesh against a decision of the First-tier Tribunal dismissing his appeal against a decision of the Secretary of State to refuse him leave to remain as a Student Migrant. The application was refused because the Secretary of State was satisfied that the appellant had been working contrary to the requirements of his leave. The First-tier Tribunal agreed with that decision and dismissed the appeal.
2. There was a difficulty highlighted by the grant of permission. At the hearing it seems that the Presenting Officer wrongly conceded that a higher standard of proof applies and this concession and any consequences of it were not reflected properly in the decision. The judge was unimpressed by the concession and directed himself, I find quite correctly, that the ordinary civil standard of proof applied.
3. There is a helpful reply signed by Ms Pal, who is, I know, an experienced Senior Presenting Officer, who says simply:
“It is respectfully submitted that the correct standard of proof is the normal civil standard. The heightened civil standard was laid to rest in the House of Lords decision in Re B (Children) [2008] UKHL 35.”
If I may say so, the description “laid to rest” was particularly apt and it would be helpful if everyone practising in this jurisdiction took that to heart.
4. It was not argued before me that the appellant had been disadvantaged unfairly by the judge applying a standard of proof other than the one which was agreed. I make that point but I do not suggest that this is an omission on Mr Miah’s part. On the contrary, it would seem clear to me that nothing turns on the judge applying the correct standard of proof when it was agreed that a different standard applied. This is because the judge has given clear and proper reasons for his decision.
5. Critically, at paragraph 15 of his decision the judge, directed himself that he would apply the correct standard of proof, namely the ordinary civil standard. He reviewed the evidence and the evidence was that the appellant was found in a kitchen wearing a white jacket, this was not disputed, and noted the appellant’s explanation that he was there for an innocent purpose but found that unbelievable. Paragraph 19 is particularly telling because the judge looked at evidence from the Secretary of State that the owner of the restaurant had been interviewed by Immigration Officers and had said unequivocally that the appellant had been working there for a time. Ideally that would have been proved by calling the restaurant owner. It would have been better if that was not possible if it had been proved by producing notes of the interview but that was not done and that necessarily weakened the evidential weight.
6. However, the judge asked himself, perfectly sensibly, where that evidence came from if it did not come from the mouth of the restaurant owner, and he could find no reason for the Immigration Officers making up such a contention or misunderstanding things that were said and he balanced that against the absence of any independent evidence supporting the appellant and concluded that it was probable that the appellant had been working as he appeared to have been when the Immigration Officers visited and as the restaurant owner confirmed was the case. I can see no proper basis for criticising that decision.
7. Mr Miah properly and helpfully pointed out possible difficulties in the chronology because there is a gap between the notes being started and the entry to the restaurant which is not explained and pointed, out again, I think. rightly, that possibly a bit more could have been said about the appellant’s explanation in an ideal world but these are not criminal proceedings and I am quite satisfied that the judge reached the decision he was entitled to reach on the evidence before him for the reasons that he gave.
8. No judge is blessed with divine insight. Nobody knows what happened but the judge’s conclusion on the evidence was entirely rational. He directed himself correctly. He applied his mind to the facts and reached a conclusion that was open to him. It follows therefore that notwithstanding Mr Miah’s concise and sensible submissions I am quite satisfied that the decision is right in law and I dismiss the appeal.

Notice of Decision

The appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 7 March 2017