Upper Tribunal (Immigration and asylum chamber), 2013-07-01, VA/16664/2012
| Jurisdiction | UK Non-devolved |
| Status | Unreported |
| Date | 01 July 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | VA/16664/2012 |
Appeal Number:
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/16664/2012
THE IMMIGRATION ACTS
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Heard at : Field House |
Determination Promulgated |
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On : 26th June 2013 |
On : 1st July 2013 |
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………………………………… |
Before
Upper Tribunal Judge McKee
Between
purvi nilaykumar desai
Appellant
and
Entry Clearance Officer, Bombay
Respondent
Representation:
For the Appellant: Mr Zane Malik, instructed by Malik Law Chambers
For the Respondent: Miss Emily Martin of the Specialist Appeals Team
DETERMINATION AND REASONS
1. Mrs Purvi Desai is married with two children, and lives in Valsad, Gujarat. She must be very keen to come to the United Kingdom, for she has made four applications for a visa in quick succession. The first was refused on 2nd November 2011, because the evidence of the sponsor’s finances was unsatisfactory. The second application was refused on 17th February 2012, again because of concerns about the sponsor’s finances, but this time also because the photograph provided of the sponsor’s house was actually of a neighbour’s house. It was pointed out on this occasion that the sponsor was not related to Mrs Desai closely enough to bring her proposed trip into the category of a ‘family visit’, generating a full right of appeal. Any appeal would therefore be limited to the grounds set out at section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002. The decision was not appealed, but a third application was made, this time accompanied by a family tree purporting to show that Mrs Desai is the sister-in-law of the sponsor, Hetal Desai. In fact, the sponsor is the daughter of the brother of Mrs Desai’s mother-in-law. That relationship is not within the degrees of kinship listed in the Immigration Appeals (Family Visitor) Regulations 2003, which were (apparently ~ see below) in force at that time. A sister-in-law there is defined as the “sister of the applicant’s spouse”. So Mrs Desai fell to be treated as a ‘general visitor’ rather than a ‘family visitor’, with a limited right of appeal. On 3rd April 2012 this application too was refused because of unsatisfactory evidence of maintenance and accommodation.
2. With dogged persistence, Mrs Desai made a fourth application on 16th April 2012, calling in person at the British Deputy High Commission in Bombay. This time she brought a letter from her husband, Nilaykumar Desai, dated 5th April 2012, saying that he was “currently working for Pacard Associates with salary of 20,000/-Rs.” This was accompanied by a letter from Pacard Associates dated 1st September 2010, certifying that Mr Desai had been “working with our organization since January 2008, as a Service Engineer – UPS & Batteries. His last drawn salary is Rs 19,860 per month.” Payslips from Pacard Associates were also provided, for the months March through to August 2010.
3. To back this up, Mr Desai added two invoices and a ‘delivery challan’ concerning SMF batteries supplied by Pacard Power Products, a company with the same (very precise) address as Pacard Associates, namely A-225/1 Popular Plaza, 132 ft Ring Road, nr Shyamal Cross Roads, Satellite, Ahmedabad. Finally, Mr Desai left his business card. This has his name and mobile telephone number at the top left-hand corner, but the card is actually for the Jala-Sai Agency, with the strap line “All Types of Industrials and SMF Batteries.” This agency has an address in Navsari, but its Head Office is given as Pacard Associates, Popular Plaza, Satellite, Ahmedabad.
4. On 1st May 2012 a Document Verification Report was produced at the Deputy High Commission, in connexion with Pacard Power Products and the Jala-Sai Agency. A member of the Risk Assessment Unit says that he called a number (which he does not give, as this information is ‘sanitised’ under the Data Protection Act) but could not get connected. So he rang another number (‘sanitised’) and spoke to a Mr (‘sanitised’), the director of Pacard Power Products, who told him that Mr Nilay Desai was working as (‘sanitised’) on a commission basis, representing the Jala-Sai Agency.
5. This was not quite the information that caused the visa application to be refused on 7th May 2012, under paragraph 320(7A) of the Immigration Rules. “Our office has contacted Pacard Associates”, writes the Entry Clearance Officer, “who state that your husband left their employ two to three months previously.” This information seems to have been derived from a report made on 27th April 2012 by a member of the Document Verification Unit, who was investigating a letter from Pacard Associates of Ahmedabad. He says that he called the number and spoke to (’sanitised’), who told him that the applicant’s husband, (‘sanitised’), used to work for (‘sanitised’) but left the job 2-3 months back. The informant further stated that Mr (sanitised’) was in charge of Service & Marketing, South Gujarat. Then (‘sanitised’) reconfirmed that (‘sanitised’) used to work for them and left the job 2-3 months back.
6. At all events, Mrs Desai was told that she had made false representations, in submitting a letter from her husband claiming that he was currently employed by Pacard Associates. She was also reminded that, not being a ‘family visitor’, she could only appeal on the grounds given by section 84(1)(c) of the 2002 Act.
7. On 14th May 2012 Malik Law Chambers completed an IAFT-2 notice of appeal, ticking the boxes marked ‘family visit’ and ‘oral hearing’, and appending Grounds of Appeal which are vague, unfocused and rambling. They do not address the reason for refusal, i.e. the making of false representations, nor do they address the respondent’s contention that the application was not for a ‘family visit’ and so attracts no right of appeal save on the grounds of racial discrimination or breach of human rights. There is no mention of racial discrimination in the Grounds, and as for human rights, there is one sentence among the ten paragraphs of Grounds which baldly states that the ECO’s decision is “contrary to the provisions of the European Convention on Human Rights Act (sic).” No attempt is made to explain why this is so. That these Grounds have been appended to the Notice of Appeal without any attention being paid to what the appeal is actually about, save that it is a visit appeal, is confirmed by their referring to the appellant throughout as ‘he’.
8. An oral hearing having been requested (and apparently paid for), the appeal was listed before the First-tier Tribunal on 11th January 2013. Despite notice of the hearing having been sent to the sponsor and to Malik Law Chambers, there was no appearance by either on the day, and no explanation for their absence. The HOPO Unit informed Taylor House that no one was available to represent the ECO either, and so Judge Beach proceeded to determine the appeal in the absence of the parties. She agreed with the respondent that the appeal could only succeed on race discrimination or human rights grounds. No issue at all had been raised by the appellant on race discrimination, and as for human rights, the judge noted that no reasons had been given in the grounds of appeal as to why the refusal of a visit visa interfered with the appellant’s human rights.
9. Judge Beach might well have ended her determination at that point. The refusal of the visa application under one of the general grounds in Part 9 of the Immigration Rules had not been challenged in the Grounds of Appeal. It was not suggested in the Grounds that Mrs Desai had not made false representations, nor was any attempt made to show how a ‘mandatory refusal’ under rule 320(7A) was in breach of Mrs Desai’s human rights. Nevertheless, Judge Beach did consider whether the information obtained by the Deputy High Commission in respect of Mr Desai’s employment showed that false representations had been made. Contrary to what Mr Desai had written in his letter of 5th April 2012, he was not “currently working for Pacard Associates with salary of 20,000 Rs.” Rather, he had ceased working for them prior to his wife’s application, and was now working for Pacard Power Products on a commission basis. That, thought the judge, was a material misrepresentation – although one may note that rule 320(7A) does not actually require a false representation to be material.
10. The appeal was of course dismissed, and that might have seemed the end of the matter. Permission to appeal to the Upper Tribunal was granted, however, on the strength of three grounds settled by Mr Malik of counsel, who withdrew the second of them when the appeal came before me today. This ground asserted that the ECO took no point as to jurisdiction during the appeal proceedings, and so it was not open to the First-tier Tribunal to take it of its own motion. Mr Malik withdrew this ground because of the recent judgment in Pavandeep Virk [2013] EWCA Civ 652, holding that it is open to the Upper Tribunal to query whether there is jurisdiction to entertain an appeal, even if the appeal has proceeded through the First-tier Tribunal without anyone noticing that there might be no jurisdiction to hear it. It seems to me that this ground was in any event misconceived, because the jurisdiction point was taken by the ECO, who pointed out in the notice of decision that...
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