R Prashant Shankar Naidu v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Lloyd Jones |
| Judgment Date | 15 March 2016 |
| Neutral Citation | [2016] EWCA Civ 156 |
| Date | 15 March 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2015/0041 |
[2016] EWCA Civ 156
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
UTJ Lane
JR54162014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd Jones
and
Lord Justice Beatson
Case No: C2/2015/0041
Amaka Nnamani (instructed by AH Law Ltd) for the Appellant
William Hansen (instructed by Government Legal Department) for the Respondent
Hearing date: 1 March 2016
Introduction
This is the appeal of Prashant Shankar Naidu, a citizen of the Republic of India, against the decision by Upper Tribunal Judge Peter Lane dated 21 November 2014 refusing him permission to bring judicial review proceedings and refusing him permission to appeal to this court. Permission was given by Burnett LJ on 2 April 2015. Mr Naidu's challenge is to the decision made by an Entry Clearance Officer in Mumbai on behalf of the Secretary of State on 23 January 2014 to refuse him a business visitor visa to the United Kingdom.
The application for a visa which resulted in the refusal on 23 January 2014 was Mr Naidu's second application. The second application was refused because of the basis on which the Entry Clearance Officer refused an earlier application. The earlier application had been refused on 17 December 2013 on two grounds flowing from the decision of the Entry Clearance Officer that Mr Naidu submitted a false document relating to his business, Unique Express with that application. The first ground was that Mr Naidu had not satisfied the requirements of paragraphs 46G of the Immigration Rules because the Entry Clearance Officer was not satisfied that he intended to undertake a genuine business visit. The second ground was that Mr Naidu had used deception in his application by submitting the false document so that the application had to be refused under paragraph 320(7A) of the Immigration Rules ("the Rules").
The consequence of a refusal of leave under paragraph 320(7A) is to bar those so refused from being given leave for specified periods of time, which in the case of the use of deception is for 10 years: see paragraph 320(7B)(ii). In Mr Naidu's case he would thus be barred until December 2023. It was the second ground on which Mr Nadu's first application was refused that led to the refusal of his second application pursuant to paragraph 320(7B).
Mr Naidu is the proprietor of a courier and logistics business, Unique Express, established in 2002. Its registered head office is in Pune, India, and it has branch offices. These proceedings concern the status of the firm's operation in Mumbai at a specified address. On 29 November 2013, Mr Naidu applied to the Entry Clearance Officer at the British Deputy High Commission in Mumbai for entry clearance to attend business meetings with Paragon Courier and Cargo ("Paragon") at an address in Hounslow. As well as his application form, he submitted a copy of the invitation letter from Paragon and a letter relating to Unique Express's business. The letterhead to the letter on Unique Express's paper gives two addresses for Unique Express, one in Mumbai and one in Bangalore. The Mumbai address is "Parle Coloy … Vie Parle, ( East) Mumbai 400057". The foot of the document contains the address of "HO", i.e. head office, which is an address in Pune. The address of the firm in the application form was the Pune address.
The decisions refusing entry clearance
A letter dated 17 December 2013 refused the November application for entry clearance. The Entry Clearance Officer's letter stated that the onus is on applicants to demonstrate that they meet the requirements of the Rules. It referred to Mr Naidu's declaration in the application that the information he provided is complete and true to the best of his knowledge, and then stated:
"In support of your application you have submitted a letter relating to your business, Unique Express. As a result of checks made by this office, detailed in a Document Verification Report, I am not satisfied, on the balance of probabilities, that this document is genuine. This fact has damaged the credibility of your application and I am therefore not satisfied that you intend to undertake a genuine business visit or that you will be maintained and accommodated without recourse to public funds or taking employment (paragraph 46(g)(i) – (ii) of HC 395 as amended.
Furthermore, because in your application you submitted what I am satisfied to be a false business letter, your application is refused under paragraph 320(7a) [sic] of the Immigration Rules. You should note that because this application for entry clearance has been refused under paragraph 320(7a) [sic] of the Immigration Rules, any future applications may also be refused under paragraph 320(7b) [sic] of the Immigration Rules until 17 December 2023 (subject to the requirements set out in paragraph A320)."
Mr Naidu was given no further details of the document verification process at that time. The process was summarised in an email response dated 20 February 2014 by the Secretary of State to an emailed letter before claim from Mr Naidu's solicitors and a redacted copy was provided with the Secretary of State's Acknowledgement of Service dated 19 June 2014. I will summarise its contents later in this judgment.
After Mr Naidu received the notice of refusal, on 6 January 2014 he submitted a second application online. In part 8, question 88, he referred to the refusal of his previous application on the ground of a false invitation letter and stated that he wished to "appeal and clarify so [the ECO] can consider my application for visa approval". He stated that he was enclosing the invitation letter from Paragon and also adding an invitation letter from "an additional counterpart".
In addition to his online application, Mr Naidu wrote to the Deputy High Commission. His letter, dated 8 January 2014, stated that he wished to provide clarity on the business relationship between Unique Express and Paragon as he felt the decision rejecting his application was based on "less documentation". Later in the letter, he expressed his surprise and shock that the application had been rejected on the ground that the invitation letter submitted was not genuine. He stated that he was also a director of Total Courier and Cargo Logistics PBT Ltd, which had business relations with Paragon, and enclosed clarification by Paragon and what he described as "an additional invitation" from another freight forwarding company, Maina, which is based in Middlesex.
The explanation for Mr Naidu's covering letter focusing on the status of the invitation rather than the genuineness of the covering letter relating to Unique Express may have been that there was nothing in the decision letter to indicate that the problem related to the address given for Unique Express's office in Mumbai. Although he did not refer to them in the covering letter, Mr Naidu also submitted an unsigned and undated document on Unique Express's paper. It was headed "Additional Documents" and listed documents under six headings. At one stage, Ms Nnamani maintained these documents had been submitted with the first application. In view of the terms of the letter dated 8 January and the reference to the submission of "an additional invitation" from Maina, she accepted they were only submitted with the second application.
The other documents were submitted in order to show that Unique Express was a genuine and subsisting business. They included many documents relating to the Pune address, the financial status of Mr Naidu and Unique Express, other property owned by him, his relationship with Total Courier, and documents about his family status. The documents relating to Unique Express showed that there was a business of that name which was registered as such with the Indian Ministry of Commerce and was also registered with the Central Board of Excise and Customs, had an import/export code number, and filed income tax returns. Given the particular concern of the Entry Clearance Officer, then unknown to Mr Naidu, those documents do not directly assist this application although they do provide evidence that the business was genuine. But another document, of direct relevance to the particular concern, was also submitted. It is a registration certificate of establishment under the Bombay Shops and Establishments Act 1948 dated 30 November 2012, giving the same Mumbai address for Unique Express as that on the letterhead with the applications.
Ms Nnamani's case was initially presented on the basis that two other relevant documents, an "Agreement of Leave and Licence" dated 4 September 2012 in which a Mr Nishar granted Mr Naidu a licence over those premises for the business, and a bill from Tata Teleservices for Unique Express at the Mumbai address, were submitted to the Entry Clearance Officer at that time. Neither of these is mentioned on the list of documents or the documents that were listed as submitted with the second application in an email dated 18 February 2014, which is stated to be a letter before claim. The bill from Tata is dated 7 January 2014, and relates to the period between 15 December 2013 and 14 January 2014. Mr Hansen is wrong to state that the bill could not have been submitted under cover of the letter dated 8 January, because it may have arrived just before that letter was posted. But the failure to refer to it in either list means the court cannot be satisfied that it was then submitted. The same is true of the Agreement of...
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Li v The Secretary of State for the Home Department
...because the Secretary of State was not satisfied to the requisite standard that the appellant had used deception: see R (Naidu) v Secretary of State for the Home Department [2016] EWCA Civ 156 per Beatson LJ at [23] and at [28] where the court explained: “…it is clear in the light of Giri'......