Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/01737/2015
OA/01745/2015
OA/01746/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 26th July 2016
on 17th August 2016

Before

upper tribunal JUDGE MACLEMAN

Between

ENTRY CLEARANCE OFFICER, ISLAMABAD
Appellant
and

mr asad noor jaan
mr farhan noor jaan
mr nouman noor jaan
Respondents

Representation:
For the Appellant: Mr M Mathews, Senior Home Office Presenting Officer
For the Respondents: Mr G Singh, of Ethnic Minorities Law Centre, Glasgow

DETERMINATION AND REASONS
1. The parties are as described above, but the rest of this decision refers to them as they were in the First-tier Tribunal.
2. The appellants are three brothers, all citizens of Afghanistan, who applied for entry clearance with a view to settlement as the children of a person settled in the UK, their father.
3. The ECO refused their applications by notices which bear the date 15th December 2013, although that seems to be an error; they should have been dated 15th December 2014.
4. One of the ECO's reasons was that although the applicants stated that their mother was dead, the evidence submitted was a death certificate issued by Khyber Teaching Hospital, and "not an officially recognised, State issued death certificate". It was not considered to be satisfactory evidence that the mother of the appellants had died.
5. The ECO was sceptical of the birth certificates submitted, because they were obtained long after the births from the Afghan Ministry of Internal Affairs, and such documents could be "easily obtained ... based on self-declared information and without thorough checks being carried out". Certificates of birth from Paktia Public Health Hospital were not officially recognised State recognised certificates and were very similar in each case. Although they bore to be issued at the time of the births it was "reasonable to conclude by inspection that these documents do not date from the time of birth and were issued very recently ... it is likely that all three documents were issued on the same occasion".
6. The ECO also doubted that the sponsor was the father of the appellants. That point has since been resolved by DNA evidence, and is no longer in issue.
7. The three appeals appear to have been filed with the First-tier Tribunal on 14th January 2015.
8. In a decision dated 26th May 2015 an Entry Clearance Manager maintained the adverse decisions, noting that no fresh evidence had been submitted, and that an official death certificate would have been required in order to repatriate the appellants' mother's body to Afghanistan from Pakistan. Although the appellants said in their grounds that additional documents would be submitted at a later stage, the ECM found it unclear why this had not been done at the earliest opportunity so that the matter might be resolved. The ECM requests that "any documents submitted for the first time at the appeal stage are carefully scrutinised" and that no weight should be given to "post-decision documents produced as evidence".
9. First-tier Tribunal Judge D'Ambrosio allowed the appellants' appeals by decision promulgated on 30th November 2015.
10. There are with the tribunal file two copies of the "appellants' primary bundle" which comprises 61 items over 273 pages. Items 18 to 31 are headed "Authenticated Documents". The first item is the death certificate of Merag Noor "stamped and attested as authentic by the Foreign Ministry of Pakistan and Ministry of Foreign Affairs Afghanistan", page 122. The documents next following relate to the births of the three appellants. All these items, in both bundles, appear to be copies.
11. The judge says at paragraph 6:
"Before hearing evidence, Mr Singh [for the appellants] asked leave to lodge originals of documents Items 17 to 32 inclusive which were already lodged in the appellants' bundle. Mr Govan [the Presenting Officer who appeared for the respondent] opposed the lodging of Items 18 to 32 ... for reasons stated in my Record of Proceedings I allowed Mr Singh's motion. I then refused Mr Govan's motion to adjourn the hearing to allow the respondent to check those original documents via the ECO abroad. I so refused for reasons stated in my Record of Proceedings."
12. I cannot locate on the Tribunal file any originals of documents Items 17 to 32.
13. The ECO's first Ground of Appeal to the Upper Tribunal complains that when original certificates were produced on the day of the hearing, 6th November 2015, they contained stamps which were not present when the certificates were submitted with the application, and that was the first occasion when the ECO had sight of certificates with stamps, despite these apparently having been in the possession of the sponsor for three to four months (the date of receipt is taken from paragraph 25 of the judge's decision). The refusal to adjourn for the validity of the original certificates to be checked is said to be a procedural error making a real difference to the fairness of the proceedings.
14. Ground 2 criticises the reasoning of the judge at paragraph 31, where he concluded that the certificates were valid.
15. In a skeleton argument provided to the Upper Tribunal the appellants say that the evidence was provided on 28th October 2015 for a hearing on 6th November 2015, six clear working days ahead, "a reasonable amount of time for the ECO to consider the evidence relied upon". The request for adjournment was therefore unreasonable. The appellants had no reason to claim falsely that their mother was deceased. Had she been alive, she would have been included in the entry clearance application. The sponsor was found credible. It was absurd to question whether his wife was alive. It was not normal in a small village in Afghanistan to register or obtain identity or birth certificates until they were actually needed. The ECO had not taken into account the circumstances of the appellants and the practices of villages in Afghanistan. The failure of the ECO to place weight on the evidence provided by the documents provided with the application was "negligence" on the part of the ECO. The ECO could have requested an adjournment earlier, if further time were required.
16. The judge's reasons for refusing the adjournment application do not appear in any Record of Proceedings so far as I have been able to identify from the file. In any event, the reasons for deciding a point which was obviously of some importance should be available in the decision communicated to the parties.
17. Mr Mathews advised that according to the record kept by the respondent, the submission to the First-tier Tribunal had been that an ECO would be best placed to check on the validity of the documents, having the local contacts to do so. The representative for the appellants had said that they were not submitted earlier because the appellants waited until all other evidence was available, and did not wish to submit piecemeal. That was not a good reason for giving the ECO no realistic time period within which to verify the evidence. The reasons recorded as given by the judge at the hearing were that even if a document verification report could be obtained, nevertheless he would have to decide the question; that he could deal with the matter on the basis of submissions; and that an adjournment was not in the interests of justice, especially as the three appellants were all children. Whether the matter had been renewed in submissions was not recorded. Mr Singh agreed that the foregoing was a fair account of what took place at the hearing, at which he was present.
18. Mr Mathews submitted that the judge's explanation at paragraph 81 was difficult to follow and appeared illogical. It was highly unsatisfactory that the sponsor and appellants had the stamped documents three to four months in advance of the hearing, but did not produce them until shortly before. The fact that it had been thought necessary to add stamps to the documents was an implicit admission that the originals were insufficient. The essence of the point was procedural unfairness. If the decision were to be set aside, a period of four weeks should be sufficient for verification. As this was the only outstanding issue, Mr Mathews accepted that if verification showed the evidence of the mother's death to be genuine, no further proceedings should be required. Alternatively, he said that if the documentation was thought to be false, the matter should revert to the First-tier Tribunal for a fresh hearing.
19. Mr Singh submitted, further to the skeleton argument, that the ECO could have carried out enquiries based on the unstamped documents. The documents were the same, except for the stamps. The appellants had proved their relationship to the sponsor by way of DNA evidence which had not been available at the time of the ECO's decision. The ECO was now clutching at straws. The judge's decision was careful and thorough. It was undesirable that there should be further delay as the entire process had already taken two and a half years. Significantly, the evidence of the sponsor had been found credible, and that went also to the death of the mother of the appellants.
20. Mr Mathews in response submitted that if the appellants had been faced with significant fresh evidence at such short notice, it was inconceivable that they would not have been entitled to a reasonable opportunity to make the necessary enquiries and prepare a response.
21. I reserved my decision.
22. It was plainly unsatisfactory to tender significant new evidence only a few working days before a hearing, when that evidence could have been provided much earlier; and it seems that the originals were held back until the day, without any explanation of that point. The proper course would have been to lodge the evidence as soon as possible with the Tribunal and to intimate it immediately to the respondent, so that any checks thought necessary could be undertaken.
23. The ECO does not challenge the late introduction of the material into evidence, only the absence of an opportunity for verification.
24. What has become of the originals is not apparent from the decision, from the file or from the submissions. It may be that they were returned to the appellants, or that they are in the hands of the respondent. Whether further enquiries will have to be made on the basis of originals or only of photocopies, I cannot say. In any event, even if only photocopies are available to the ECO, that should be sufficient for the further enquiries to be carried out.
25. These were documents of manifest importance, the provenance of which was already in issue, and to which additions bore to have been made. There was obvious unfairness in not enabling the other side to have a fair period during which to carry out verification.
26. The proceedings have already been quite protracted, but I am fortified in this decision by the indications that no further lengthy delay need result.
27. The First-tier Tribunal materially erred by refusing an adjournment which was obviously required on grounds of procedural fairness. Its decision is set aside.
28. The case will be re-listed in the First-tier Tribunal at the first date available, not less than four weeks from the date this decision is issued to the parties.
29. If the verification procedure to be carried out by the ECO discloses that the documentation as stamped, and in particular the death certificate of the mother of the appellants, is genuine and reliable, then it is to be anticipated that entry clearance will be issued to the three appellants without further delay (unless some entirely novel and presently unanticipated feature emerges).
30. If the verification procedure leads to the ECO taking the position that the death certificate is not a reliable document, then the case will have to proceed by way of an entirely fresh hearing in the First-tier Tribunal.
31. No anonymity order has been requested or made.

15 August 2016
Upper Tribunal Judge Macleman