Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/01364/2015
VA/01365/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19th January 2017
On 2nd February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

VISA OFFICER - NEW DELHI
Appellant
and

mrs saya begum
miss rubana begum
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondents: Mr Hossain

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of Judge Lucas made following a hearing at Taylor House on 4th August 2016.
2. The claimants are citizens of India. They initially applied, together with the first claimant's son (the second claimant's brother), to come to the UK as visitors on 29th April 2013. They were refused but successfully appealed to the Tribunal on 28th July 2014. The appeals of the first and second claimants were allowed. The judge ruled that their brother had no right of appeal against the decision because he was not a child at the date of application and accordingly not a dependent upon his mother's application.
3. The claimants then were instructed to submit their passports for the visas to be issued.
4. The Entry Clearance Officer refused to issue the visa and wrote as follows:
"You submitted your passport, and that of your daughter, however you also submitted an amended call in notice of your son Mohammed Abul Miha which appeared to have been sent by this office. It was not, therefore, I have reconsidered your application under paragraph 41 ... and refused it in accordance with paragraph 46A and 320(7A)."
5. The refusal goes on state as follows:
"Your passport was received, however, you also submitted your son's passport. This is itself not an offence, however you have also submitted an amended call in letter which shows your son's Dhaka VAF reference but also refers to your Delhi reference created to enable the issue of your visa remotely from Delhi Visa Section. This led me to believe that the letter had been amended. Your son's name appears at the top of the email, however this is not linked to the body of the email itself (i.e. it has been added subsequently). There are no Delhi records of any call in having been sent containing any reference number relating to your son. I am therefore satisfied to a high degree of probability that you have submitted a non-genuine document in an attempt to obtain a visa to which your sibling (son) is not entitled."
6. The claimants appealed against the second refusal. At the hearing before the judge it was argued that the situation of the claimant's son had no impact at all upon the present claim which had been allowed at appeal before the Tribunal. There could not be any assertion that the allegation of false representations had been made in relation to this appeal - the situation of the claimant's son was irrelevant. It should have been a matter of separate consideration if and when he applied for a visit visa.
7. The judge accepted that argument and wrote as follows:
"This is a most unusual decision. The two appellants have made an unsuccessful application for a visit visa as long ago as 29th April 2013. This was successfully appealed before this Tribunal on 28th July 2014 and this appeal was allowed. The Visa Office proceeded to reconsider their claims and refused to issue a visa on the basis of alleged false representations made by or on behalf of the appellant's son. The latter is not a party to this appeal.
The Tribunal has fully considered all of the above circumstances and have concluded that the Visa Officer has or had no legal power to overturn the decision of this Tribunal in relation to these two appellants and their individual claims. The situation of the appellant's son and any alleged false representations said to have been made in relation to him is a separate and distinct matter from this appeal. Any further appeal or claim on behalf of the appellant's son can be considered on its own individual merit. It cannot affect this claim. There is therefore no legal or factual basis for the Visa Officer to have reconsidered the decision of this appeal and claim as it was then and as now lodged."
8. The judge allowed the appeal and directed the Visa Officer to issue a visa to the two claimants.
The Grounds of Application
9. The Entry Clearance Officer sought permission to appeal on the grounds that the judge had erred in law. The judge was wrong to say that the Entry Clearance Officer had no legal power to overturn the decision of the Tribunal, having failed to have regard to MM (allowed appeal: further refusal) Pakistan [2008] UKAIT 00040 which held that the Entry Clearance Officer in that case was entitled to issue a new refusal under paragraph 320.
10. The Entry Clearance Officer continued to rely on paragraph 320.
11. Permission to appeal was granted by Judge Andrews on 7th December 2016.
Submissions
12. Mr Tufan relied on his grounds.
13. Mr Hossain submitted that it was the claimants' position that she knew nothing about the call in letter relating to her son but in any event it was not relevant to the question of whether the Entry Clearance Officer was entitled to re-refuse the mother and daughter. Paragraph 320 had no application here.
Consideration of Whether there is a Material Error of Law
14. The Entry Clearance Officer was undoubtedly entitled to consider whether entry clearance ought to be issued, following an allowed appeal. In MM the Tribunal held that in general Entry Clearance Officers were not entitled to ignore the effects of a judicial decision. However in that case, as in this, there was prima facie evidence of deception. The Tribunal held that the Entry Clearance Officer was entitled to refuse under paragraph 320, even if bound by a judicial decision to accept that the substantive requirements of the Immigration Rules had been met.
15. The judge was therefore wrong when he said that the Visa Officer had no legal power to overturn the decision of the Tribunal.
16. Second, paragraph 320(7A) states:
"Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge) or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application."
17. Mr Hossain sought to maintain his previous arguments made to the First-tier tribunal. However it cannot properly be said that the son's application was separate from the claimants. The family all applied for visit visas together, and the call in letter was linked to the other applications on its face, through the citing of the reference numbers. It is quite clear that the purpose of submitting the document was to obtain a visit visa for the son to travel with the other family members. If found to be fraudulent, it would clearly fall within the remit of paragraph 320(7A).
18. For the above reasons, the judge erred in law and his decision is set aside.
Findings and Conclusions
19. The question then remains whether the Entry Clearance Officer was justified in re-refusing application under paragraph 320(7A).
20. In the papers before the original judge there was a document verification report on the call in letter verifying it as false. The document itself was not included in the original papers but Mr Tufan produced it.
21. Mr Hossain had never seen this document before and was not in a position to make submissions on it. Accordingly I allowed a further seven days for him to take instructions on the document and informed him that the appeal would be determined after 27th January 2017.
22. Following the hearing I received a letter from the appellant's representatives stating that the appellants wish to make it unequivocally clear that they did not submit the document to the Entry Clearance Officer. They write:
"The respondent's verification report alleges that the applicant who is identified on the other side of the page as Abul Miha - not the present appellants - submitted an amended call letter which showed his Dhaka reference number (Dhaka 639338) (please see copy of original notice of refusal for this individual attached (Document C) which shows the same number) but also referred to his mother's Delhi reference number. The Tribunal will note that the impugned email (Document A) does not include any reference than that of Abul Miha. Therefore the allegation in the verification report is not supported by the Secretary of State's evidence."
23. According to the refusal, and evidence in the document, the call in letter shows the reference number of the brother, Abul Miha together with the reference number of his mother Saya Begum. Since her number appears on the document it clearly relates to her application. It is plainly an attempt to obtain a visa for Abul Miha.
24. However, according to the Entry Clearance Officer there are no Delhi records held for Abul Miha and no record of any call in having been sent containing any reference numbers relating to him.
25. The claimant's case, as set out in the Grounds of Appeal is that she is unclear as to the email being referred to came about and unable to comment on it. She asserts that she has not knowingly engaged in any deception.
26. The respondent has produced a document which they say did not emanate from their office as there were no Delhi records held for the appellant. There is no explanation from the appellants as to how this email could have been sent. I find that the respondent has discharged the burden of proof upon her to show that, on the balance of probabilities, it emanated from Abul Miha's family in an attempt to obtain a visa for him to which he was not entitled.
27. The second argument in the written submission repeats that made by the appellant to the First-tier tribunal, i.e. the respondent has no issue with the call in letter sent to the claimant inviting her to bring in her passport for the visa to be issued. The document from Abul Miha is therefore not one produced by the present appellants to obtain documents from the Secretary of State. The only documents they presented to obtain visas for themselves are genuinely issued call in letters.
28. However the call in letter for Abul Miha was plainly in relation to the application of the appellants. He was attempting to obtain a visa to visit the UK with them. Abul Miha has not made a separate application for another visit visa. The handwritten numbers on the top face of the email are those of the appellants, and clearly in relation to the present appellants' applications. There is no basis upon which to conclude that they are in relation to anything other than else the applications of his mother and sibling. It is quite wrong to say that the only documents they presented to obtain visas for themselves were genuinely issued call letters. They also produced a false call letter for their child/sibling.
Notice of Decision
The original judge erred in law. The decision is set aside. It is remade as follows. The appellants' appeals are dismissed.
No anonymity direction is made.

Signed Date 2 February 2017

Deputy Upper Tribunal Judge Taylor