Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/28023/2012

THE IMMIGRATION ACTS

Heard at Manchester
Determination Promulgated
On 12 June 2013
On 19 June 2013

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

RAHEL AHMED
(no anonymity order made)
Appellant

and

ENTRY CLEARANCE OFFICER, DHAKA
Respondent

Representation:

For the Appellant: Mr Z Khan, Legal Representative
For the Respondent: Ms C Johnstone, Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals with permission against the determination of First-tier Tribunal Judge P Bryant promulgated on 21 February 2013 upholding the respondent’s decision to refuse his application for entry clearance to the United Kingdom as a visitor.
2. The appellant’s case is that he is self-employed looking after the family farm, his total monthly income being 10,000 Taka per month. He wishes to come to the United Kingdom to visit his brother and sister-in-law (“the sponsors”) and other relatives for two weeks. The sponsors will accommodate and support the appellant while he is here.
3. The respondent refused the application on 9 July 2012 as he was not satisfied that the appellant is genuinely seeking entry as a visitor for a limited period, intended to leave the United Kingdom at the end of his visit, or could meet the costs of his onward journey. That latter point was conceded by the respondent on review by the Entry Clearance Manager on the basis of the grounds of appeal and the document adduced in support of those.
4. The respondent refused the application on the basis that the appellant had failed to provide evidence of his income, it being noted that the bank statement adduced disclosed deposits which did not reflect his stated income, and which covered a period of less than two months. In particular it was noted that the expenditure shown in the accounts was greater than that claimed and that in May 2012 alone he had deposited 306,300 Taka, some 77 times his claimed disposable monthly income.
5. The appeal came before Judge P Bryant who dismissed the appeal finding :
(i) That the appellant did farm land in Bangladesh [23], but that he was not satisfied as to his income;
(ii) That it was not open to him to take into account crop receipts and bank statements produced at the hearing as they all post-dated the date of decision, and no explanation had been given for why crop receipts could not have been produced to the respondent;
(iii) That the relevant financial documents of the appellant were therefore those produced to the respondent and that the respondent’s clear concerns about these had not been addressed by further evidence before him;
(iv) That in light of the discrepancy in the sponsor’s evidence about who would be paying for the appellant’s flights, that the respondent’s concession on this issue could not stand [24], and that this discrepancy goes to he credibility of the application and sponsorship.
(v) That he was not satisfied that the appellant’s personal circumstances in Bangladesh were as claimed.
6. The appellant sought permission to appeal, submitting that the judge had erred:
(i) By concluding that the additional evidence adduced post-dated the date of decision when it did not [3.(a)] ; and, had therefore wrongly excluded it [3.(b)]
(ii) In misunderstanding the sponsor’s evidence as to who was going to bear the cost of the appellant’s return airfare [3.(c)];
(iii) In misunderstanding the evidence as the receipts corroborate the appellant’s evidence of deriving income from the sale of farm produce [3 (d)].
(iv) By failing to consider all the evidence properly and making unlawful assumptions [4].
7. On 7 May 2013 First-tier Tribunal Judge Nicholson granted permission to appeal, noting that the judge had arguably erred in not considering the crop receipts which pre-dated the date of decision, and that these may have made a difference to the outcome. Permission was granted on all grounds.
Does the determination of the First-tier Tribunal involve the making of an error of law?
8. It is not disputed that the judge excluded from the evidence he considered crop receipts contained in the supplementary bundle which had been produced at the hearing. It is evident that five of the documents pre-date the decision, and that the judge therefore erred in not considering them.
9. Mr Khan submitted that the failure to take the documents into account was capable of affecting the outcome of the appeal as they demonstrate that he has an income, and that the judge had not dismissed the appeal on the basis of a failure to show a particular income, although he did concede that the receipts did not correspond to specific bank deposits.
10. Ms Johnstone submitted that the outcome would not have been different as the judge had also concluded that there had been no explanation for the large deposits into the appellant’s bank account, well in excess of his income.
11. In reply, Mr Khan submitted that the judge had not based his decision on the failure to explain large deposits. He did, however, concede that there was nothing in the evidence to explain the deposits and that the sponsor had perhaps not addressed this point.
12. The respondent’s concerns about the documentary evidence of the appellant’s financial circumstances were two-fold: first, the lack of evidence to confirm income and expenditure; and, second, a failure to explain the large deposits well in excess of claimed income.
13. As Mr Khan accepted, there was no evidence in respect of the latter. The bank statement clearly shows large deposits totalling 303,600 Taka in May 2012. That is nearly three times his claimed annual income. The respondent was entitled to raise concerns about this, and clearly did so in the refusal letter. The appellant did not provide any explanation, and while the judge should have taken the pre-decision crop receipts into account, it has been conceded that they do not correspond to deposits. There is therefore no evidential basis on which these large discrepancies in the financial position as put forward could be explained. The judge was entitled and did [23] rely on the large unexplained deposits and considered, as it was open to him to do, that the appellant had not proved his financial circumstances in Bangladesh.
14. As to the inconsistency identified [24] between the evidence of the sponsor who said that the appellant would be paying for his airfare, and the appellant saying that the sponsor would be meeting that cost, it was open to the judge to find that this was a discrepancy casting doubt on credibility, and it was open to him for the reasons given to disregard the respondent’s concession on that basis.
15. It was open to the judge to conclude [25] that the credibility of the sponsorship and the application was undermined, having found that the appellant had not proved his financial circumstances in Bangladesh, and he gave adequate reasons for doing so.
16. In conclusion, while the judge did err in failing to take into account relevant documents put before him, these were not capable of affecting the outcome, given that they did not address the issue of the large, unexplained deposits well in excess of the appellant’s claimed annual income. The judge was entitled to draw the adverse conclusions he did, and to conclude that the appellant was not a genuine visitor and did not intend to return to Bangladesh at the end of his visit. The reasons he gave for so finding were permissible and open to him. The determination did not involve the making of an error of law and I uphold it
Summary of Conclusions
1. The determination of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

Signed Date: 17 June 2012

Upper Tribunal Judge Rintoul