Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: oa/15673/2014
oa/15675/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th September 2016
On 17th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Tasneem [K] (First appellant)
[M A] (a minor) (second appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Chaudhery, Legal Representative
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are citizens of Pakistan. The first Appellant was born on 9th July 1968. The second Appellant was born on [ ] and is her son. The first Appellant had applied for entry clearance as a partner under Appendix FM of the Immigration Rules. Her application was considered under paragraph EC-P.1.1 of Appendix FM. Her application was refused by Notice of Refusal dated 13th November 2014. The Second Appellant had applied for entry clearance as a child under Appendix FM. His Notice of Refusal was also dated 13th November 2014. It is acknowledged by the Secretary of State and by the Appellant's legal representative that the appeals of the second Appellant rise and fall on those of the first Appellant. For the purpose of continuity throughout the appeal process unless otherwise specifically required all references hereinafter are made to the first Appellant.
2. Grounds of Appeal were lodged to the First-tier Tribunal and the appeal came before Judge of the First-tier Tribunal Abebrese sitting at Taylor House on 5th February 2016. By a decision and reasons dated 1st March 2016 the Appellants' appeals were dismissed under the Rules and under Article 8 of the European Convention of Human Rights.
3. Grounds of Appeal were lodged to the Upper Tribunal on 1st March 2016. On 3rd August 2016 Judge of the First-tier Tribunal Mark Davies granted permission to appeal. Judge Davies considered that it was arguable that the judge had not applied the correct standard and burden of proof to the evidence that was before him. He noted that it was clear that where the Respondent alleged a false document had been utilised by the Appellants that the burden of proving that that is the case was upon the Respondent on the balance of probability and that it was possible that the judge had not applied that burden and standard to the evidence.
4. On 24th August 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Secretary of State noted that the documents in question were clearly reported by their purported originators to be invalid. The response noted there was a document verification report produced by the Entry Clearance Officer to that effect and that the initial burden on the Entry Clearance Officer had clearly been discharged. It was contended therefore that the burden hence shifted on the Appellants to show if there was an innocent explanation and nothing further of any substance was produced by the Appellants to discharge the burden which had shifted upon them. The Rule 24 response pointed out that there was only one pertinent standard of proof in cases of similar nature and that was on the balance of probabilities.
5. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed solicitor Mr Chaudhery. The Secretary of State appears by her Home Office Presenting Officer Ms Ahmad.
Submissions/Discussions
6. Mr Chaudhery relies on the Grounds of Appeal submitting that the Immigration Judge wrongly shifted the burden of proof onto the Appellant rather than the Respondent and that whilst the Appellant tried her best to establish her case by providing further evidence the Respondent continued to rely on the same verification report the content of which it was contended was nothing but hearsay evidence. It was submitted that the Respondent could not provide any further independent report to establish that the document submitted was false and that the judge had adopted a wrong legal test and therefore the determination was erroneous.
7. In response Ms Ahmad takes me to the decision at paragraph 5 which states
"The Appellant brings this appeal and therefore bears the burden of proof. The Appellant must satisfy this burden on a balance of probabilities."
She submits this is a generic paragraph and is not a description regarding the analysis of the document verification report. She submits that that is addressed at paragraph 12 of the decision where the judge has fully examined the evidence and shown that the judge was fully aware as to where the burden of proof lies.
8. Mr Chaudhery responds stating that if the analysis in the Rule 24 response is correct then the question is "was the judge satisfied that the burden had been discharged by the Respondent" and queries whether the document verification report is enough. He submits that the DVR is self-contradictory and should not have been considered and that the judge should have drawn a different inference.
9. In brief response Ms Ahmad points out that the judge was entitled to make the findings that he did, that he had considered the document verification report and that the decision should stand.
The Law
10. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
11. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
12. I start by reminding myself that I am not rehearing the issue I am only determining whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The important aspect relates to the assessment of the document verification report and as said by Judge Abebrese in the First-tier Tribunal it goes to the heart of the issue in the appeal. It is clear that the judge has given very full and thorough consideration of the verification report and concluded that the document provided was incomplete and invalid and that this was based upon the current practice in relation to the issuing of such documents by the authorities. The judge has then gone on to consider the arguments that were put by the Appellant's legal representative and made findings on balance that the verification report should stand as it shows the document was incomplete and invalid.
13. These were findings that the judge was entitled to make. The submissions made by Mr Chaudhery, however valiant they may be, merely go to disagreement with the assessment and conclusions reached by the judge. As long as the judge followed the correct process, and I conclude that he has done, the decision cannot contain a material error of law.
14. I am not specifically addressed by either Ms Ahmad or Mr Chaudhery with regard to the appeal pursuant to Article 8 but for the sake of completeness I do note paragraph 11 of the Grounds of Appeal seek to address this matter. I am however satisfied that the judge has considered the proper process under Article 8, the approach set down in Razgar and thereafter gone on to consider the application of Section 117B of the Immigration Act 2014. Albeit that the findings are brief they are sustainable and do not disclose a material error of law.
15. Overall I do acknowledge the findings are restricted to two paragraphs but they do both address the main issues that were extant before the First-tier Tribunal. The judge has given reasons for his decision as set out above and they are sustainable. There is nothing to show that the judge has misinterpreted the direct standard and burden of proof and to rely on paragraph 5, which I am quite satisfied as Ms Ahmad has submitted is a generic paragraph, does not disclose any material error of law in the First-tier Judge's decision. In such circumstances the decision overall discloses no material error of law. The judge has considered the correct burden of proof. The submissions made by Mr Chaudhery amount to no more than disagreement and the decision of the First-tier Tribunal Judge is maintained and the Appellant's appeal is dismissed.
Notice of Decision

The decision of the First-tier Tribunal Judge discloses no material error of law and the appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date 17th October 2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 17th October 2016

Deputy Upper Tribunal Judge D N Harris