Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13756/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Promulgated
On 23rd May 2013
On 3rd June 2013

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

NOSHEEN KANWAL
Appellant

and

Entry Clearance Officer

Respondent

Representation:

For the Appellant: No appearance
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Turnock made following a hearing at Bradford on 22nd January 2013.
Background
2. The Appellant is a citizen of Pakistan born on 4th March 1979. She applied for entry clearance to come to the UK as the wife of Iftikar Ali who had leave to remain under the PBS Tier 1 (Post-Study Work) category. She was refused on 19th June 2012 under paragraph 320(7B) because, in a previous application for entry clearance in 2007, she had submitted a false United Bank statement with her application.
3. The judge noted that the Appellant did not appeal against that decision. She said in her grounds of appeal and submissions that she was saddened at the refusal and had no energy left and was discouraged. She believed that the United Bank statement and all of the other supporting documents which were handed over to the consultant who dealt with her application were genuine but it seemed that the consultant may have altered them in order to influence the decision. She was entirely unaware of that. The judge said that it was not clear why a consultant would falsify documentation submitted in support of a student application if there was genuine documentation available. He did not find the Appellant's explanation credible and he concluded that the refusal of the application was correctly made under the provisions of paragraph 327B.
4. The judge also dismissed the appeal under the ECHR finding that the Sponsor is awaiting a decision on his application to remain in the UK as an entrepreneur but in the meantime the couple could stay in contact and visit each other.
The Grounds of Application
5. The Appellant sought permission to appeal on the grounds that the judge did not take into account the fact that there was no document verification report produced detailing how the falsity of the document had been established. She confirmed that all of the documents submitted were genuine. The most recent copy from the relevant bank provided to the court confirmed that it was so. She said that she never accepted that false documents were submitted by her or by the consultants. Original documents had been produced which confirmed the financial position of the Sponsor at the time of her first application.
6. Secondly, the judge was wrong in his findings in relation to Article 8. The Appellant has been married to the Sponsor for seven years and her first priority is her husband and she wants to have children. The couple have fertility problems and they need to live together to start their family.
7. Finally her husband is a qualified financial analyst, self-employed in the UK and the dismissal of the appeal is an unlawful interference with her family life.
8. Permission to appeal ws granted by Judge Lewis on 12th March 2013. Judge Lewis said that the grounds did not appear to disclose any arguable error of law with respect to Article 8 but it was arguable as to whether the findings of the judge were reasonably open to him on the evidence in respect of the decision under the Rules.
The Hearing
9. The Sponsor did not appear. I am satisfied that he was correctly served with notice at his last known address. The Appellant was also served at her home in Pakistan in compliance with the requirements of the Procedure Rules.
10. Mr Diwnycz submitted that the judge’s decision was properly made.
Findings and Conclusions
11. Under paragraph 320(7B), where an applicant has previously breached the UK's Immigration Rules by, inter alia, using deception in an application for entry clearance within the last ten years, a subsequent application for entry clearance is to be refused.
12. The problem for the Appellant is that she did not challenge the original refusal, made in 2007, and is therefore not in a position to argue now that the decision was wrongly made.
13. In any event the Appellant appears, in her Grounds of Appeal to the judge, to base her case upon ignorance of the false documentation, rather than arguing that it was genuine. She acknowledges, by stating,
“It seems that it was the consultant that may have altered them in order to influence the Entry Clearance Officer’s decision”
that false documentation was indeed produced.
14. The judge considered the Appellant’s explanation and concluded that it was not credible that the consultant would falsify documentation without any reference to her, and, if he had, the Appellant would have challenged the consultant or made some representations to the authorities who refused the application, which she did not do. It was plainly open to the judge to reject the Appellant's explanation as not credible and to conclude that the refusal under paragraph 320(7B) was properly made).
15. So far as Article 8 is concerned, the judge correctly applied the five stage test, properly directed himself as to the law and reached a decision open to him that the refusal of entry clearance was proportionate. It is not at all clear what the Sponsor's present position is. The evidence before the judge was that he had made an application to seek to remain as a Tier 1 entrepreneur but Mr Diwnycz was not able to shed any light on what had happened so far as that application was concerned. In the meantime, as the judge said, the couple can continue to visit and to stay in contact with each other and it will be open to the Appellant to make an application in the future. The judge attached significant weight to the Secretary of State's obligation to maintain a proper immigration control, and that includes a proper sanction against persons who commit deception. That was a matter for him.

Decision
16. The judge did not err in law. His decision stands. The Appellant's appeal against the decision to refuse her entry clearance is dismissed.

Signed Date

Upper Tribunal Judge Taylor