Upper Tribunal (Immigration and asylum chamber), 2022-04-04, [2022] UKUT 00133 (IAC) (R (on the application of Ashrafuzzaman) v Entry Clearance Officer (precedent fact, general grounds refusal))
| Judge | UPPER TRIBUNAL JUDGE BLUM, UPPER TRIBUNAL JUDGE McWILLIAM |
| Status | Reported |
| Published date | 13 May 2022 |
| Date | 04 April 2022 |
| Hearing Date | 12 January 2022 |
| Appeal Number | [2022] UKUT 00133 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | precedent fact, general grounds refusal |
UT Neutral citation number: [2022] UKUT 00133 (IAC)
R (on the application of Ashrafuzzaman) v Entry Clearance Officer
(precedent fact; general grounds refusal)
Upper Tribunal
(Immigration and Asylum Chamber)
Heard remotely at Field House
THE IMMIGRATION ACTS
Heard on 12 January 2022
Promulgated on 4 April 2022
Before
UPPER TRIBUNAL JUDGE BLUM
UPPER TRIBUNAL JUDGE McWILLIAM
Between
THE QUEEN
on the Application of
ASHRAFUZZAMAN
(ANONYMITY DIRECTION not made)
Applicant
and
ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the applicant: Mr P Turner, counsel instructed by Hubers Law
For the respondent: Ms J Anderson, counsel instructed by the Government Legal Department
The issue of dishonesty in a judicial review challenging a decision taken under paragraph 320(7A) of the Immigration Rules is not one of precedent fact.
In a judicial review challenge the jurisdiction of the Tribunal to determine an issue of dishonesty for itself arising from a decision taken under the general grounds of refusal in the Immigration Rules is dependent on the engagement of an ECHR right.
JUDGMENT
Background
-
The applicant, a male national of Bangladesh born on 27 September 1997, challenges:
-
the respondent’s decision made on 6 February 2020 refusing him entry clearance as a Tier 4 (Student) Migrant (“the 1st decision”), and
-
the Administrative Review decision dated 14 February 2020 upholding the 1st decision (“the 2nd decision”).
-
On 26 December 2019 the applicant applied for entry clearance as a Tier 4 (General) Student. The online application form included a section headed ‘Family in the UK’. Under this heading the applicant was asked,
“Do you have any family in the UK?”
-
To this question the applicant answered “No”.
-
A declaration at the end of the online application form stated that, by sending the application, the applicant confirmed to the best of his knowledge and belief that the information relating to the application and the supporting evidence was correct.
-
The applicant underwent an entry clearance interview on 31 December 2019. This interview was conducted in English. There was no indication on the face of the interview record that the applicant had any difficulties in understanding the questions asked or in giving his answers. At question 17 of the interview the applicant was asked,
“Do you have any friends or family in the UK?”
-
To this question the applicant answered,
“No family. No friends.”
-
His application was granted on 24 January 2020. On 31 January 2020 the applicant was asked questions by an Immigration Liaison Officer at Sylhet airport prior to boarding his plane to the UK. There is no contemporaneous record of the conversation and the details of the applicant’s conversation with the Immigration Liaison Officer remain vague. There is however no dispute that the applicant informed the Immigration Liaison Officer that he had a sister living in the UK. The Immigration Liaison Officer had doubts concerning the applicant’s credibility and revoked the grant of entry clearance.
-
The applicant was invited to a 2nd interview on 6 February 2020. This interview was also conducted in English. The applicant was informed that he had been denied boarding on 31 January 2020 because of the Immigration Liaising Officer’s concerns regarding his credibility and whether he was a genuine student and genuinely intended to leave the UK at the end of his course. The applicant was asked whether he had any family in the UK (questions 9 and 11). The applicant initially answered “no”, but when asked “are you sure?” he stated,
“Actually urm last interview the last embassy interview was about my university related but in Heathrow one of my older sisters she live there.”
-
The applicant then confirmed that an older sister planned to pick him up from Heathrow on his arrival. At question 14 the applicant was told that one of the reasons he had been denied boarding was because he informed the Immigration Liaison Officer that he had a sister in the UK. This was contrary to the information in his application form and in his 1st interview, and affected his credibility. To this the applicant responded,
“That was a misunderstanding at the time because I was living in Southampton I thought it was Southampton my one sister live in UK near Heathrow and my one friend got to UK so I told her that recently my one friend.”
-
At question 15 the interviewer asked,
“But the question stated in your last interview was that “do you have any family or friends in the UK” and the same on your visa application form, it didn’t specify whether your family or friends lived in Southampton so can you tell me why you didn’t declare this and how this was a misunderstanding?”
-
The applicant replied,
“English is not my first language so it was a misunderstanding so I thought it meant someone lived in Southampton but one my sister in the airport she lives near Heathrow and recently one.”
-
Later in his 2nd interview the applicant stated that his sister would arrange “all things” such as opening a bank account for him. The applicant confirmed that he had not booked accommodation for himself when he was due to fly on 31 January 2020 because he had only very recently received his visa and the date for his enrolment had been extended. The applicant also stated that his sister would pick him up and they would go to the university in Southampton and that “she will manage all things.” The applicant planned to stay at his sister’s house over the weekend and would then manage his accommodation. At the end of the interview the applicant confirmed that he understood all the questions and that he was still feeling fit and well.
-
On the same day the applicant’s application for entry clearance was refused. Having set out the relevant questions from both of the applicant’s interviews and the information provided in his application form, the respondent refused the applicant’s application under paragraph 320(7A) of the Immigration Rules. The respondent noted that the applicant was given an opportunity to disclose whether he had family in the UK and that he initially disclosed that he did not, but that on further probing he accepted that he had a sister here. The respondent acknowledged the applicant’s explanation that he had “misunderstood the question” and thought that it related to whether he had any family in Southampton, but it was noted that the application form and the interview questions referred to whether the applicant had family in the UK in general. The respondent additionally noted the applicant’s claim that there had been a misunderstanding because English was not his first language. The respondent observed that the applicant intended to study a course that would be delivered in English and, at the end of his 1st interview, he indicated that he had understood all the questions asked. The respondent was not therefore satisfied that the was any misunderstanding. The respondent found that the applicant used deception as he failed to declare a material fact on his application form and at the interview.
-
The respondent stated,
“At the end of your previous interview on 31/12/2019 when you were asked if you understood all the questions you said “yes” I am therefore satisfied that it was not a misunderstanding and I am satisfied that you have intended to use deception as you failed to declare a material fact on your visa application form and at your interview.”
-
Having found that the applicant failed to declare a material fact, the respondent doubted his intentions in wishing to travel to the UK. The applicant was informed that he may have future applications refused under paragraph 320(7B) for a period of up to 10 years. The respondent then stated,
“At the end of the interview with me on 06/02/2020 you confirmed that you understood all the questions, that you were happy with the conduct of interview [sic] and that you are still feeling fit and well and you did not any [sic] other information to add. I am therefore satisfied that you were given an opportunity to answer all the questions to the best of your ability.”
-
The applicant applied for Administrative Review of the 1st decision. In the section of the Administrative Review form where the applicant was asked to explain why he thought that the 1st decision is wrong he stated, with respect to the manner in which he completed his visa application form,
“However, on the application form the question is [sic] if I have family in the UK and in the guideline it says that in [sic] family it includes immediate family such as spouse, civil partner, parents or children, grandparents or grandchildren, spouse or civil partner’s family, children spouse, civil partner or partner, my partner if I have lived with them for 2 out of the last 3 years. This guideline clearly shows that there is no mention of siblings and it is not considered to be family.”
-
The applicant made the same point in relation to his interviews. He also indicated that he did not live with his sister, that she lived with her husband and children, and that she was not considered to be part of “the family.” The applicant stated,
“In my interview at the airport, I was asked if I have...
To continue reading
Request your trial