Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04991/2013

THE IMMIGRATION ACTS

Heard at Laganside Courts Centre, Belfast
Determination Promulgated
On 15 April 2014
On 17 April 2014

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Before

The President, The Hon. Mr Justice McCloskey

Between

ENTRY CLEARANCE OFFICER, NAIROBI
Appellant

and

FARXAN XIRSI RAFLE
Respondent

Representation:

Appellant: Mrs M O'Brien, Senior Home Office Presenting Officer
Respondent: Mr Brennan, Solicitor

DETERMINATION AND REASONS

1. The Respondent is a national of Somalia, presently residing in Ethiopia, aged 32 years. His appeal to the Upper Tribunal originates in a decision made by the Entry Clearance Officer of Nairobi (hereinafter the "ECO"), the Appellant herein, dated 14 January 2014, refusing the Respondent's application to enter the United Kingdom under the family reunification provisions of the Immigration Rules. The Respondent's ensuing appeal to the First-Tier Tribunal (the "FtT") was allowed. The ECO appeals, with permission, to this Tribunal.

2. The ECO's refusal decision was based on an assessment that a document purporting to be a certificate recording the marriage of the Respondent and the sponsor, his asserted spouse, was a false document. While acknowledging that there was certain other evidence of the marriage, including the claims made by the sponsor in her asylum interviews following her arrival in the United Kingdom, the ECO pronounced himself not satisfied that they are man and wife. Having referred to paragraph 320(7A) of the Immigration Rules, the ECO stated:

"I am satisfied, to a higher balance of probabilities, that false documents in the form of a marriage certificate were produced in your visa application. I therefore refuse your application."

[My emphasis.]

The further aspect of the impugned decision, which was that refusal would not constitute any infringement of Article 8 ECHR, followed inexorably from this finding.

3. In paragraph 13 of his determination, the FtT Judge stated:

"The onus of proving that the document in the form of the marriage certificate provided is not genuine is on the Respondent. The Respondent relied upon a report from an official in the High Commission ?.."

The Judge then rehearsed the terms of this report. He continued:

"There is an abundance of evidence before me that the Appellant and the sponsor are married."

In this appeal, there is no challenge to the lengthy paragraph, wherein the Judge recites and summarises this evidence, which follows. Continuing, the Judge stated:

"I have no reason to doubt that when the Appellant sought to obtain a marriage certificate from the Imam the document provided was not in a format which the Respondent regarded as genuine."

The Judge then observed, uncontroversially, that having regard to the ECO's assessment of law and order in Somalia during the past two decades it is unclear whether any type of document (and, if so, what) would be accepted as a genuine marriage certificate. Thus, the Judge reasoned, the ECO's conclusion that the document in question was false "measured against a standard which does not exist". Next, the Judge stated that the onus was on the ECO to establish that the document was false, under paragraph 320(7A) of the Rules. It is common case that the Judge formulated this proposition correctly. He continued:

"I find that the extensive evidence provided by the Appellant and the sponsor is sufficient to establish that the Appellant and the sponsor were married, as claimed, in 2009. I find that the Respondent has not established to the high standard of proof required that the document is, as claimed, not genuine."

[Emphasis added.]

I have highlighted the latter sentence as it is central to the determination of this appeal.

4. On behalf of the ECO, it was argued that the passage in question betrays a misdirection in law by the Judge on the issue of standard of proof. It is agreed between the parties that, the burden of proof resting on the ECO as regards this issue, the standard of proof to be applied was the civil one. The leading authority on the civil standard of proof is Re B (Children) [2008] UKHL 35. Lord Hoffmann stated, in [15]:

"There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities."

This echoed the oft cited statement of Lord Nicholls in Re H and Others (Minors) [1996] AC 563, at page 586:

"The balance of probabilities standard means that a court is satisfied an event occurred if the Court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the Court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the Court concludes that the allegation is established on the balance of probability. Fraud is less likely than negligence ??

Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation ?..

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred."

[My emphasis]

As ever, two golden rules apply. The first is that these passages repay careful reading. The second is that they must be considered as a whole.

5. Of equal importance is the obligation to consider the decision of the FtT in full, rather than in isolated fragments. Its full context includes the statement in the ECO's refusal decision which I have highlighted above. This used the language "a higher balance of probabilities". I consider that the Judge had these words in mind when he adverted to "the high standard of proof". The Judge made no mention of the criminal standard of proof. Nor did he rehearse the hallowed words beyond reasonable doubt. Considered as a whole, I am satisfied that the Judge did not fall into the error suggested. Properly construed, the passage in question was simply acknowledging the doctrinally correct truism tha, where the serious allegation of fabricating a document for the purpose of securing immigration entry is made - to wit, engaging in deceit, perpetrating a fraud - the supporting evidence must, within the flexible contours of the balance of probabilities standard, be sufficiently persuasive. Context is everything. The allegation in question or the fact in dispute must always be considered in its full context. Stated succinctly, the civil standard of the balance of probabilities will be satisfied more easily in some contexts than in others. Thus it has been said from time immemorial that fraud is never easily proved. The rationale of this is quintessentially simple: the more serious the allegation the more difficult it will be for the party on whom the onus of proof lies to discharge such onus to the requisite standard.

6. It follows that the ECO's appeal must be dismissed.

7. I record, for completeness, that an application under Rule 15(2A) for the reception of further evidence has been lodged on behalf of the Respondent. In the circumstances, it has been neither necessary nor appropriate to rule thereon.

DECISION

8. The appeal is dismissed. The effect of this is to reaffirm the decision of the FtT that the ECO's decision is not in accordance with the law and, thereby, to require the ECO to make a fresh decision which accords with the law. Given that the impugned decision is now of some 16 months vintage, it would obviously be desirable that the fresh decision be made expeditiously.

Signed:

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 14 April 2014