Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/11519/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 November 2016
On 9 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

ENTRY CLEARANCE OFFICER - New Delhi
Appellant
and

FATEMA BULBUL
Respondent

Representation:
For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr A Miah (counsel) instructed by Sony Sadaf Haroon, solicitors

DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Ripley, promulgated on 24 May 2016 which allowed the Appellant's appeal.
Background
3. The Appellant was born on 19 October 1996 and is a national of Bangladesh.
4. On 20 July 2014 the Appellant applied for a certificate of entitlement as the daughter of Ahmed Amirul Haque, a British national. On 14 August 2014, an entry clearance officer refused the Appellant's application.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Ripley ("the Judge") allowed the appeal against the Respondent's decision.
6. Grounds of appeal were lodged and on 28 September 2016 Judge Lambert gave permission to appeal stating, inter alia
"2. The refusal was on the basis of provision of a false birth certificate. The Judge accepted at paragraph 23 that this certificate (A) was not genuine, but nevertheless went on to find that the appellant's date of birth was corroborated by a second birth certificate (B). There is an arguable inconsistency or lack of adequate reasoning in this respect and at paragraphs 25-27 of the decision. The grounds further point to inconclusive DNA test results in support of the contention that the Judge's conclusions were against the weight of evidence."
The Hearing
7.(a) Mr Jarvis for the appellant took me to [2] of the decision where the Judge narrates that two birth certificates have been produced for the appellant (the Judge identifies them as "certificate A" & "certificate B"). He told me that a document verification report was produced and is discussed by the Judge at [3] of the decision, He then took me to [23] and [24] of the decision. At [23] the Judge finds that certificate A is not genuine, but at [24] the Judge places weight on certificate B because the Judge finds it is corroborated by other evidence, even though the sponsor cannot explain why the appellant's birth was not registered until 2008.
(b) Mr Jarvis argued that to find that certificate B is reliable is illogical, because the evidence which the Judge found to be corroborative of certificate B is the same evidence which is plead in support of certificate A. He told me that the appellant's date of birth is one of the central issues in this case. As certificate A has been rejected there is no reliable support for certificate B.
(c) Mr Jarvis told me that the Judge's error amounts to a material error of law and urged me to allow the appeal and set the decision aside.
8.(a) Mr Miah, counsel for the appellant, opposed the appeal. He told me that the respondent's argument cannot succeed because of what is set out at [3] and [4] of the decision. There, he told me, the Judge finds that certificate A could not be verified because it could not be found in the records, but that certificate B is certified by the custodians of the records, who had been unable to find certificate A. He told me that the findings at [3] and [4] form the foundation for the finding at [24] that certificate B can be relied on.
(b) Mr Miah told me that the Judge took account of other evidence besides the documentary evidence discussed between [25] and [28]. He told me that the conclusion reached by the Judge was well within the range of reasonable conclusions available to the Judge. He told me that the decision does not contain errors material or otherwise. He urged me to dismiss the appeal and allow the Judge's decision to stand.
Analysis
9. At [2] of the decision, the Judge sets out the documentary evidence submitted in support of the appellant's application. At [3] the Judge identifies the challenge to birth certificate A. Between [14] and [17] the Judge correctly directs himself in law. It is at [20] the Judge starts to make his findings of fact.
10. At [23] the Judge finds that birth certificate A is not genuine. At [24] the Judge places reliance on birth certificate B and gives his reasons for doing so. Identifying the appellant's date of birth is an important part of the Judge's fact-finding exercise. The was no direct evidence to suggest that certificate B is not genuine. There was a document verification report in relation to certificate A, but not certificate B.
11. In RP (proof of forgery) Nigeria [2006] UKAIT 00086 the Tribunal said that an allegation of forgery needs to be proved by evidence and by the person making it. A bare allegation of forgery, or an assertion by an Entry Clearance Officer that he believed the document to be forged can in these circumstances carry no weight. The Tribunal treats a document as forged only on the basis of clear evidence before it.
12. It is because there was a document verification report challenging the authenticity of certificate A that the Judge found that certificate A is not genuine.
13. The Judge did not unquestioningly accept certificate B. Instead, he considered the documentary evidence which points to the appellant's date of birth. He found that the was consistency in the documentary evidence and that certificate B had been certified by the custodians of the records of birth. Applying the correct standard of proof, the Judge found that the appellant proves her date of birth and that certificate B can be relied on. Those findings which were within the range of findings available to the Judge.
14. The second crucial part of this case is proof of paternity. By virtue of The British Nationality (Proof of Paternity) Regulations 2006 proof of paternity could be established for nationality purposes by a birth certificate on which the person is named as the father of the child where the birth certificate was issued within one year of the date of the child's birth. Alternatively the SSHD had to be satisfied and might have regard to DNA test reports or Court Orders. However, the British Nationality (Proof of Paternity) (Amendment) Regulations 2015 SI 2015/1615) which came into force on 10 September 2015 state that a birth certificate issued within 12 months of birth will no longer be sufficient in itself to establish paternity for the purposes of British Nationality. Such a birth certificate would instead only act as evidence among a variety of other considerations, such as DNA evidence, which could assist to identify a child's natural father.
15. The Judge found the DNA evidence in this case to be inconclusive. The DNA evidence was however sufficient to establish that the appellant's mother is the British citizen sponsor's wife. Between [25] and [29] the Judge finds that the appellant was born after the date of marriage and that the appellant's date of birth is consistent with the British national sponsors known history of visits to his wife in Bangladesh. At [27] the Judge finds that the documentary evidence (including marriage certificates, school records and references from members of the local authority) all point towards the sponsor being the father of the appellant.
16. It was the First-tier Judge to consider what weight to place on the various strands of evidence before him. The Judge carefully sets out the evidence that he rejects & the evidence that he accepts. He provides reasons for rejecting some sources of evidence and accepting other sources of evidence. The Judge's decision to place weight on the documentary evidence and on birth certificate B is a decision which was well within the range of reasonable decision is available to the Judge. The Judge gives adequate explanation for reaching his conclusions in the reasoning given between [24] and [28] of the decision.
17. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.
18. The decision that the Judge reached may not be one of the respondent likes, but there is no error in the Judge's fact-finding exercise. The Judge takes correct guidance in law, before reaching conclusions which are reasonably open to the Judge. The Judge's decision does not, therefore, contain a material error of law
CONCLUSION
No errors of law have been established. The Judge's decision promulgated on 24 May 2016 stands.

DECISION
The appeal is dismissed.

Signed Date 9 November 2016

Deputy Upper Tribunal Judge Doyle