Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05115/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination & Reasons Promulgated
On 25 April 2017
On 28 April 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

Mrs SANJIDA AKHTER
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Khan, Authorised Representative
(Londinium Solicitors)
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DETERMINATION AND REASONS
Introduction

1. The Appellant appealed with permission granted by Upper Tribunal Judge Kebede on 13 March 2017 against the decision and reasons of First-tier Tribunal Judge Miller who had dismissed the appeal of the Appellant seeking entry clearance as the dependant spouse of a Tier 4 (General) Student Migrant. The decision and reasons was promulgated on 30 August 2016.

2. The Appellant is a national of Bangladesh. Her application was refused because the Entry Clearance Officer had not been satisfied that the Appellant had the qualifying funds. The bank account on which she relied had been doubted. It was considered that she had made false representations and her application had been refused under paragraph 320(7A) of the Immigration Rules. The judge found that the Appellant had failed to show that she had the necessary funds and that paragraph 320(7A) had been properly applied. He dismissed the appeal on that basis.

3. Permission to appeal was granted in the Upper Tribunal because it was considered that the judge had arguably erred by failing to recognise that the burden of proof lay on the Respondent where false documents allegations had been made.

4. Standard directions were made by the tribunal. A rule 24 notice accepting that there was a material error of law was filed by the Respondent, dated 20 March 2017.

Submissions

5. Mr Khan accepted that his appeal succeeded by concession, and asked that it be reheard immediately in the Upper Tribunal.

6. Mr Tarlow produced the Document Verification Report which had not been served previously and asked that the appeal be reheard in the First-tier Tribunal.

Discussion – error of law

7. If Judge Miller’s decision and reasons is read carefully, it can be seen that he was unimpressed with the Appellant’s preparation of her appeal. Judge Miller correctly pointed out that the Appellant had failed to pursue obtaining a copy of the DVR (see [15] and [16] of his decision). Indeed, it may be debateable whether the judge misunderstood the burden of proof issue to the extent which had been asserted, or at all, but in the light of the Secretary of State’s concession no useful purpose would be served by discussing the point further: the Secretary of State accepted that the burden resting on her was not adequately discharged. In the now admitted absence of service of the DVR it is not easy to see how the burden had been discharged: that was the material error of law.

8. Following discussion, the tribunal ruled that the appeal would have to be reheard in the First-tier Tribunal, as the late service of the DVR meant that the Appellant was not in a position to proceed. The Appellant would need an opportunity to obtain further evidence from Bangladesh. It would have been wrong to have excluded the DVR, given that the allegation of fraud had been made long ago and the point was not newly raised. The Appellant should have obtained a without delay and directions should have been requested if necessary. It was not appropriate to make any costs award in the Appellant’s favour in all the circumstances.

DECISION

The appeal is allowed

The decision and reasons is set aside because of material error of law

The appeal must be reheard at Taylor House on the first available date by First-tier Tribunal judge (except Judge Miller)

Signed Dated 25 April 2017

Deputy Upper Tribunal Judge Manuell