Upper Tribunal (Immigration and asylum chamber), 2018-06-07, IA/00012/2017
| Jurisdiction | UK Non-devolved |
| Date | 07 June 2018 |
| Published date | 02 July 2018 |
| Hearing Date | 24 April 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/00012/2017 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00012/2017
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision and Reasons Promulgated |
|
|
On 24 April 2018 |
On 07 June 2018 |
|
|
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE FROOM
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MAMIN AHAMMED
(NO ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Ms A Everett, Senior Home Office Presenting Officer
For the Respondent: Mr M West, Counsel
DECISION AND REASONS ON ERROR OF LAW
-
The appellant in this appeal is the Secretary of State for the Home Department and the respondent is Mr Ahammed, a citizen of Bangladesh born on 5 February 1984. However, it is more convenient to refer to the parties as they were before the First-tier Tribunal and therefore I shall refer from now on to Mr Ahammed as “the appellant” and to the Secretary of State as “the respondent”.
-
The appellant was granted leave to enter the UK on 10 October 2007 as a student and he was granted extensions of his leave in this capacity. In July 2014 he applied for further leave to remain as a Tier 2 (General) Migrant but his application was refused and he appealed. The appeal was heard by Judge of the First-tier Tribunal Eldridge sitting at Harmondsworth on 10 March 2016. The appellant was unrepresented and did not appear at the hearing. There was no attendance by the respondent either so the judge determined the appeal on the papers.
-
The judge noted that the respondent had refused the appellant’s application by reference to paragraph 322(1A) of the Immigration Rules. The rule provided for mandatory refusal where false representations had been made or false documents or information submitted or material facts had not been disclosed in relation to an application. The appellant had submitted a Certificate of Sponsorship (“COS”) purportedly issued by a company called Acorn Lodge (Bournemouth) Ltd. The respondent found that the certificate number on this document did not appear when cross-checked on their systems and the certificate number was in the wrong format for a COS reference number. However, the judge noted that no evidence to support this assertion had been provided by the respondent and therefore the burden on her to show that the document was false had not been discharged. He allowed the appeal but only on the basis that the matter remained before the Secretary of State to make a lawful decision.
-
The respondent proceeded to make the decision dated 8 December 2016. The brief reasons for refusal stated that the Acorn Lodge COS which the appellant had submitted was false and therefore the application was again refused under paragraph 322(1A). The appellant appealed again and this time he attended the hearing, which was held at Taylor House on 28 November 2017.
-
In her decision promulgated on 13 December 2017, Judge of the First-tier Tribunal Mensah allowed the appeal, again on the basis that it should be sent back to the respondent. She accepted as credible the evidence that the appellant had been deceived by individuals purporting to act as agents for Acorn Lodge. She found the document was false but that the appellant had been an innocent party. The appellant had obtained a fresh COS issued by a new sponsor, DM Digital Television, and he had attempted to vary his application prior to the first decision. However, the new COS had also become invalid because the firm’s sponsorship licence had been withdrawn. The judge commented that she could not understand why the respondent had not made a fresh decision on the application to vary, rather than simply re-make the original decision as it had been before Judge Eldridge. She reasoned that, in the circumstances that DM had lost its licence, it was incumbent on the respondent to give the appellant 60 days in which to find a new sponsor and to make another application. It was the failure of the respondent to do this which led her to conclude that the respondent had failed to act consistently with her own published policy and the principles of common law fairness.
-
The respondent sought permission to appeal against the decision of Judge Mensah on the ground that she had erred in her application of paragraph 322(1A) of the rules. The respondent had been bound to note that a false document had been produced with the application. It was explained by the Court of Appeal in AA (Nigeria) v SSHD [2010] EWCA Civ 773 that, even if the appellant had used the document in all innocence, it was still a false document for the purposes of the rule because it was a document which told a lie about itself. It followed that the judge was wrong to find that the appellant did not fall for refusal under paragraph 322(1A). There could be no breach of the common law duty of fairness which required the respondent to deviate from her own rule. Furthermore, the grounds argued that the appellant was unable to vary his application because, at that time, his original grant of leave having expired he only had leave by virtue of section 3C of the Immigration Act 1971.
-
Permission to appeal was granted by the First-tier Tribunal because it was arguable that Judge Mensah had erred in the way in which she applied paragraph 322(1A).
-
The appellant did not file a rule 24 response opposing the appeal.
-
I heard submissions from the representatives as to whether the decision of the First-tier Tribunal contains a material error of law. I shall refer to these in dealing with the issues as they arise.
-
As Judge Mensah noted, the appellant accepts that the Acorn Lodge COS was false. He had known this since around June 2014, which is why he obtained the COS from DM and attempted to vary his application in July 2014. Mr West criticized the respondent for not acknowledging this in the decisions. I pause to note that, had Judge Eldridge been informed by the appellant that he knew the COS was false, his decision was likely to have been different.
-
Paragraph 322(1A) reads as follows:
“322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave, except that only paragraphs (1A), (1B), (5), (5A), (9) and (10) shall apply in the case of an application made under paragraph 159I of these Rules.
Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused
(1) …
(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 party required in support of the application.”
-
In AA (Nigeria) the Court of Appeal discussed the meaning of “false” in the context of both representations and documents. In relation to the latter, it approved the respondent’s guidance which stated that applications should be refused if a false document was submitted even if the applicant was unaware it was false. At paragraph 67, Rix LJ explained:
“First, "false representation" is aligned in the rule with "false document". It is plain that a false document is one that tells a lie about itself. Of course it is possible for a person to make use of a false document (for instance a counterfeit currency note, but that example, used for its clarity, is rather distant from the context of this discussion) in total ignorance of its falsity and in perfect honesty. But the document itself is dishonest. It is highly likely therefore that where an applicant uses in all innocence a false document for the purpose of obtaining entry clearance, or leave to enter or to remain, it is because some other party, it might be a parent, or sponsor, or agent, has dishonestly promoted the use of that document. The response of a requirement of mandatory refusal is entirely understandable in such a situation. The mere fact that a dishonest document has been used for such an important application is understandably a sufficient reason for a mandatory refusal. That is why the rule expressly emphasises that it applies "whether or not to the applicant's knowledge".”
-
Mr West argued the submission of the false COI was not the submission of a false document. Rather it was a representation because the appellant had only been required to provide a certificate number. Therefore, the fact the representation was innocent meant the rule did not...
To continue reading
Request your trial