Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/28489/2012
VA/28493/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 30 May 2013
On 4 June 2013
Prepared 30 May 2013

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

MR RAMAKRISHNAN JOGHEE RAMALINGAM (first appellant)
MRS LEELA RAMAKRISHNAN (Second Appellant)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Miss Sharma
For the Respondent: Miss Tanner, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The first appellant was born on 11 February 1946; the second appellant was born on 9 January 1952. Both are citizens of India and appeal with permission against the determination of First-tier Tribunal Judge Brenells, promulgated on 7 March 2013, dismissing their appeals against the respondent’s decision to refuse them entry clearance to the United Kingdom as visitors.
2. The appellants, who are husband and wife, wish to come to the United Kingdom to visit their sons and their respective families, who live in the United Kingdom. The first appellant is retired; the second appellant is dependent on him. They live in a house owned by their youngest son and the first appellant receives a pension. In addition, they receive money sent to them by their sons in the United Kingdom.
3. The respondent refused the appellants’ applications for entry clearance on the basis that he was not satisfied that either of them was genuinely seeking entry as a visitor for a period not exceeding six months or intended to leave the United Kingdom at the end of their visit. He reached these conclusions on the basis that the appellants had failed to provide evidence of the first appellant’s income, failing to submit satisfactory evidence of their personal and financial circumstances.
4. The appellants appealed against that decision in that it is averred that the appellants have close links to India and will return; that the first appellant has a pension; that the eldest son sends money to the appellants and that their youngest son has purchased a home in India for his parents [8] and that the sons continue to send the appellants funds [10]; that they have provided sufficient evidence of their personal and economic circumstances [11].
5. The respondent was not represented before the First-tier Tribunal. The judge heard evidence from the appellants’ older son and submissions from Miss S Aly of Counsel, instructed on behalf of the appellants. The judge concluded that:
(i) The principal reason for refusing the appellants’ application was the failure to provide bank statements [7] and that he could not be certain that the bank statements have been submitted [8];
(ii) Although a bank statement had been submitted, its dates indicated that it had not been submitted with the application [10]; and, the bank statement was in the name of the appellants’ youngest son and the first appellant;
(iii) The first appellant says his income consists of a monthly pension of 5,000 rupees; that there are credits in the bank statement confirming this; that the sons in the United Kingdom also send gifts to the appellant but that the appellants said that they do not need to rely on these;
(iv) The first appellant indicated his monthly living costs are 10,000 rupees [11]; that there are large credits into the bank account which are well in excess of the first appellant’s income; that no commentary on the bank account fluctuations had been provided and no explanation given; that no explanation has been given for the appellants living in a house owned by their youngest son [12];
(v) In considering the facts in the round and particularly the failure to explain how someone with an income of 5,000 rupees could have a regular monthly expenditure of twice that as well as unexplained large credits in a jointly held account, that the appellants had not provided a true picture of their finance and they had not shown that they are genuine visitors [16].
6. The appellants sought permission to appeal against this decision on the grounds that:
(i) The judge had relied upon suspicion and speculation [4];
(ii) The appellants are genuine visitors whose sole intention is to visit their sons and to return to their financially secured life in India [5] and that the judge had erred in drawing inferences contrary to this;
(iii) The judge should have “exercised his discretion” by taking into consideration the bank statements [6];
(iv) The judge had raised issues in respect of bank account fluctuations and the appellants living in a house owned by their son which were not issues raised by the Entry Clearance Officer and which he had failed to clarify with the sponsor [7] and that it was unreasonable to use these to dismiss the appeal;
(v) The judge had failed to attach proper weight to the evidence provided by the appellants’ sponsor [8]; that the appellants had honestly disclosed all their personal and financial circumstances [9]; that the judge had erred in scrutinising the appellants’ finances to such an extent as he did and to dismiss their appeal [9].
7. Permission to appeal was granted by Judge Pooler on 4 April 2013.
Does the determination of the First-tier Tribunal involve the making of an error of law?
8. Miss Sharma submitted that the judge had erred in failing to note that there were two bank statements provided: one relating to a joint account held by the first appellant and his younger son, the second being a joint account for the appellants. She submitted that the first account showed that the transfers were from the United Kingdom and that some of the money transferred from the United Kingdom was from the youngest son to pay the mortgage on the property he had bought for his parents. She submitted that this was clear with the fact that payments went out to HDFC. The fact that the son had bought the property was set out in a letter. She submitted that the judge had failed to look at the documents properly or to ask questions of the sponsor.
9. In reply Miss Tanner accepted that the judge had not differentiated between the two statements at pages 10 and 11 of the bundle but had noted that the statements, dated after the date of application, could not have been available to the respondent and in any event did not adequately explain the appellants’ circumstances prior to the date of application. She submitted also that there were inconsistencies in the appellant’s own evidence as to whether or not he needed to rely on the gifts of money from his sons and the amount of these gifts was not quantified. She submitted that it was open to the judge to conclude that he had not been given a full account of the appellants’ circumstances and thus to reach the conclusions made. She submitted that any error was not material.
10. In reply Ms Sharma accepted that she could not assist in explaining whether any of the points she had made regarding the mortgage and the parents had been put to the judge or whether he had been taken to the relevant pages.
11. It is not disputed that the first appellant claims to have a monthly expenditure of 10,000 rupees, twice his pension income. It is not disputed either that the judge accurately recorded his evidence as being that he and his wife did not need to rely upon the money or gifts transferred from their sons. As Miss Sharma accepted, this is an inconsistency.
12. It was incumbent on the appellants to demonstrate, in the light of the concerns raised, that their intentions were bona fide. Whilst it is not a requirement of the Immigration Rules that an applicant provide a full breakdown of his financial and other circumstances, it was open to the judge to make an assessment of that in considering the appellant’s intention. The failure to provide sufficient evidence of financial circumstances was an issue raised in the refusal notice yet the evidence presented to the judge contained a significant discrepancy between the appellant’s income and expenditure.
13. It is now said that the judge erred in confusing two different bank statements, but that did not form part of the grounds of appeal nor was any application made to amend them. While I accept that the joint account between the first appellant and his son does show remittances from the United Kingdom and regular payments out to HDFC, and there is a letter at page 73 of the bundle from the younger son saying that he has remitted money as he has bought a house for his parents and there is evidence [pages 7 to 8] of a mortgage, it is not at all clear that these points were put to the judge, as Ms Sharma accepted. It is for the appellants to put their case.
14. I consider that the judge did err in failing to raise with the appellants or their representatives what he found to be inconsistencies in the bank statements, a matter properly raised in the grounds of appeal but I do not consider that this error was material, given that even had the judge accepted the explanations now given, these do not explain the serious inconsistency in the first appellant’s evidence about his income and expenditure. Further, even were it to be suggested that the 10,000 rupees expenditure included housing costs, this makes little sense given that the mortgage repayments are themselves 19,320 rupees per month.
15. Accordingly, I am satisfied that even had there been no error whereby the judge failed to ask for an explanation or put points to the appellant that had not yet been taken, he would have reached the same conclusion given that nowhere in the evidence before him is there an explanation for the serious inconsistency in the first appellant’s claims regarding his income and expenditure.
16. For these reasons, I consider that the determination of the First-tier Tribunal did not involve the making an error of law and I uphold it.

SUMMARY OF DECISION

1 The determination of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

Signed Date: 3 June 2013

Upper Tribunal Judge Rintoul