Upper Tribunal (Immigration and asylum chamber), 2013-06-10, OA/02033/2012

H- -V1

Appeal Numbers: OA/02033/2012




Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: OA/02033/2012





Heard at Field House

Determination Promulgated

On 21 May 2013

On 10 June 2013













For the Appellants: Ms A. Radford Counsel instructed by Maliks and Khan Solicitors

For the Respondent: Ms Z. Kiss, Home Office Presenting Officer


Introduction and history

  1. The appellants are citizens of Pakistan. The first appellant is the mother of the remaining appellants. They were born on 10 March 1984, 1 July 2005, 6 January 2007 and 20 October 2009, respectively.

  2. On 5 October 2011 they applied for entry clearance as the spouse and children of a person present and settled in the UK. The first appellant's application was refused under paragraphs 281(i)(a) and 320(7A) of HC 395 (as amended). The applications of the remaining appellants were correspondingly refused under paragraph 301(i).

  3. Their appeals came before First-tier Tribunal Judge Narayan who dismissed them. Permission to appeal having been granted, the appeals came before me.

  4. The basis of the refusal of these applications for entry clearance was that the first appellant had submitted a false marriage registration certificate, evidenced in a document verification report (“DVR”). This led to the refusal under paragraph 320(7A) and the conclusion that she is not validly married to the sponsor.

  5. The appellants had previously applied for entry clearance on the same basis in February 2010. Those applications were also refused, it having been said that a false marriage certificate was produced in support of the application. However, the appellants’ appeals against those decisions were allowed by Immigration Judge Keane in a determination promulgated on 7 September 2011. He also gave a direction that entry clearance be granted to the appellants.

  6. In refusing these present applications the Entry Clearance Officer (“ECO”) stated in relation to the first appellant that “the document submitted (marriage registration certificate) at the appeal [before Immigration Judge Keane] was not submitted at the time of application or appeal.” The reference to “appeal” I take to mean the notice of appeal, rather than the appeal hearing itself before Judge Keane, otherwise the comment makes no sense.

  7. In granting permission to appeal, Upper Tribunal Judge Jordan gave comprehensive directions which reflected the factual complexity of the appeals. The matter initially came before me on 26 February 2012 for mention only. On that date, as my subsequent directions make clear, the respondent’s representative did not have any case papers and was not therefore in a position to confirm compliance with Judge Jordan’s directions. Those directions were reiterated by me in writing on that date.

  8. The appeals next came on for hearing on 10 April 2013 when I heard submissions from the parties. At that hearing I decided that there was an error of law in the decision of First-tier judge Narayan which required the decision to be set aside. The appeal was not able to proceed to a conclusion on that date because the respondent’s representative sought time to consider the authorities referred to in the appellants’ skeleton argument. On that date I issued further directions which required the respondent to file and serve a written response to [6] of the appellant's skeleton argument.

  9. At the hearing on 21 May 2013, I was informed by Ms Kiss for the respondent that although she had recently had sight of a file for the respondent, that file had not found its way to the hearing. She was therefore without any respondent’s papers and relied on a copy bundle provided to her by the Tribunal. She also acknowledged that the direction requiring a response to the appellants’ skeleton argument had not been complied with.

  10. I shall refer to the parties’ submissions as necessary in the course of my analysis.

Error of law

  1. The error of law that I identified at the hearing on 10 April 2013 and which resulted in the decision being set aside was in terms of First-tier judge Narayan failing to have regard to the determination of Immigration Judge Keane who allowed the appeals in relation to the earlier applications for entry clearance.

  2. The appeals before the First-tier Tribunal were considered without a hearing, the appellants indicating that course on the notices of appeal. It appears that Judge Narayan did not have before him the determination of Immigration Judge Keane. However, it is plain that he was aware that there was a previous determination of appeals by these appellants because it is referred to in the notice of decision of the first appellant in this appeal. Judge Narayan also referred to the fact of the previous appeals in the determination when reciting the respondent’s reasons for refusal.

  3. At the hearing on 10 April 2013, Ms Kenny initially submitted that the issue of the previous determination of Judge Keane was not raised in the grounds of appeal to the First-tier Tribunal. However, as was established, that is not the case. The first appellant specifically referred to that appeal, mentioning the judge's name and the appeal reference number. She also referred to the marriage document that was in issue in that appeal.

  4. I am satisfied that Judge Narayan fell into error in determining these appeals without considering the determination of Judge Keane. That determination should have been the starting point in Judge Narayan’s deliberations given the reference to it in the notice of decision refusing the first appellant’s application, and the fact that it was referred to in the Entry Clearance Managers’ review. Although Judge Narayan was not provided with a copy of that determination, it would have been possible for him to obtain it. In the alternative, the respondent could have been directed to provide a copy.

  5. Ms Radford made the additional point that the respondent should have provided the previous determination in accordance with rule 13(1)(c) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, it being an unpublished document referred to in the notice of decision.

Re-making the decision

  1. The notices of decision do not raise any issues under the Immigration Rules other than those I have referred to. On no occasion in the course of this appeal has any representative for the respondent suggested that, for example issues of maintenance and accommodation were at large and I note that evidence in respect of those aspects of the Rules was put before the ECO.

  2. Ms Radford submitted that given that Judge Keane had given a direction that entry clearance be granted, the ECO was not entitled to refuse to grant entry clearance. She referred me to section 87(2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") which states that “A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).” Judge Keane made such a direction.

  3. As I understood Ms Kiss’ submission on that point it was that if I did not agree with her primary submission that the ECO was entitled to refuse the applications, then I should find that entry clearance should have been granted. However, she also suggested that the ECO would have been entitled to cancel the entry clearances immediately.

  4. In a sense, the application of s.87(2) and whether in consequence the decisions of the ECO were not in accordance with the law is dependant on the success of the appellants’ main argument which is that the issues in this appeal had already been determined by Judge Keane and there is nothing new to displace his conclusions. That is in any event the outcome sought on behalf of the appellants. A conclusion that the decisions are not in accordance with the law in consequence of s.87(2) is the appellants’ ‘fall back’ position. However, as is apparent from my analysis below, the outcome of these appeals goes further than that.

  5. It is as well to start with a statement of the obvious, namely that it is for the appellants to establish that they meet the requirements of the Rules, and that the standard they must meet is a balance of probabilities. The obvious also includes the requirement that it is for the respondent to establish on a balance of probabilities that paragraph 320(7A) applies and, for reasons that are elaborated on below, it is evident that the respondent has not discharged that burden to the required standard.

  6. In accordance with established principle, I take as the starting point the determination of Judge Keane. The applications he was dealing with were made in February 2010. The decisions to...

To continue reading