Sumon Chanda v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Floyd |
| Judgment Date | 31 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2424 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C7/2017/1263 & A |
| Date | 31 October 2018 |
[2018] EWCA Civ 2424
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Upper Tribunal (Immigration and Asylum Chamber)
UTJ Clive Lane
IA/29599/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
and
Lord Justice Coulson
Case No: C7/2017/1263 & A
M. M. Hossain (instructed by Direct Access) for the Appellant
Ben Keith (instructed by Government Legal Department) for the Respondent
Hearing date: Tuesday 23rd October 2018
Judgment Approved
Introduction
This appeal raises an issue about paragraph 322(1A) of the Immigration Rules (concerned with false representations or false documents or information) and the separate considerations that arise out of a false document, on the one hand, and a finding of deception on the part of the applicant, on the other.
The Factual Background
On 16 October 2008, the appellant was granted leave to enter the UK as a student. That leave was extended until 15 October 2011. On 12 October 2011, he was granted leave to remain as Tier 1 (Post Study Migrant) until 12 October 2013 and, on 15 November 2013, was granted leave to remain as a Tier 4 (general) student until 9 May 2015.
On 19 January 2015, the appellant applied for further leave to remain as a Tier 2 Skilled Worker migrant. This application relied, amongst other things, on a Degree Certificate, purportedly issued by University College London, and dated 26 July 2011. This referred to the appellant “having completed the approved course of study and passed the examinations as an Internal Student in the Faculty of Science”. The degree was a Bachelor of Arts in Business Management.
The respondent asked the University of London to verify the certificate. In a letter dated 20 March 2015 they responded:
“I would like to inform you of the copy of Certificate and Transcripts you have provided were not produced by the University of London Central Offices and bear a number of discrepancies when compared to authentic documents. I can therefore confirm that the documents are not genuine.
We would like also to confirm that we cannot trace the above named individual as having graduated from the University of London.”
As a result of this information, on 14 August 2015, the respondent refused the appellant's application for further leave to remain. The general grounds/reasons for refusal were stated as follows:
“As part of your application, you submitted a degree certificate and transcript for Bachelor of Arts in Business Management bearing your name which was purportedly issued by the University of London… I am satisfied that the documents are false because a representative of the University of London confirmed via email on 20 March 2015 that they had no records of you ever having graduated from the University of London and that the degree certificate in question was also false.
As false documents have been submitted in relation to your application, it is refused under paragraph 3222(1A) of the Immigration Rules.
For the above reasons, I am also satisfied that you have used deception in this application.
This means that any future applications for entry clearance or leave to enter the UK you make will be refused under paragraph 320(7B) of the Immigration Rules (unless it would breach your rights under the Human Rights Act 1998 or the Refugee Convention)…”
Accordingly, the respondent relied on two separate grounds when refusing leave to remain: the false document, and the additional finding of deception.
The appellant appealed against that decision to the First Tier Tribunal (“FTT”). The hearing took place on 14 April 2016, although the appellant did not attend due to ill-health. By a decision dated 19 April, the FTT rejected the appellant's appeal. The critical findings were as follows:
“6. I am satisfied that on the basis of the evidence before me that the Respondent can discharge the burden of proof upon him. I find that it is more probable than not that the appellant when applying for further leave to remain in the United Kingdom produced false documents claiming them to be genuine documents from the University of London. The submissions from the appellant's representative simply denied that that is the case. He has produced no evidence whatsoever to counter the allegation made by the respondent.
7. The appellant cannot discharge the burden of proof upon him and satisfy me that he was entitled to the leave to remain in the United Kingdom under the Immigration Rules. The respondent can discharge the burden of proof upon him and satisfy me on the balance of probability that the appellant produced false documents in support of his application.”
The appellant appealed again to the Upper Tribunal (“UT”). The hearing took place on 22 December 2016 and the appellant gave oral evidence. The decision was dated 30 January 2017. The relevant part of the judgment was at paragraph 6:
“I consider that the issue in this appeal has been correctly addressed by Mr Tufan on behalf of the Secretary of State in the Rule 24 statement of 3 November 2016. It is clear that Judge Davies believed that the initial burden of proof rested upon the respondent who was making the allegation that the appellant had produced a false document. But that allegation required evidence to support it and the judge found (correctly in law) that the letter from the transcripts office constituted such evidence. Thereafter, it was for the appellant to discharge the burden of proving that he had obtained a degree from the University of London. The appellant acknowledges before the Upper Tribunal that he has not produced such evidence; he simply told me that he had no reason to believe that the certificate which he had obtained was false. Further, the appellant did not attend the First-tier Tribunal hearing; insofar as the appellant has been able to offer any explanation, the Upper Tribunal has received more evidence than Judge Davies who was obliged to determine the appeal in the First-tier Tribunal having only received submissions and the documentary evidence adduced by the Secretary of State. I cannot see that Judge Davies has erred in his analysis and, even if he has done so, then, if I were to remake the decision in the Upper Tribunal, I would dismiss the appellant's appeal. The Secretary of State has made an allegation and has supported it with evidence which the appellant has not attempted to contradict. In the circumstances, the appeal is dismissed.”
Although the UT refused the application for permission to appeal again, permission to appeal was granted by the Court of Appeal on 16 February 2018.
The Law
Paragraph 322(1A) of the Immigration Rules reads as follows:
“ Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused
(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 in order to obtain documents from the Secretary of State or a third part required in support of the application.”
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...it was that you understood the information. This is confirmed in the judgement Chanda v Secretary of State for the Home Department [2018] EWCA Civ 2424. Although the application in that case was for leave to remain as a Skilled Worker, it is a useful example of the distinction: the Applican......
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