Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/13100/2014
OA/13101/2014
OA/13102/2014

THE IMMIGRATION ACTS

Heard at Belfast
Decision & Reasons Promulgated
On 8 November 2016
On 15 December 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL
Between

Amrita Niure
[A N1]
[A N2]
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Miss B Hassan, Solicitor
For the Respondent: Mr S Whitwell, Presenting Officer

DECISION AND REASONS
1. The appellants appeal with permission against the decision of First-tier Tribunal Judge Ian Howard, promulgated on 29 June 2015, dismissing their appeals against the decisions of the respondent made on 25 September 2014 to refuse to grant them entry clearance as the dependent relatives (wife and children) of a person with leave to remain in the United Kingdom as a Tier 2 (General) migrant
2. The appellants maintain that they meet all the requirements to be granted leave to enter as Tier 2 (General) Migrant dependent relative. The respondent refused the applications on the basis that he was not satisfied that the appellants were respectively the husband and daughter of Ram Prasad Niure ("the sponsor") given that the marriage certificate was issued more than ten years after the marriage date (18 April 2003) and the birth certificates for the children were some five and three years after their birth.
3. The respondent noted that certificates of marriage, birth and relationships could be easily and unofficially obtained in Nepal, that the appellants had not provided any family photographs to corroborate the relationship and no explanation has been provided as to why there had been no entry clearance application although the sponsor had been working in the United Kingdom since 2010. It was noted also that there was no evidence of communication or interaction between the appellant and the sponsor. The application was therefore refused pursuant to paragraph 319H(b)(i), 319H(d) and 319H(e) of the Immigration Rules.
4. The appellants appealed against that decision but did not request an oral hearing. On 12 February 2015 the First-tier Tribunal notified the parties that it was aware that they wished the appeal to be dealt with on the papers and that any further written evidence and submissions were to be submitted to the Tribunal and the respondent by 10 April 2015.
5. The appellants provided a bundle of documents including witness statements from the principal appellant and sponsor; documentation from Tara Village Development Committee and other supporting documents as well as family photographs.
6. In his decision the judge found:-
(i) that it was not possible to be satisfied that the photographs of the sponsor and appellants on the applications were the same as those appeared in the family photographs;
(ii) that although a number of additional documents had been submitted, including those purporting to be from the Office of Model Village Development and the local registrar, "the same criticism can be levelled at these documents as they are not contemporaneous with the events of which they speak";
(iii) that he was not satisfied that he could accept the "relationship certificate", created on 22 April 2014 as its purpose was unclear [13] and that he must accept about the prevalence of the forgeries in Nepal, he could not be satisfied that he could accept the document at face value.
7. The appellants sought permission to appeal which was granted on 15 December 2015 by First-tier Tribunal Judge Chambers who stated as follows:-
"2. The grounds seeking submit that a witness statement and a number of documents were submitted but not considered. The grounds challenge the finding that the documents were forged and put forward reasons why they are genuine.
3. The judge refers (paragraph 10) to a bundle of further material submitted by the appellants which leafing through it, includes photographs and documents some of which purported to come from official quarters. It does not appear from a fair reading of the decision that the judge engaged with the 19 items of evidence or a written statement dealing with it.
4. The failure to give reasons constituted an error of law."
The Hearing on 8 November 2016
8. Miss Hassan accepted that the grounds, drafted by the appellants without the proper legal assistance, needed to be refined and that she would be focusing on two errors:-
(i) the failure on the part of the judge to engage with the documentary evidence in particular the witness statements; and
(ii) placing undue weight on the assertion in the refusal letter that fraudulent documents were easily available in Nepal, this not being supported by objective evidence.
9. Miss Hassan accepted that some of the documents included in the bundle had not been served on the respondent either before the decision or subsequently. She accepted also that the appellants had requested a paper hearing, instructing solicitors only after permission to appeal had been granted. She noted that they had not fully understood the implications of not requesting an oral hearing but nonetheless the judge had erred in failing properly to take into account the evidence before him. Miss Hassan submitted that the judge had erred in stating [13] "what I must accept about the prevalence of forgeries in Nepal". This, Miss Hassan submitted, was indicative of an improper approach given that the respondent had adduced no evidence to support the assertion of forgeries being widespread.
10. Mr Whitwell relied on the Rule 24 response submitting that the judge had properly taken into account the documents and had been entitled to reach the conclusions he did, the submission in ground 1 being just a disagreement. Mr Whitwell submitted that there had in this case been no allegation of forgery and that it had been open to the judge to decide what weight to attach to the material put before him.
11. As Miss Hassan accepted, I do not consider that the judge can be faulted for failing to attach weight to photographs given that it was not possible, given the poor quality of the photocopy black and white photographs of the appellants attached to the application forms, to compare them properly with the photographs produced.
12. That said, the judge does not appear to have engaged with the witness statement from the principal appellant which [14] refers to identity cards in respect of the two minor appellants (the children of the first appellant and sponsor), notarised copies of which are attached. Importantly, these documents name both parents and appear to have been issued on 1 April 2014 thus predating the date of decision by several months. Whilst the issue of contemporaneity with respect to documents around date of birth may be relevant, the same cannot be said about the issue of identity cards. Further, as Miss Hassan rightly pointed out, there was no evidence other than a bare assertion by the Entry Clearance Officer that documents of the class impugned are easily available. Further, and in any event, had such evidence been produced it would have been for the judge to evaluate; there is no basis on which he could properly have concluded that he "must accept" what was asserted by the respondent as he fails to explain properly why he was compelled so to do.
13. Whilst I accept that some of the material was not available to the Entry Clearance Officer, and does not appear to have been served on the respondent, nonetheless those were not reasons given by the judge for failing to engage with the material which was relevant.
14. In the circumstances therefore I am satisfied that the judge did err in his assessment of the evidence in failing properly to consider the material before him and also erred in his assessment of the evidence that documents can easily be obtained in Nepal without evidence to that effect adduced by the respondent. I consider that these errors are material in that this led him to the conclusion that the appellants and sponsor were not related as claimed.
15. In the circumstances and given that the judge understandably having reached that conclusion did not go on to consider whether the relationship was subsisting and the other matters with respect to paragraph 319H, I consider that the matter should be remitted to the First-tier Tribunal for a full fact-finding exercise on all relevant issues. It is of course evident that the First-tier Tribunal would greatly be assisted by DNA tests carried out by a properly accredited testing body obtained as a matter of urgency and before the matter comes back to the First-tier Tribunal.

SUMMARY OF CONCLUSIONS

1. The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside.
2. I remit the appeal to the First-tier Tribunal for it to be remade on all issues. For the avoidance of doubt, none of the findings of Judge Howard are preserved

Signed Date: 13 December 2016

Upper Tribunal Judge Rintoul