Tribunal decisions

The decision

IAC-HW-MP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/13811/2013
VA/13845/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 15th August 2014
On 1st October 2014

Before

upper tribunal JUDGE RENTON

Between

SARVAR IRAJI (FIRST APPELLANT)
MAHROOZ IRAJI (Second appellant)
(anonymity direction not made)
Appellants
and

ENTRY CLEARANCE OFFICER - ISTANBUL
Respondent

Representation:
For the Appellants: Mr T Hodson of Elder Rahimi Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DETERMINATION AND REASONS
Introduction
1. The Appellants are a father and his daughter. The First Appellant was born on 23rd March 1957 and the Second Appellant on 1st May 1987. They are both citizens of Iran. They applied on 14th May 2013 to the British High Commission Istanbul for entry clearance in order to visit respectively their son and brother Behrooz Iraji. That application was refused for the reasons given in a Notice of Decision dated 11th June 2013. The Appellants appealed that decision, and their appeals were heard by Judge of the First-tier Tribunal Grant (the Judge) sitting at Taylor House on 7th May 2014. He decided to dismiss the appeals for the reasons given in his Determination of 9th May 2014. The Appellants sought leave to appeal that decision, and such permission was granted on 18th June 2014.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Entry Clearance Officer refused the applications under the provisions of paragraph 320(7B) of the Statement of Changes in Immigration Rules HC 395 because he was satisfied that deception had been used by both Appellants when making previous applications for leave to enter. In the case of the First Appellant, it was alleged that when applying for entry clearance in October 2009 he had stated that his son Behrooz lived with him in Iran whereas at that time he was resident in the UK. In the case of the Second Appellant, it was alleged that when applying for entry clearance in September 2007 she had stated that she had no relatives in the UK apart from her two uncles whom she proposed to visit whereas her brother had been resident in the UK since 2003.
4. The Judge dismissed the appeals because he found that he was satisfied that there had been such deceptions. At the hearing, Mr Hodson argued that the Judge had erred in law in coming to this conclusion in that the Judge had applied the wrong standard of proof. In paragraph 12 of the Determination he had erroneously described this as being no more than the balance of probabilities whereas in a case such as this the burden was upon the Respondent to establish deception to the higher end of the balance of probabilities. His application of the wrong burden of proof manifested itself in the Judge finding the allegations proved against the Appellants although the Judge did not have before him a complete version of the original Visa Application Form of the First Appellant, and no copy of the original Visa Application Form of the Second Appellant. The Judge had relied upon inference and speculation.
5. I indicated to Mr Duffy that I did not need to hear a submission from him as I had decided that there was no error of law contained in the Judge's decision. My reasons for that conclusion are as follows.
6. In my judgment, the Judge came to a decision open to him on the evidence before him and which he fully explained.
7. As regards the standard of proof, the Judge wrote at paragraph 12 of his Determination as follows:
"12. Mr Hodson submitted quite correctly that the Respondent bears the burden of showing on a balance of probabilities that the Appellants acted dishonestly. If, for example, I find that they merely slipped up and ticked the wrong box then the Respondent would not have made out her case, but it goes further than that. I have to find that they acted dishonestly."
It is apparent from what the Judge wrote that the standard of proof which he applied in deciding the issue of prior deception was something more or higher than just the balance of probabilities. He required it to be shown that the Appellants had acted dishonestly. In the subsequent paragraphs the Judge then thoroughly analysed the evidence available to him and explained in detail why he was satisfied that there had been deliberate dishonesty in the completion of the earlier Visa Application Forms. The Judge described how he was able to glean as much from that part of the First Appellant's original Visa Application Form available to him. The Respondent's bundle before the Judge had contained copies of only the odd numbered pages of that Visa Application Form, but from those pages the Judge was able to identify without any speculation or assumption that the First Appellant had been dishonest in completing that form. Likewise, at paragraph 17 of the Determination the Judge explained how he was able to make a finding of dishonesty against the Second Appellant even though the Second Appellant's original Visa Application Form was not before him. It is to be noted that it is not disputed that both Appellants completed their original Visa Application Forms in the way alleged. Their case was that when they completed those Visa Application Forms they were unaware that the Sponsor was present in the UK. The Judge in his reasons for dismissing the appeals demonstrated how he found that could not be the case.
Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
Anonymity
The First-tier Tribunal did not make an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I find no reason to do so.

Signed Date

Upper Tribunal Judge Renton