Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02104/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28 June 2013
On 10 July 2013

Before

UPPER TRIBUNAL JUDGE PINKERTON

Between

MR Md. YEASIN MIA
(NO ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M I Hossain
For the Respondent: Ms M Tanner, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Bangladesh who was born on 9 January 1989. On 30 July 2012 he applied for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant under the points-based system. The application was refused. A decision was also made to remove the appellant from the United Kingdom by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006.
2. The reasons for refusal state that the appellant submitted documents purporting to have been issued by Mercantile Bank Limited. The Secretary of State was satisfied that the documents are false, as Mercantile Bank Limited confirmed that they did not issue them. On the basis that false documents had been submitted in relation to the application it was refused under paragraph 322(1A) of the Immigration Rules and as a result there was a refusal of the application for leave to remain as a Tier 4 (General) Student Migrant under paragraphs 245ZX(a), 245ZX(d) and 322(1A).
3. The appellant appealed that decision. The case came before First-tier Tribunal Judge Braybrook. In a determination promulgated on 2 April 2013 the judge dismissed the appeal under the Immigration Rules but found that the decision to remove under paragraph 47 is not in accordance with the law.
4. The appellant applied for permission to appeal to the Upper Tribunal. Permission to appeal was granted. It was found arguable that the judge erred in failing to consider Article 8 ECHR when it was clearly raised and argued before her. Although it was not considered that there were merits in the other grounds raised, all were found to be arguable.
5. The respondent filed a Rule 24 response on 31 May 2013. The response is to the effect that the judge was fully entitled to conclude that the course that the appellant was on did not represent academic progress and that there was no adequate evidence to overturn the Document Verification Report ("DVR"). The burden fell on the respondent to the balance of probabilities to establish that the bank statement was not reliable and it was open to the judge to conclude that it was made out. Although the failure to consider Article 8 may amount to an error in law, on the evidence before the judge and in light of the findings on the substantive immigration issue, the respondent considered that no properly directed Tribunal would have found a disproportionate breach of the appellant’s Article 8 rights. It is asserted that the grounds are a disagreement with the findings and do not disclose an error of law.
6. The grounds for seeking permission to appeal submit that although the judge noticed the ambiguity of the DVR she nevertheless went on to support the finding that the bank statement from Mercantile Bank was false. The respondent needs to prove the allegation brought by her to a higher standard but she has failed to do so. The allegation against the appellant is a serious one which has very serious likely consequences for him.
7. In relation to the academic progress it is asserted that the judge overreacted and “diverted from the issue”. The judge emphasised how the appellant travelled to and from Lancashire whereas that is not the issue in the case. The judge failed to identify that the refusal letter had been sent to the appellant at his Birmingham address and that later the appellant changed his address. The judge ignored the important matter that the respondent failed to show the transcript she relied upon and the appellant submitted a CAS which clearly stated that he had completed his previous level 5 course and naturally progressed towards level 6 thereafter. The judge also failed to deal with the appellant’s Article 8 position.
The error of law finding
8. I heard submissions and I have taken them into account. I announced at the hearing that I found that the decision of the First-tier Judge should not stand. This was mainly by reason of the judge’s handling of the issue as to whether the document from Mercantile Bank Limited was a false one. The judge was faced with (at D1 of the respondent’s bundle) a letter dated July 11 2012 from Mercantile Bank Limited in Dhaka, a bank statement at D2 of the same bundle and a copy letter dated March 3 2013 from the same bank at 21 of the appellant’s bundle.
9. There is no direct reference to the burden and standard of proof in appeals of this nature anywhere in the determination. That would not necessarily matter if it were made clear that the judge considered the serious consequences for the appellant in making a finding that he produced a false document or documents in support of his application. There is reference to being “satisfied that the DVR states that the information from the bank was that the account does not exist and that there was no ambiguity on this core point” and to applying “Tanveer Ahmed”. There is no self-direction or similar in the determination to indicate that the judge in fact applied the relevant case law. There is the additional point that the judge failed to deal with Article 8 at all and as a result I announced that I did not find the decision to be a safe one.
The further Hearing before me
10. I indicated to Mr Hossain that I would therefore proceed to hear the appeal de novo. I was already aware that his client, the appellant, was not present in court and I asked if he had an application to make with regard to the possibility of adjourning the proceedings. Mr Hossain responded that he wished to proceed on the day. He relied solely on what was before the previous judge and there was no additional evidence, although I observed that the obvious evidence that was missing would be that from the appellant himself made orally.
11. Ms Tanner commented that it would be difficult to proceed without sight of the transcript (from the previous course provider) which is referred to by the respondent. However, the appellant through his representatives wished to proceed and the burden is on the appellant to prove his case.
12. I had before me the same documentation that was before the First-tier Tribunal Judge. The overseas DVR is the first matter that I deal with. The basis of the document being verified as false is that an Entry Clearance Assistant with UK Border Agency Visa Services in the British High Commission Dhaka for more than six years gave details as to how the document was so verified and did this in the following terms:-
“I contacted the above-named bank at 14:03 hours on 18 November 2012. I contacted the bank on telephone number 8333016, which I obtained from our phone directory. The bank representative confirmed that the bank records indicate that this account does not exist.
The information held by the bank differs from what is detailed in the documents that were provided in support of the application form. As such I am satisfied that the statement and solvency letter for account number 013441110052189 are non-genuine.”
13. It was on that basis that the refusal under 322(1A) of the Immigration Rules was made.
14. The general grounds for refusal section 4 – v 13.0 valid from 21 March 2013 issued by UKBA makes clear that for a refusal to be made under paragraphs 322(1A) or 322(2) there must be positive evidence to prove that the applicant has lied or submitted a false document. The burden of proof is said to be to a “higher standard of probabilities” which means that it must be more likely than not that the applicant has made false representations or given forged documents to obtain leave. It is said not to be appropriate to refuse a current application under paragraph 322(1A) simply because you (the caseworker) are not satisfied that the appellant is telling the truth. Later in the same guidance at page 12 under “standard of proof” it is stated
“to confirm that a document is false you must get independent evidence. Ideally, you should ask the authority which issued the document or information to confirm in writing that it is not genuine. When this is not possible, you should consider whether you can refuse the application for substantive reasons”.
15. I see little argument with the guidance that is set out as quoted above to caseworkers. The standard of proof in proceedings of this type in the Immigration and Asylum Tribunal is the civil one of the balance of probabilities. Although Lord Hoffman in B (Children) Re [2008] UKHL 35 emphasised in such appeals that the seriousness of the consequences do not require a different standard of proof or a specifically cogent standard of evidence, for the respondent to discharge the burden of proof on the balance of probabilities he/she needs to furnish evidence of sufficient strength and quality and that evidence must be submitted to critical scrutiny.
16. This has not been done in this appeal. The person who made the telephone call to the bank did not name the person to whom he or she spoke at the bank. There is no indication that a request was ever made to the bank to confirm in writing the information that was given over the telephone or that if a request was made but refused, or there was no response, the reasons given for refusing or the fact that there was no response.
17. These I find to be important omissions and subtract from the weight that I would otherwise give to the DVR. As a result I am not able to find to the appropriate standard that the application should have been refused under paragraph 322(1A). Having submitted the evidence to critical scrutiny it is of insufficient quality to show that on the balance of probabilities the respondent has proved the appellant has made a false representation or provided a false document.
18. Having come to that finding I proceed to consider the evidence that is before me. It is unexplained to me why the letter of July 11 2012 (D1) lodged in support of the application to the respondent makes reference to an account balance of Tk.14, 45,771.23 as does the letter dated March 3 2013 provided to the Tribunal at 21 of the appellant’s bundle when the bank statement itself that was produced and generated on 11 July 2012 refers to a different amount, the balance being Tk.1, 454,771.23. I do not understand why the same mistake would be perpetrated in two letters written some eight months apart.
19. Furthermore I have no idea why the letter of July 11 2012 makes reference on it to “the seal and signature of the attestor is hereby attested on 12 July 2012 by Md Asghar Hussain Assistant Secretary Ministry of Foreign Affairs Dhaka” when it was signed by what appear to be two bank officials the previous day. Why would the Assistant Secretary in the Ministry of Foreign Affairs have attested the document at all? I do not know the answer and the appellant in his statement does not refer to it and was not available to give oral evidence.
20. The letter dated 3 March 2013 from the bank confirms that it has no record of investigation of the above account from any authority. Had the respondent named the person to whom the assistant had spoken this is a matter that might have been resolved when the appellant apparently contacted the Bank himself.
21. These matters do not prove that the documents provided are false but neither do I find that it is proved to the relevant standard that they can be relied on.
22. I now turn to the substantive reasons for refusal of the appeal. The refusal was under paragraph 245ZX(a) which refers to the applicant not falling for refusal under the general grounds for refusal. That point now falls away. Paragraph 245ZX(d) requires that the appellant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C. An applicant in this category must score 10 points for funds. There are question marks over the evidence provided to show that there are sufficient funds to provide for the course fees and maintenance for the period of the course. If the amount in the bank account in July 2012 was in the amount asserted then that equates to a sum in the region of £12,000 which more than covered the requirement and as a result the appellant would be entitled to 10 points for funds if the evidence produced is accepted.
23. The remaining reason for refusal is that the appellant under Attributes – Confirmation of Acceptance for Studies - claimed 30 points but was awarded none. This was on the basis that the CAS stated that he intended to study a Diploma in Management at NQF/QCF level 6 and that his current course represented progression from studies previously undertaken at NQF level 5. However, the transcript provided from Metro College of Management Sciences is said to show that the appellant previously studied at NQF level 6. The Tier 4 sponsor has therefore not sufficiently demonstrated how the appellant’s current course constitutes academic progression. That is the reason for no points having been awarded for the CAS.
24. The transcript referred to provided by Metro College of Management Sciences was not in the respondent’s bundle. There is a written statement from the appellant dated 25 March 2013 at 3 and 4 of the appellant’s bundle of documents. There is a signature on that statement but underneath it is stated “instructed over the phone”. In that statement the appellant says that his current course represents academic progression from his previous course as the previous one was at NQF level 5 and his current course is NQF level 6. That concurs with the CAS provided by St John’s College. This states that the current course is higher than the previous one which was at NQF level 5. Under “other evidence” for making that statement the documentation used to obtain the offer included a Diploma in Business Management issued from Metro College of Management Sciences UK. Whether that included the transcript the CAS does not state.
25. The respondent has referred to the transcript showing that the appellant previously studied at NQF level 6 but has not produced that transcript. The appellant has not produced it either and although I have no direct evidence about it Mr Hossain said that it had been lodged with the respondent and a copy was not kept. The appellant does not refer to that transcript in his statement and does not appear to have made any effort to obtain it. Its production would prove one way or the other the status of the previous course. I note, however, and give weight to the fact that according to the CAS the previous course followed by the appellant was a “Diploma in Business Management issued from Metro College of Management Sciences, UK” and the current course is “Diploma in Management”. On the face of their titles the courses sound very similar indeed.
26. Paragraph 120A (a) of Appendix A states that points will only be awarded for a valid Confirmation of Acceptance for Studies … if the sponsor has confirmed that the course for which the Confirmation of Acceptance for Studies has been assigned represents academic progress from previous study as defined in 120A (b) undertaken during the last period of leave as a Tier 4 (General) Student or as a student where the applicant has had such leave. Under (b) for a course to represent academic progress from previous study the course must be above the level of the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a student or involved further study at the same level, which the Tier 4 sponsor confirms as complementing the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a student.
27. Although the transcript provided from Metro College of Management Sciences has not been produced it is difficult to understand why the respondent would refer to it specifically as showing the appellant studying previously at NQF level 6 unless that were indeed so. The other possibility is that the respondent simply made a mistake and the transcript either said nothing of the sort or was produced in relation to someone else entirely. Either possibility I find is unlikely as it formed one of the cornerstones of refusal.
28. The appellant asserts simply that the current course represents academic progression and to give weight to that assertion refers to the information provided in the CAS. However, nowhere has he specifically dealt with the transcript point or, seemingly attempted to obtain further evidence in relation to it either from the respondent or by contacting Metro College of Management Sciences to obtain a further transcript. He did not give oral evidence before me and I remind myself that the burden is upon the appellant to prove his case and this is on the balance of probabilities.
29. This is all very unsatisfactory. The documentation produced in relation to the bank account as I have already found does not show that the appellant produced false documents but I do not find I am able to rely upon that documentation entirely and this is for the reasons stated above.
30. The appellant has been represented throughout and yet has not provided the evidence that may have persuaded me that he has complied with the requirements of the Immigration Rules. He made the decision, it seems, not to give oral evidence and be tested under cross-examination preferring to rely on written documentation. His written statement does not deal with the important issues in any depth. He does not, for instance, refer anywhere to the transcript point. He does not state that the respondent is entirely mistaken as to what it said or that it said something other than the respondent asserts or even that the transcript itself does not reflect the true position.
31. Weighing all these matters in the round I am unable to find on the balance of probabilities that the appellant has proved that he succeeds under the Immigration Rules and the claim therefore fails under those rules.
Article 8 ECHR
32. I now turn to the Article 8 claim. The appellant has been in the United Kingdom since 31 March 2011. He will have developed a private life since arrival that is worthy of respect. He does not have any expectation of remaining in the United Kingdom. His statement refers to returning to Bangladesh at the end of his studies here. There is no evidence before me to which I can attach any weight that tells me anything about the appellant’s social ties and relationships formed during his period of study. A student in the United Kingdom on a temporary basis has no expectation of a right to remain in order to further these ties and relationships if the criteria of the points-based system are not met. The character of the appellant’s individual private life is ordinarily by its very nature of a type that can be formed elsewhere albeit through different social ties after he is removed from the United Kingdom. I conclude that the respondent has shown that the public interest in proper and effective immigration control in the circumstances of this appeal outweigh the private life claim of this appellant as put before the Secretary of State and myself.
33. As the judge in the First-tier found the decision to remove the appellant being contained as it is within the same document as the reasons for refusal is not a decision made in accordance with the law and it will be for the respondent to decide if a lawful decision is to be made. As it stands the appeal fails under Article 8 ECHR also.
Decision
34. The First-tier Tribunal Judge erred in law for the reasons given above. I substitute for that decision that the decision to refuse under paragraph 322(1A) of the Immigration Rules cannot stand but that the appellant has not satisfied the requirements of the Immigration Rules and the appeal is therefore dismissed under those Rules.
35. For the above reasons also the appeal is dismissed under Article 8 ECHR.
36. No anonymity direction has been made; there was no argument for me that one should now be made and I see no good reason to make such a direction.

Signed Date

Upper Tribunal Judge Pinkerton