Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13855/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th February 2016
On 7th April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON

Between

mr ali raza mir
(aNONYMITY DIRECTIon NOT MADE)

Appellant
and

ENTRY CLEARANCE OFFICER -Islamabad
Respondent

Representation:

For the Appellant: None but Lee Valley Solicitors on File
For the Respondent: Ms S Sreeraman, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals with permission against the decision of the First-tier Tribunal Judge Lamb dismissing the appellant's appeal against the Entry Clearance Officer's refusal of his application under Appendix FM. That application was refused on 9th October 2014 under paragraph EC-P.1.1(c) whereby an applicant must not fall for refusal under any of the grounds in Section S-EC: suitability - entry clearance.
2. The appellant was born on 21st October 1988 and is a national of Pakistan and applied for entry clearance as a partner under Appendix FM of the Immigration Rules.
3. In the notice of immigration decision issued by the Entry Clearance Officer the Entry Clearance Officer stated that the appellant signed a declaration on his Visa Application Form on 30th January 2014 to say that the information contained within it was correct and the Entry Clearance Officer stated the following;
'In answer to question 27 "have you made an application to the Home Office to remain in the UK in the last ten years" you said "no".
In answer to question 30 "have you been deported, removed or otherwise required to leave any country including the UK in the last ten years" you said no.
In answer to question 31 have you ever voluntarily elected to depart the UK you said no.
I am satisfied that statements made above were false. This is because the Home Office records show that you were previously in the UK with valid leave as a student and on 11th June 2012 your existing leave was curtailed. Our records also show that on 8th January 2013 you applied for leave to remain in the UK under the domestic violence concession. As a result of your visa curtailment you subsequently left the UK on 25th February 2014.
In the light of the above I am satisfied that you have failed to disclose material facts in relation to his application and his application was refused further to EC-P.1.1(c) of Appendix FM of the Immigration Rules (S-EC.2.2(a))'.
4. The matter came before the First-tier Tribunal Judge who found that at paragraph 18 that although reference was made by the Entry Clearance Officer to the curtailment of the appellant's leave on 11th June 2012, no evidence in support of that statement was presented to the Tribunal and it was denied by the appellant. The Judge found that he would at least have expected to have seen a letter to the appellant stating that curtailment. None was forthcoming.
5. Judge Lamb also found at [19] of his decision that the application for entry clearance stated, in answer to question 23, that the visa was issued on 28th April 2011 and expired on 28th February 2013, the refusal notice by the Entry Clearance Officer states 'as a result of your visa curtailment you subsequently left the UK on 25th February 2014'. The Judge stated
"That date is clearly an error. However the Entry Clearance Manager repeated it in the following sentence."
6. The Judge found that considering the importance attached by the respondent to the date, the lack of attention to detail caused him serious doubt about the reliability of the remainder of the decision.
7. The Judge at [20] recorded that there was a letter showing that the appellant and his wife consulted solicitors in Bristol about the legal basis upon which he might remain in the UK and the solicitors submitted that there was no application made. The Judge found
"I find that what probably happened was the solicitors made an enquiry by telephone to ascertain whether such leave and the concession might be forthcoming and that was why the letter was worded as it was, expressly stating it as a finding that the appellant was not eligible and that the letter was not a decision. This also explains why there was no written application on the respondent's file."
8. The Judge found that what was a known fact was that the appellant and his wife married in Pakistan on 27th February 2013 and lived together until 17th May 2013 when she returned to the United Kingdom to resume her employment.
9. As a result the Judge found that the answer given by the appellant to question 25 in his application form was in fact truthful "because he had made no application. All that he had done was to make an enquiry through his solicitors" [22]. The judge found that "his failure to mention that was not a failure to answer accurately any question in the application nor was it a failure to disclose material facts".
10. The Judge then stated the following:
"23. On the basis of the evidence which I have set out and discussed above, I find that the Appellant left the United Kingdom on 25 February 2013, voluntarily, knowing that his visa was due to expire on 28 February and intending to marry in Pakistan on the 27th. I do not see how that could be anything other than a voluntary election to depart the United Kingdom, and therefore the accurate answer to question 29 in his entry clearance application form was yes, instead of no. In his witness statement, the Appellant states that he was never asked by the respondent to leave the United Kingdom. His wife in her witness statement states that he did not receive any notice from the respondent to leave the United Kingdom, but rather he returned to Pakistan as his visa was expiring. Those statements address the wording of question 28, referred to by the clearance officer as question 30, but not the wording of question 29, referred to as question 31."
11. As such the Judge stated that when referring to the exercise of the discretion of the Entry Clearance Officer that the respondent had justification on the basis of the response by the appellant to the query about voluntary election to depart.
12. Grounds for permission to appeal were lodged on the basis that the respondent had not discharged the burden of proof by establishing that there was an element of dishonesty on the appellant's part when responding to the application question. Secondly it was submitted that the respondent had asserted that the appellant's leave was curtailed but in fact it was the appellant's case that he had not received any letter from the respondent and further to Syed (Curtailment of Leave Notice) India [2013] UKUT 114 (IAC) "at paragraph 28:
"The Secretary of State has to be able to prove that notice of the decision varying leave to remain under Section 3(3)(a) of the Immigration Act 1971 where there is no right of appeal was communicated to the person concerned for it to be effective. Where there is no 'immigration decision' the Immigration (Notices) Regulations 2003 do not apply".
In effect the Secretary of State could not rely on deemed postal service.
13. As in the case of Syed it was submitted that the respondent could not prove that notice of a decision varying leave to remain under Section 3(3)(a) of the Immigration Act 1971, was communicated to the appellant effectively.
14. Permission to appeal was granted in somewhat obscure terms but to the effect that in the circumstances it was arguable that the totality of information and documentation potentially available should have been assessed before the hearing proceeded.
15. A Rule 24 Notice was submitted stating that at paragraph 23 the Judge found that the appellant's answer to question 29 in the application "have you ever voluntarily elected to depart the UK" should have been 'yes' and not 'no'. It was submitted that a failure to disclose a material fact did not require dishonesty and the appellant's reliance on AA (Nigeria) was misplaced. S-EC2.2 states "false information in relation to the application or failure to disclose material facts". There was nothing in the express wording of S-EC2.2 that requires dishonest failure to disclose.
16. At the hearing there was no representation for the appellant on the basis that it appeared the sponsor had not been able to place the solicitors in funds and an adjournment was requested.
17. I was not persuaded that the matter could not be dealt with fairly on the day. There was no guarantee that the appellant's representative would be in funds at any later date.
18. Ms Sreeraman conceded that there was an error of law on the basis that voluntary election to depart in the context of the application referred to when the appellant ceases to have leave. As the Judge stated at paragraph 18 there was no letter regarding the curtailment of the appellant's leave and no evidence or proof further to Syed that the curtailment notice had been served on the appellant. The reference to the voluntary election to depart in the application form, is in the context of questions as to whether the appellant has been refused entry, deported, removed or otherwise required to leave a country was confused by the Judge. Indeed at the top and at question 23 the appellant clearly states that he left the country on 26 February 2013 and therefore he did declare that he left the country.
19. I conclude that the interpretation of the phrase "voluntary elected to depart the UK" is that it should be interpreted in line with the guidance issued by the Secretary of State which refers to voluntary departure in terms of presence in the UK without leave. As stated it had not been accepted that the curtailment notice had been effectively served on the appellant. The First-tier Tribunal Judge's misconstrued the appellant's responses in his application form. I find therefore that there has been an error of law which may be material. I set the First-tier Tribunal Judge's decision aside but preserve the findings of fact at [18], [19] [20] and [22].
20. The Entry Clearance Officer's decision is unsatisfactory. The dates referred to in that decision regarding the appellant's departure are contradictory and inconsistent and suggest that perhaps this application was confused with another. The Entry Clearance Officer referred to the date of 25th February 2014 whilst the appellant stated that the date of departure was 26th February 2013. The references to the questions were not consistent either. The Entry Clearance Officer referred to question 31 "have you ever voluntarily elected to depart the UK". That question was in fact question 29 of the appellant's visa application.
21. The Entry Clearance Officer has not considered the substantive merits of this matter and, in the light of these findings, has proceeded on erroneous grounds and without, it would appear, any firm evidence that the appellant's leave had indeed been effectively curtailed. Ms Sreeraman agreed having taken instructions from a senior case working officer that the matter should be remitted back to the Entry Clearance Officer for a lawful decision.
Order
The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007) and remake the decision under section 12(2) (b) (ii) of the TCE 2007.
I allow the appeal for the reasons given above to the extent that matter awaits a lawful decision by the Entry Clearance Officer.
No anonymity direction is made.

Deputy Upper Tribunal Judge Rimington Date 24th March 2016

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award because the appeal was only allowed to a limited extent.

Signed Date 24th March 2016

Deputy Upper Tribunal Judge Rimington