Re Mumu (Paragraph 320: Article 8: Scope: Bangladesh)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Peter Lane |
| Judgment Date | 27 April 2012 |
| Neutral Citation | [2012] UKUT 143 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 27 April 2012 |
[2012] UKUT 143 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Peter Lane
For the Appellant: Mr A. Miah, Counsel, instructed by Sony Sadaf Haroon Solicitors
For the Respondent: Mr J. Parkinson, Senior Home Office Presenting Officer
Mumu (paragraph 320; Article 8; scope)
(1) The weight to be given to the Secretary of State's interests in conducting the proportionality balancing exercise under Article 8(2) of the ECHR is not to be automatically diminished by reference to the consideration –
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(a) that a person may be able to take advantage of an exception in paragraph 320(7C) in any future application for entry clearance; or, conversely
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(b) that there is a danger the person may be refused under paragraph 320(11) by reference to conduct that has led to his or her current application being refused under paragraph 320(7A).
The principle in Chikwamba [2008] UKHL 40 has no bearing on these scenarios.
(2) Although paragraph 320(7A) applies only where someone has been dishonest, the dishonesty does not need to be that of the applicant for entry clearance or leave to enter ( AA (Nigeria) [2010] EWCA Civ 773). For paragraph 320(11) to apply, however, it needs to be shown that the applicant (as opposed to someone acting without his or her knowledge) has contrived in a significant way to frustrate the intentions of the immigration rules.
The appellant is a citizen of Bangladesh whose claimed date of birth is 16 November 1987. On 27 August 2009, the appellant applied for entry clearance to the United Kingdom as the spouse of a person present and settled in this country. On 22 April 2010, the respondent refused the appellant's application. The reasons for the refusal were that the respondent noted that the appellant had previously applied for entry clearance to the United Kingdom as a visitor, which application had been refused and an appeal against that refusal subsequently withdrawn. In connection with that application, the appellant gave a date of birth of 16 November 1990, which was confirmed by her passport. In the present refusal, the respondent noted that the appellant claimed now to have lost that passport and that her date of birth was 16 November 1987. She submitted an education certificate with the new date of birth but, the respondent noted, this would have involved the appellant's taking her secondary school certificate examination at the age of 19, when that examination was usually taken at the age of 16. Moreover, according to a document verification report headed “For Disclosure”, examination of the education certificate and verification checks revealed that the certificate was not genuine.
In the light of these conclusions, the respondent refused the appellant's application on two bases. First, the respondent considered that, on the premise the appellant was born on 16 November 1990, she failed to satisfy the requirements of paragraph 277 of the Immigration Rules, which required her not to be under the age of 21 on the date of arrival in the United Kingdom. Secondly, the respondent refused the application by reference to paragraph 320(7A) of the Immigration Rules, which requires entry clearance to be refused:-
“(7A) 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 had not been disclosed, in relation to the application.”
The appellant appealed against the decision of the respondent. Her appeal was determined at North Shields on 14 December 2010 by a judge of the First-tier Tribunal. The judge concluded that the appellant had submitted a false education certificate, as contended by the respondent, and that the appellant had done so in order to make her appear older than her true age. The judge also noted that the appellant's previous application had given her date of birth as 16 November 1990.
The judge concluded that the appellant failed to satisfy the requirements of paragraph 277 of the Immigration Rules, by reason of her age, and that she had provided a false document in support of her application, thereby attracting refusal under paragraph 320(7A). Finally, the judge noted that although the appellant had not raised human rights in her grounds of appeal, these had been referred to by the respondent in the refusal decision. The judge found that there was no evidence before her to show that the appellant and her sponsor husband had established a family life together or that the marriage was genuine and subsisting. She dismissed the appeal.
Permission to appeal against the judge's decision was sought by the appellant, who contended that the judge had failed to appreciate that the burden of proving that paragraph 320(7A) applied in her case lay on the respondent and that the requirement to be 21 or over in order to satisfy paragraph 277 of the Rules was incompatible with the judgment of the Court of Appeal in Quila and Bibi [2010] EWCA Civ 1482.
Permission to appeal to the Upper Tribunal was granted by that Tribunal on 6 May 2011. Upper Tribunal Judge Storey considered that the First-tier Tribunal judge had been “clearly wrong about paragraph 277” and had arguably applied the wrong burden of proof in relation to paragraph 320(7A). In her response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent stated that she did not oppose the appellant's grounds, which alleged that the judge materially erred in law; but the respondent contended that the decision in the appeal should be re-made by dismissing it, as regards both paragraph 277 and paragraph 320(7A). On 2 November 2011, the Upper Tribunal decided, without a hearing pursuant to rule 34, to set aside the decision of the First-tier Tribunal judge. In doing so it noted that the age issue in paragraph 277 had now been finally settled against the respondent by the judgments of the Supreme Court in Quila and Bibi [2011] UKSC 45.
Applying the procedures set out in section 108 of the Nationality, Immigration and Asylum Act, 2002, in the absence of Mr Miah we probed the respondent's reasons for contending that the full document verification report contained material, the disclosure of which to the appellant would be contrary to the public interest. Having done so, and by agreement with Mr Parkinson, we informed Mr Miah that we could disclose to him the fact that the full document verification report made reference to the relevant officer of the respondent having carried out an online verification of the education certificate, which disclosed the appellant's age as being given as 16 November 1990. Indeed, amongst the materials which appear to have been disclosed to the appellant there is a printout from www.educationboardresults.gov.bd/arch /result.php, regarding the 2006 secondary school certificate examination in respect of the appellant. This bears the same names of the appellant as in the disputed certificate, together with the same father's name and school and roll number. However, it clearly gives the appellant's date of birth as 16–11–90.
Mr Miah submitted that his instructions were that, although there had been a previous application for entry clearance as a visitor, giving that date of birth, what the appellant said regarding her date of birth in the present application was “all true and no false documents have been used”.
We are in no doubt that the respondent has satisfied the burden of proof to show, on the balance of probabilities, that paragraph 320(7A) applies in the present case. In so finding, we have had regard to the totality of the evidence, except that the only matter to which we have had regard in the restricted document verification report is that concerning the online verification of the education certificate. We have not had regard to any other matter contained in that report, which has not been the subject of disclosure to the appellant.
It has not been disputed that the appellant made an application for entry clearance as a visitor, giving exactly the same date of birth as was disclosed on the online...
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