R Saimon v Upper Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 28 April 2015 |
| Neutral Citation | [2015] EWHC 2814 (Admin) |
| Date | 28 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4277/2014 |
[2015] EWHC 2814 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice King
CO/4277/2014
Mr Michael Biggs (instructed by Universal solicitors) appeared on behalf of the Claimant
Mr David Blundell (instructed by Government Legal Department) appeared on behalf of the Interested Party
This has comes before me pursuant to the order of Mr Justice Cobb of 24 November 2014 as a rolled-up hearing to determine whether permission for judicial review should be granted and if permission be granted, to determine relief in the light of CPR part 54 rule 7A. The context is a challenge to a decision of the Upper Tribunal of 19 August 2014 adopting the reasoning for refusal of permission to appeal by the First-tier Tribunal Judge Judge Ford dated 19 June 2014. The Upper Tribunal's decision was accordingly a refusal of permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal. That decision was the 3 June 2014 and followed a hearing on 19 May 2014. The First-tier decision in turn had dismissed the appellants's appeal against a decision of the Secretary of State refusing him leave to remain.
This is, therefore, an application for permission to proceed for judicial review to which the decision of the Supreme Court in CART applies [2011] UKS 28 and the provisions of CPR 54.7A. Under subparagraph 7 of 57.7A, this court will grant permission to proceed only if it considers (a) that there is an arguable case which has a reasonable prospect of success, that both decision of the Upper Tribunal refusing permission to appeal and the decision of a First-tier Tribunal against which permission to appeal was sought are wrong in law and that, (b) that either the claim raises an important point of principle or practice or there is some other compelling reason to hear it.
The application raises a short point but important point as to the sufficiency of the so called "verification" evidence relied on by the Secretary of State and then accepted and relied on by the First-tier Tribunal to establish that a letter and statements produced from the Affin Bank, in support of the underlying application to the Secretary of State, were false and thus giving rise to the refusal of the application for leave to remain pursuant to paragraph 322(1A) of the Immigration Rules. That provides as follows:
"322 In addition to the grounds for refusal of extension to stay …, the following provisions apply in relation to the refusal of an application for leave to remain …. 1A, where false representations have been made or false documents or information have been submitted (whether or not material to the application and whether or not to the applicant's knowledge or material facts have not been disclosed) in relation to the application or an order to obtain documents from the Secretary of State or a third party required in support of the application."
The consequence of a refusal pursuant to 322(1A) is profound as far as the claimant is concerned. The effect of paragraph 320(7B) is that save in narrow exceptional circumstances, any future application for further leave to enter or remain by the claimant will be refused.
The factual background is this: the claimant is a national of Bangladesh. On 19 November 2008 he was granted leave to enter the United Kingdom as a student, a Tier 4 (general) student, until 30 April 2013. On 12 December 2012 he applied for leave to remain as a Tier 1 (Entrepreneur) pursuant to paragraph 245DD of the immigration rules. This was refused for reasons set out in the Secretary of State's decision letter of the 11 December 2013. That stated under the heading General Grounds Reasons for Refusal:
"In your application you submitted a letter and statement from Affin Bank. I am satisfied that the documents were false because they had been verified by the bank as being non-genuine, as false documents have been submitted in relation to your application. It is refused under paragraph 322(1A) of the Immigration Rules. For the above reasons I am also satisfied that you have used deception in this application."
The Affin Bank documentation related to funding made available by a third party named Mr Sahad Bin Sultan Al Hussan. This was the sponsorship funding on which the claimant originally relied. The documentation appears as an exhibit to a witness statement now before me from Mr Evans of the interested party's immigration service. There is no issue with what is there exhibited. It is that which was before the Secretary of State and then before the First-tier Tribunal. It takes the form of a letter headed To Whom it May Concern together with attached bank statements. It gives the name of the customer as being Sahad Bin sultan Al Hussan. It gives among other details a customer ID and an account number. It describes Mr Al Hussan as the uncle of the claimant. It is signed, the letter, by somebody purporting to be the chief of the branch executive of the Affin Bank at the Kangar Branch in Perlis, Malaysia, that is to say a Abdullah Al Hasemi.
I should add that the decision of the Secretary of State for refusal was also made on a quite separate ground. This was because before the claimant's application was determined by the Secretary of State, the claimant changed his third party sponsor from Mr Al Hussan to Mrs Hussne Ara Begum. The application was rejected on the additional ground that the sponsorship bank documentation relating to Mrs Begum was out of date. Although no challenge has been made in these proceedings to that finding, I accept that if as regards the determination of the First-tier Tribunal in relation to the falsity of the letter and bank statements purportedly from Affin Bank, does disclose an arguable error of law for the purposes of CPR 54.7A(7) and if the CART criteria as expressed in subparagraph b of subsection 7 of 54.7A are made out, then this application for permission should not fail simply because that the underlying application had been dismissed by the Secretary of State on a quite separate basis. This is because I accept that the ramifications for the claimant which I have already identified, of the decision that the documents were false and of the application being refused pursuant to 322(1A) of the Immigration Rules, goes well beyond the failure of this particular application to the Secretary of State.
The First-tier Tribunal dismissed the claimant's appeal against that decision of the Secretary of State. Before the hearing on 19 May before the First-tier Tribunal, the claimant had submitted a witness statement from himself dated 14 May 2014 in which he said at paragraph 4 and 5 as follows:
"With regard to the first reason for refusal, to say the least, the procedure and the time of verification has not been mentioned in the notice of refusal.
Our first investor Mr Sahad Bin Sultan Al Hussan emailed me in the middle of April 2013 saying that he no longer be able to be our investor as his existing business would need money to invest into. Please see enclosed copy of email. We then had to replace the first investor due to his change of circumstances. I do not understand on what basis of verification the respondent reached to a conclusion confirming our documents to be not genuine. Further to our recent correspondence with Mr Al Hussan, provided me his previous account bank balance confirmation from the Affin Bank, Kangar Branch, Malaysia. please see the enclosed copy of letter from Mr Sahad Bin Sultan Al Hussan and the recent letter from the Affin Bank."
What was then exhibited in that witness statement was a document dated 4 April 2014, apparently from Mr Sahad Bin Sultan Al Hussan to the manager of the Affin Bank, Kangar in which he asked, having given his account details with the branch, that the manager confirm the balance of his account on the day in question and the authenticity of the solvency letter. In addition, there was exhibited a purported reply dated 25 April 2014 from Mr Hasemi, the same individual on the earlier communication dated 25 April 2014 to Mr Al Hussan, in which he confirms that the deposit account number, the customer ID number and the balance on 6 December 2012 was that which had been previously asserted in the documentation which according to the Secretary of State was false. There was also exhibited a declaration document purportedly from Mr Al Hussan saying among other things:
"Recently I am informed through Mr Saimon (I interpose the claimant) the Tier 1 application was refused because the document provided by me was confirmed as not genuine. I am quite a surprised to have heard that news as I am bona fide customer of Affin Bank bearing account number (stated). Subsequently, I wrote to Affin Bank a complaint letter of 4 April in regard with the authenticity bank statement issued from Affin Bank dated 6/12/2012. Please see enclosure. In reply to my query I received a letter from the Affin Bank, Kangar, Perlis Bank dated 20 April. Please see enclosure. In this form I made this statement before a notary public in truth and in knowledge."
There is then a purported signature of Mr Al Hussan and an addendum from a purported notary confirming that the letter signed by Al Hussan "is known to me and is authentic and valid."
The grounds of appeal to the First-tier Tribunal contains the following:
"18. The appellant confirms to us that his previous sponsor's statement of Affin Bank Malaysia which he submitted with the...
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