Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal Appeal Numbers: VA/01346/2015
(Immigration and Asylum Chamber) VA/01348/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 22 December 2016
On 23 January 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

mustaf gaxha
antoneta gaxha
(no anonymity order made)
Appellants

and

the entry clearance officer
warsaw
Respondent

Representation:

For the Appellants: Mr B Hawkin, Counsel instructed by Nova Legal Services
For the Respondent: Mr S Walker, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants appeal with permission against the decision of the First-tier Tribunal (at the Taylor House hearing centre) in June 2016, dismissing their appeals against the respondent's decision to refuse them a family visit visa, on the basis that the son whom they were seeking to visit had no leave to remain in the United Kingdom and was here unlawfully, and further, that they had failed to disclose an earlier refusal on 28 January 2014, thereby engaging paragraphs 320(7A) and (7B) of the Rules. The appellants' son has since been given 5 years' leave to remain, in October 2016, as a spouse.
2. The First-tier Tribunal misdirected itself at [2]-[6] of the decision, having regard to the guidance given in particular at paragraph 57 in the decision of this Tribunal in SM and Qadir v Secretary of State for the Home Department (ETS: evidence: burden of proof) [2016] UKUT 00229 (IAC) because the judge directed himself that the burden of proof is on the appellant to establish all material facts and issues.
3. In SM and Qadir, the President of this Tribunal, Mr Justice McCloskey, said this concerning the standard and burden of proof:
"56. The legal principles engaged are set forth below. While we are content to proceed on this basis, we observe that there may be scope for further argument on the correct approach in law in some future case. We thus observe on account of two factors in particular. First, the Secretary of State, in all of these cases, is making the positive case that the student concerned dishonestly obtained the English language qualification by the use of a proxy test taker. Second, the Secretary of State seeks to make good this allegation to the requisite standard by adducing in evidence, in addition to the generic evidence noted above, a flimsy spreadsheet emanating from ETS which, in a single line, contains, in substance, only the name of the student concerned and the categorisation of either "questionable" or "invalid".
57. Both the applicable principles and the jurisprudence were reviewed by this Tribunal in its recent decision in Muhandiramge (Section S-LTR.1.7) [2015] UKUT 675 (IAC), at [9] - [11]. ?In this context, we highlight what was stated at [11] of Shen:
" At the end of the day the SSHD bears the burden of proof. This is a proposition which is uncontroversial and has been confirmed on many occasions."
We record here the submission of Mr Biggs on behalf of the second Appellant, with which we agree, that, doctrinally, a legal burden of proof does not "shift".
58. It is well established that proof of dishonesty on the part of the immigrant concerned is required in order to establish either " false representations" or " false documents" under paragraph 321A of the Rules: see AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773, at [44] and [51] especially. Following the consumption of large quantities of judicial ink, the legal rule which has emerged with unmistakable clarity is that in civil proceedings there is but one standard of proof, namely proof on the balance of probabilities. One of the clearest expositions of this rule is found in the judgment of Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468, at [62]:
"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."
?In short, as emphasised by Lord Carswell in Re D [2008] UKHL 33, at [28], the fundamental judicial task is to decide whether, having regard to the context, the evidence adduced is of sufficient cogency to warrant the conclusion that the burden of proof has been discharged to the civil standard."
4. The First-tier Tribunal Judge did not direct his mind to the question whether the respondent had established that the appellants' failure to disclose the January 2014 refusal was dishonest, because he considered that the burden of proof of honesty lay solely on the appellants. That was an error of law, and such error is plainly material.
5. As the appeal has been approached on an incorrect legal basis there is no alternative but to set aside the decision of the First-tier Tribunal. The decision in this appeal will be re-made in the First-tier Tribunal.
Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision.
The decision in this appeal will be remade in the First-tier Tribunal on a date to be fixed.

Signed: Judith A J C Gleeson Date: 20 January 2017
Upper Tribunal Judge Gleeson