The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/01935/2013


Heard at Bradford
Determination Promulgated
On 8th July 2013
On 12th July 2013




khurram shahzad





For the Appellant: Mr Islam, instructed on behalf of Abbott Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer


1. The Appellant is a citizen of Pakistan born on 5th February 1987. The Appellant appeals with permission against the decision of the First-tier Tribunal who dismissed the Appellant’s appeal for want of jurisdiction in a determination promulgated on 15th April 2013. Permission has been granted on all grounds by Judge Nightingale on 8th May 2013 in which she considered it was arguable that the finding that there had been a concession as to payment of the appropriate fee with the initial application had been wrongly made and that the “judge failed to appreciate the Respondent bore the burden with regard to the production of the evidence of non-payment of the appropriate fee”.
2. The salient facts of the appeal are as follows. The Appellant was granted leave to enter the UK as a student on 13th March 2011 such leave being valid until 21st April 2012. On 21st April 2012, he applied for an extension of his visa by way of recorded delivery. This was returned with a letter dated 24th April from the Respondent noting “invalid immigration application” the reason given that the appropriate new fee had not been received with this attempted application. Thus the application was considered to be invalid. The application was resubmitted on 28th April with the fee again. The application was the same application that had been made previously in all material aspects, namely an application for leave to remain as a Tier 4 (General) Student Migrant under the points-based system. The Appellant heard nothing more until the Secretary of State issued a decision on this application on 31st December 2012. The application was refused under paragraph 322(1A) with reference to paragraph 245ZX(a) of the Immigration Rules. It was noted by the Respondent that the Appellant had submitted a letter from the National Savings Centre dated 10th April 2012 in the account name Khurram Shahzad with account number SA-0002321 and that the Secretary of State was satisfied that the document was a false one because after checks with the concerned branch confirmation had been received that the letter was not authentic nor had it been issued by the concerned branch. In the light of that information the bank letter had found to be “not genuine”. As a false document had been submitted in relation to the application, it was refused under paragraph 322(1A) of the Immigration Rules. Thus it was also noted that the Appellant could not satisfy the requirements of the Immigration Rules under Tier 4 under paragraph 245ZX(a) or 245ZX(d). For the above reasons, the Respondent was satisfied that he had used deception which meant that any future applications for entry clearance or leave to enter the UK would be refused under paragraph 320(7B) of the Immigration Rules.
3. The letter further set out that the application dated 28th April was made after the leave had expired and thus he had no leave to enter at the time and thus there was also no right of appeal.
4. Grounds of Appeal were filed on behalf of the Appellant and in light of the refusal letter stating that there was no valid appeal the matter came before the Duty Judge, First-tier Tribunal (Judge Clark) at Leicester. He provided a determination dealing with the validity of the appeal and in the determination promulgated 25th January 2013 the judge considered the Grounds of Appeal and in particular the decision of Basnet (validity of application – respondent) Nepal [2012] UKUT 00113 (IAC) which determined that if the Respondent asserted that an application was not accompanied by a fee, and so was not valid, the Respondent had the onus of proof. Further the Respondent’s system, of processing payments of postal applications risked falling into procedural unfairness. The judge noted at paragraph 5 that he followed that decision and directed the Respondent to provide information to determine whether the application was accompanied by a fee. He considered there was a right of appeal as he had submitted the first application at a time when he had leave to remain thus he found there to be a valid appeal.
5. It is common ground between the parties that the Respondent failed to comply with that direction made by the First-tier Tribunal in January 2013.
6. The matter came before the Tribunal on 9th April and it considered as a preliminary issue whether the Tribunal had jurisdiction to entertain the appeal, noting that the application for leave to remain was made on 28th April after his leave had expired on 21st April. The judge however considered that there were arguments capable of being advanced on behalf of the Appellant in the light of the decision of Basnet (already referred to and cited herein).
7. It is recorded at paragraph 4 that Mr Khan (who was then the legal representative) conceded that on instructions the first application had been accompanied by a bank authorisation to pay a sum that was insufficient to the relevant fee. Thus the judge acting on that found that the application was invalid and then distinguished the case from that of Basnet (see paragraph 5).
8. The Appellant sought permission to appeal. The grounds are relied upon by Mr Islam before the Upper Tribunal. In the grounds a number of matters were asserted. I need not set them all out here but the salient points are as follows. The Appellant had produced the correct account details and had showed that funds were in his account at the time he submitted it on 21st April. The First-tier Tribunal Judge Clark had found the application was valid and issued directions to the Respondent in accordance with the decision in Basnet to file evidence. The direction had never been complied with. The grounds stated that the judge’s recording of the concession was wrongly stated and that Mr Khan had made no concession on behalf of the Appellant that there were insufficient funds in the account. Furthermore, the grounds assert that the judge misdirected himself in law by asking the Appellant to give evidence of fees and that the burden was on the Respondent to prove the application was not accompanied by the correct fee.
9. In the light of the issues concerning the concession, the judge was asked to provide his Record of Proceedings. There is a letter in the bundle dated 26th May. The judge had not retained his contemporaneous Record of Proceedings and there was not one in the file. However, by considering the determination he stated that he had not suggested that there were insufficient funds in the account. At paragraph 4, the concession that he was saying had been made was to the effect that the first application was accompanied by payment in the sum that was inappropriate to the previous scale of fees, in circumstances where the Appellant was presumably unaware that they had been increased some eighteen days prior to submission. He also stated he was happy to confirm the representative did not concede that funds in the bank account were insufficient to meet the appropriate fee. He said “ It would therefore appear that there has been a degree of misunderstanding about this between myself and the representative at the hearing.”
10. Whilst the grounds refer to the concession being made that there were insufficient funds in the Appellant’s account, it is plain from the determination that what was recorded did not relate to the insufficiency of funds but the inappropriate fee (see paragraph 4 of the determination). The grant of permission made reference to Mr Khan being available before the Upper Tribunal and to make a statement attaching his Record of Proceedings as an exhibit. Mr Khan, in accordance with the directions did attend the hearing and had prepared a witness statement exhibited at page 19. There was no Record of Proceedings available according to Mr Islam.
11. Mr Islam submitted that the judge had misdirected himself concerning the burden of proof which was on the Respondent to show that the application had been accompanied by the appropriate fee. The Respondent had not complied with the directions of the First-tier Tribunal and still had provided no evidence in support of this. The Appellant had not retained the application form and could not recall the amount paid not without having had sight of the form or any evidence. As set out in the statement of Mr Khan the Appellant provided his bank details but did not remember the exact amount. He invited the Tribunal to look at the Appellant’s bank account and that it was clearly demonstrated at the time he had sufficient monies in the account, indeed the account was in funds of nearly £4,000, which supports the claim that he had sent an appropriate fee.
12. I asked Mr Khan to deal with the issue concerning the alleged concession. He submitted that it had been disputed by both the Appellant and Mr Khan that there was a concession on instructions that the first application had been accompanied by a bank authorisation to pay a sum that was insufficient with a relevant fee. He submitted that there must have been a misunderstanding on this issue and there had been no interpreter present (this being a preliminary issue) and the Appellant did not speak very good English. I asked if Mr Islam had a copy of any note on his file and he said that there was no note available. As recorded previously there was no Record of Proceedings of the judge either. I therefore asked Mr Diwnycz if there was a note from the Presenting Officer. He provided what was a short note which after the parties having read it, did not decide the issue authoritatively either way. It is recorded “A accepts he did not submit correct fee” it is also noted “applicant does not speak English very well”.
13. There is a difference from the concession recorded at paragraph 4 which is that Mr Khan conceded on instructions whereas the Presenting Officer’s note is that the Appellant accepted that he did not submit the correct fee. It is also noted that the Appellant did not speak English very well and therefore supports Mr Islam’s submission that there may have been a misunderstanding as there was no interpreter present and the Appellant was having difficulty. Thus in accordance with the directions Mr Islam called Mr Khan to give some oral evidence. In that evidence he gave an account that the Appellant told him that he had paid the appropriate fee at the time but could not remember how much he paid or from what account. Mr Islam submitted that there had been a degree of misunderstanding and that there may have been a language problem and that there had been no evidence and still no evidence concerning the application form and the fee paid despite the Appellant’s account that he had sufficient funds at the time to pay any such fee.
14. Mr Diwnycz having examined the file acknowledged that there was no copy on the Respondent’s file of any Tier 4 application made on 21st April 2013 and therefore he could not say what was in the form or what accompanied that form. Nor was there any information concerning what fee was paid or in what circumstances. He further acknowledged that the direction issued by the First-tier Tribunal in January had not been complied with and that there was no evidence at the hearing before the First-tier Tribunal or before the Upper Tribunal to demonstrate what evidence the Respondent had acted upon. As to the determination, he stated that the judge had distinguished Basnet and that he would adopt that reasoning but that he had a reasonable concern that there may have been a misunderstanding which in part was backed up by the Presenting Officer’s note.
15. I therefore have considered this appeal in the light of the information and evidence set out above. It seems to me that using the words of Mr Diwnycz there was a reasonable chance that there was a misunderstanding of what had been recorded at the hearing. It is difficult to be certain on this issue and I do not feel that I can make any finding as there is no Record of Proceedings from Mr Khan, no Record of Proceedings from the judge and only a short note from the Presenting Officer which I have referred to earlier which in part supports what was said at paragraph 4 of the judge’s determination but also in part supports what Mr Islam had submitted concerning the nature of the misunderstanding. Certainly there is no note of any official evidence given by the Appellant and it is not said by anyone that he was called to give formal evidence. This is not surprising as there was no interpreter present and the Presenting Officer recorded that his English was not very good. Thus I cannot therefore be certain as to what happened at the hearing and in those circumstances I exercise caution. I remind myself that the basis of the decision on its merits related to a serious allegation of deception made by the Appellant and one that if proved is one in which paragraph 320(7B) applies and would mean that he would not be able to make any further application. Therefore, having exercised caution the finding made falls away I have to consider whether it has been demonstrated that there was an invalid application initially made.
16. In this regard I have considered the decision of Basnet (as cited). In this case the Respondent had been specifically directed to produce evidence inline in that decision and had not complied with it. No reason has been given for that non-compliance and before this Tribunal today there is still no evidence in either the original form or the earlier evidence as to the circumstances of the payment or what payment had been made. There is no requirement for the Appellant to produce evidence. The decision of Basnet makes it clear that the issue of validity depends not upon whether the payment was successfully processed but whether the application was accompanied by the valid authorisation to obtain the fee (see paragraphs 18 and 20). In the decision the Tribunal set out the Respondent’s standard procedures at paragraph 22 and noted that there was no record of what went wrong with the payment that could be provided to the Tribunal. It was against that background that the Tribunal considered that the current system puts the evidence beyond the future reach by the party in the Tribunal (paragraph 26) when considering what would be the “best evidence” and whether an application was accompanied by the fee. In that case the Tribunal has given advanced notice that the Respondent had produced the billing data page. In relation to this appeal it was acknowledged on behalf of the Respondent that there had been a failure to comply with the direction of the Tribunal to produce evidence in support of the allegation that the correct fee had not been processed and the reason why. A direction had been made as a result of paragraph 34 of Basnet. The billing data page nor the evidence to comply with that direction was provided either before the First-tier Tribunal or now.
17. It is also clear from the decision in Basnet the question of who bears the burden of proof is upon the Respondent for the reasons the Tribunal gave at paragraph 27. In this appeal I am satisfied that the First-tier Tribunal reversed the burden of proof by requiring the Appellant to produce evidence in support concerning the circumstances of the payment. It was wrong to reverse the burden of proof and also in the circumstances when the Respondent had adduced no evidence whatsoever in respect of its allegation and had even failed to comply with a specific direction made by the Tribunal to produce such evidence. In Basnet at paragraph 30, the Tribunal was satisfied by the evidence before it that the Respondent had had funds in his account at all material times. That has been supported by documentary evidence to show he had just short of £4,000 in that account. It cannot be said however that he demonstrated efficiency in the timing of the application. The application being made on the date his leave expired. No reason has been given as to why his application should be made at such a late stage. Nonetheless, having considered the evidence in relation to this particular case there is evidence which on the face of it is to the effect that there was no evidence to support why the fee had not been accepted the burden of proof remaining on the Respondent who had produced no evidence of any kind. Thus the Respondent had failed to discharge the burden of proof not the Appellant.
18. In those circumstances, the decision of the First-tier Tribunal is set aside. It is common ground between the parties that the judge erred in law by considering the Appellant had no right of appeal. Consequently I set aside the decision and find the Appellant did make a valid appeal. As to the remaking of the decision on its merits, this requires an oral hearing given the seriousness of the allegation made of deception against this Appellant. The Respondent should ensure that all documentation is available for the First-tier Tribunal to decide this case on its merits including any document verification report in support of its assertion that the Appellant had produced a false document and therefore paragraph 322(1A) of the Immigration Rules applied. As this is a case where the merits of the application have not been considered, both parties submit that it should be remitted to the First-tier Tribunal. I agree and find that this appeal is in accordance with the practice statement of 10th February 2010 (as amended) and having regard to the overriding objective and the deficient disposal of appeals, I direct that the decision is remitted to the First-tier Tribunal. No findings of fact were reserved who will consider the appeal on its merits after hearing full argument.
19. The decision of the First-tier Tribunal is set aside and remitted for the First-tier Tribunal for a hearing in accordance with Section 12(2)(b) of the Tribunals, Courts and Enforcement Act and practice statement of 10th February 2010 (as amended).

Signed Date11/7/2013

Upper Tribunal Judge Reeds