Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/14421/2013

THE IMMIGRATION ACTS

Heard at Field House Decision & Reasons Promulgated
On 12 February 2016 On 22 February 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE KAMARA

Between

THE ENTRY CLEARANCE OFFICER (DHAKA)

Appellant

and

MISS RUHENA AKHTER
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Ms A Fijiwala, Senior Home Office Presenting Officer
For the Respondent: Mr M K Hasan, Kalam Solicitors

DECISION AND REASONS

1. The Entry Clearance Officer (ECO) appeals the decision of First-tier Tribunal Judge Majid, promulgated on 21 August 2015.

Background

2. On 17 June 2013, the respondent sought leave to enter the United Kingdom in order to visit her sister and brother in law, who reside in this country. Two earlier applications had been refused in 2007 and 2011.
3. Her application was refused on 8 July 2013 as the ECO was not satisfied that she was genuinely seeking entry only as a visitor or that she intended to leave the United Kingdom at the end of the visit. Furthermore, because the ECO was not satisfied that the respondent, who intended to bear the cost of her travel, was genuinely in receipt of the stated funds from self-employment, there was concern whether she could meet the cost of the return or onward journey.

4. In appealing the decision, the respondent provided an explanation for the large sum, which was deposited in her account prior to the application for entry being made.

5. The ECO reviewed the decision in the knowledge that the respondent's appeal was listed for a hearing on 8 September 2014. A second refusal of entry clearance resulted from this review dated 20 July 2014. One additional matter was raised; that the respondent had been refused entry for using deception within the last 10 years and her application was therefore refused under paragraph 320(7B).

6. An Entry Clearance Manager (ECM) reviewed the decision on 13 August 2014 and maintained it. With regard to the previous allegation of deception, it was noted that the respondent withdrew her appeal against that particular decision and no evidence had been put forward to address the issue.

7. When this matter came before the FTTJ, he found that the respondent was a "simple lady" who could not be accused of fraud and was a genuine family visitor.

8. The grounds of appeal argued that the FTTJ was wrong to assert that the allegation of deception was not supported by "admissible cogent evidence" owing to the existence of a Document Verification Report (DVR). It was also said to be far from clear how the FTTJ concluded that the respondent was how he described her owing to the lack of details relating to the previous application and refusal.

9. FTTJ Frankish granted permission to appeal, commenting thus; "with no mention of the fraudulent NHS letter referred to by the respondent, it cannot be gainsaid that an arguable error has arisen" in relation the FTTJ's finding that the respondent was a "simple lady who cannot be accused of fraud."

The hearing

10. At the hearing before me, Ms Fijiwala produced the letters, which were the subject of the DVR. Mr Hasan stated that these letters had never been produced before despite two adjournments of the appeal for this to be done. While copies were made of these letters, they did not form part of my consideration as to whether there was an error of law owing to the clear indication that they were not before the FTTJ.

11. I proceeded to hear submissions from both representatives.

12. Ms Fijiwala accepted that it was not clear if the letters, which were referred to in the DVR were before the FTTJ. However, she argued that the DVR itself was before the FTTJ but that there had been no reference to this item in his decision. She acknowledged that the FTTJ had shown some awareness of the deception issue in that he had concluded that the respondent was a "simple lady." He also found that the allegation was not supported by cogent evidence. Ms Fijiwala argued that it was not clear if the FTTJ had regard to the previous application and decision. Furthermore, there had been no consideration of paragraph 320(7B) of the Rules and this amounted to a fundamental error of law.

13. Mr Hasan emphasised that permission was granted on the basis of the FTTJ's description of the appellant as a simple lady. There had been no representation on behalf of the Entry Clearance Officer at the hearing. While Kalam Solicitors received the DVR, by post, it was not accompanied by the letters or the emails referred to in that report. He argued that the FTTJ clearly recorded that no proof of forgery was submitted. A crucial document that of the email conversation between the ECO and the alleged writer of the letters was missing at the time of the hearing. There had been no error of law.

14. In response, Ms Fijiwala argued that the FTTJ had not considered the evidence before him. If that evidence was to be discounted, he should have explained why.

Decision on Error of Law

15. I decided that the FTTJ materially erred in his treatment of the DVR and the associated issue of the refusal of the application under paragraph 320(7B) of the Rules. My reasons are as follows.

16. The second notice of immigration decision, dated 20 July 2014, states the following; "You were previously refused entry clearance for using deception by providing a non-genuine NHS letter (Dhaka/565625 refers). As you have previously employed deception in an application for entry clearance within 10 years, after referral to an Entry Clearance Manager, your current application is refused under paragraph 320(7B) of the Immigration Rules." Elsewhere in the same decision, it is noted that the respondent withdrew her appeal against that decision. The ECM's review also noted that the respondent had yet to provide any evidence to address the previous refusal, which occurred on 20 January 2011.

17. While it can be inferred from [12] of the decision and reasons that the FTTJ decided that there was no deception in this case, he does not mention paragraph 320(7B) of the Rules at any stage.

18. At [21] the FTTJ states as follows;

"It will be unfair to accept an allegation of heinous moral turpitude without "clear and convincing evidence" of production of forgery or deception. Accordingly, it cannot be legal to accept a datum of this kind against an Appellant, which is not supported by admissible cogent evidence. "

19. In the previous commentary, there is no indication that the FTTJ has considered the contents of the DVR, which both representatives accepted was before him. That document states that a Dr Sayers of Newcastle upon Tyne Hospital, the purported writer of two NHS letters both dated 24 November 2010, was asked by an ECM to confirm whether he had written them. According to the DVR Dr Sayers stated that he did not write the second of the two letters. Accordingly, the ECO concluded that the document was not genuine. The communication between the ECM and DR Sayer was said to have been made by email.

20. Mr Hasan rightly argued that the DVR was not accompanied by either the email communication or the two letters referred to above. Nonetheless, FTTJ Majid ought to have explained why he found the DVR to be unreliable evidence of deception, if this is what he found. The decision and reasons makes no reference to the DVR at all and consequently, it cannot be said with any certainty that it was taken into consideration by the FTTJ in reaching his conclusions.

21. The FTTJ failed to give any or any adequate consideration to the DVR or to the relevant Immigration Rules.

22. I accordingly, set aside the decision of the FTTJ in its entirety.

23. The ECO's appeal is allowed.

Decision

(1) The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law

(2) The decision of the FTTJ to allow the appeal under the Immigration Rules is set aside, with no findings preserved.

(3) The appeal is remitted to the First-tier Tribunal for a de novo hearing before any judge except FTTJ Majid.

(4) The Entry Clearance Officer is directed to produce the email communications between the ECM and the said writer of the NHS letters referred to in the DVR no later than 10 days before the substantive hearing of this appeal.

No application for anonymity was made and I could see no reason to make such a direction.

Signed Date: 14 February 2016

Deputy Upper Tribunal Judge Kamara