Upper Tribunal
(Immigration and Asylum Chamber)
SD (paragraph 320(11): Forgery)
India [2010] UKUT 276 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House
On 29
June 2010
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Before
Mr C M G Ockelton, Vice
President
Senior Immigration Judge Roberts
Between
sd
Appellant
and
ENTRY CLEARANCE OFFICER, CHENNAI
Respondent
Representation:
For the Appellant: Mr
Karim, instructed by MA Consultants
For the Respondent: Mr
Nate, Home Office Presenting Officer
If an
application for entry clearance is refused on the ground of forged documents in
a previous application, the Entry Clearance Officer has the burden of proof. If
there was (in relation to the previous application) no judicial determination
of the issue, and no relevant admission, there will need to be evidence to
establish that the documents used in the previous application were forged.
DETERMINATION AND REASONS
- The Appellant is a national of India. She appealed to the First-Tier Tribunal, or the Asylum
and Immigration Tribunal as it then was, against the decision of the
Respondent Entry Clearance Officer on 4 June 2009 refusing her application for entry
clearance as the spouse of the sponsor. The Immigration Judge dismissed
her appeal, but she succeeded in her application for permission to appeal
to the Upper Tribunal.
- The Appellant’s application for entry
clearance was not her first. A previous application had been refused on 5 December 2008. The ground for refusal in that case was that false bank
statements had been submitted in support of the application. There was no
appeal against that decision but instead a new application was made, which
was refused as we have indicated.
- The Entry Clearance Officer in refusing
the application indicated that he was satisfied that the parties were
formally married to one another. He reached no clear conclusion on the
other requirements of paragraph 281 of the Statement of Changes in
Immigration Rules, HC 395, but concluded his notice of refusal with
the following words:
“At section 2.6 of your application form you have clearly
stated that the passport provided for this application is your first passport.
However I am aware that you were recently refused entry clearance with a
different passport. You have offered no credible explanation as to why you have
not declared your previous passport. I am therefore satisfied that you have
made a false declaration on your application form.
I further note that your previous application for entry
clearance was refused, as the Entry Clearance Officer was satisfied that bank
documents provided by you were not genuine. The submission of such documents
seriously damages the credibility of your application. Given that you have
today made a false declaration on your application form and that you have previously
submitted forged documents I am satisfied that you have previously contrived in
a significant way to frustrate the intentions of the Immigration Rules. Any
future application will automatically be refused for a period of 10 years since
your last application, unless a concession applies.
I therefore refuse your application.”
- That refusal was perceived by those
representing the Appellant as principally under paragraph 320(11) of the
Immigration Rules which permit entry clearance to be refused (the precise
phrase is “grounds on which entry clearance or leave to enter the United Kingdom should normally be refused”) as a
matter of the Entry Clearance Officer’s discretion:
“where the applicant has previously contrived in a significant
way to frustrate the intentions of these Rules. Guidance will be published
giving examples of circumstances in which an applicant who has previously
overstayed, breached a condition attached to his leave, been an Illegal Entrant
or used Deception in an application for entry clearance, leave to enter or
remain (whether successful or not) is likely to be considered as having
contrived in a significant way to frustrate the intentions of these Rules.”
- In presenting the case before the
Immigration Judge those representing the Appellant recognised that it
would not be sufficient to deal with paragraph 320 but that it would also
be necessary to show that the Appellant met at the date of the decision
the substantive requirements of paragraph 281. The Immigration Judge
accordingly heard oral evidence from the sponsor and considered written
evidence relating to the sponsor’s circumstances and income and to his
marriage. There was also a witness statement from the Appellant herself.
- It is perhaps not surprising, in view
of the way in which the case was evidently put before the Immigration
Judge, that he devoted a considerable amount of attention to paragraph
320(11). He concluded that the Appellant had indeed submitted false
documents on the previous occasion, and that the discretion implicit in
paragraph 320(11) was rightly exercised against her. He went on to
consider the substantive requirements of paragraph 281, and concluded that
he was not satisfied that at the relevant date the relationship between
the Appellant and the sponsor was correctly described a subsisting
marriage, or that the Appellant could meet the maintenance and
accommodation requirements of that paragraph. He accordingly dismissed the
appeal.
- The grounds of appeal to the Upper
Tribunal raise two discrete matters. The first is that the Immigration
Judge erred in law in his conclusions on the evidence relating to the
substantive requirements of paragraph 281. As presented before us today by
Mr Karim, the arguments are that the Immigration Judge firstly failed to
make findings on relevant issues on which he was obliged to make findings,
and secondly allowed his opinion on the matters relating to paragraph 320
wrongly to infect his views as to the credibility of the sponsor who gave
oral evidence before him.
- The second ground is that paragraph
320(11) was wrongly found by the Immigration Judge to apply to this appeal
in any event. We deal with that point first.
Paragraph
320(11)
- The substance of paragraph 320(11)
depends on an applicant’s previous history. The reference to a previous
application, or to contriving in a significant way to frustrate the
intentions of the rules, necessarily refers to an event other than one
connected with the present application. In this appeal the previous event
referred to was by way of an assertion that forged documents had been
presented in the earlier application. Mr Nate, who represents the Entry
Clearance Officer before us, accepts, and in our view entirely properly
accepts, that the burden of proof that documents are forged rests on the
Entry Clearance Officer. If there had been an appeal against the earlier
refusal, there is no doubt at all that it would have been for the Entry
Clearance Officer to establish, if he asserted it, that the bank
statements were forged. But there was no appeal: and, as a result, the
Entry Clearance Officer was never put to proof on that matter, and there
was no judicial decision on it.
- That history does not affect the burden
of proof in relation to this appeal. If it is to be asserted in an appeal
relating to a second application that documents in relation to a previous
application were forged, the burden of proof remains on the Entry
Clearance Officer. Of course, if there has previously been a judicial
decision, or an admission, of forgery, the burden may be readily discharged.
But in the present case there was, as has been accepted, no direct
evidence that the documents were forged. All that there was before the
Immigration Judge was the Entry Clearance Officer’s assertion that a
previous application had been refused for that reason. In these
circumstances, that is to say where there is no evidence, the person with
the burden of proof loses on that point. It is thus clear that the
Immigration Judge was not lawfully in a position to find that there had
been forged documents submitted on the previous application. His finding
that paragraph 320(11) applied to the case was an error in law. There was
simply no evidence upon which he could make that finding.
- We turn then to the substantive issues.
The Immigration Judge records some of the oral evidence that he heard in
his determination. It is no doubt unfortunate that when assessing the
evidence as a whole he refers to there having been “no evidence” of issues
on which he had indisputably heard oral evidence. What he clearly meant
was that he did not believe the oral evidence that he had heard and that
there was no written evidence supporting it. The vagueness or imprecision
of his terminology is certainly regrettable. But the burden of Mr Karim’s
submission is that the Immigration Judge’s finding on paragraph 320(11)
wrongly infected his judgement as to the credibility of the sponsor. Mr Karim’s
submission is that, having found, as he did, that the sponsor and the
Appellant together had in the terms of paragraph 320(11) contrived in a
significant way to frustrate the intentions of the Rules, he could not
come in a proper way to the assessment of the credibility of the oral
evidence before him, because his conclusion on paragraph 320(11) was
itself flawed.
- That is a submission that we do not
accept. Although as we have indicated it was for the Entry Clearance
Officer to establish that the documents were forged if he relied on that
assertion, it was for the Immigration Judge to reach a conclusion about
the credibility of the evidence before him. That is a different issue,
even if the evidence related to the same fact. The Immigration Judge heard
what the sponsor had to say about the previous application, as well as on
some other matters which we shall come to. Whether or not he was entitled
to find that the documents were forged (and we have concluded that he was
not entitled so to find), he was entitled to reach a conclusion as to
whether the sponsor, who was giving evidence before him was a person who
was being frank and telling the truth. It is quite clear from his
determination that, for reasons given in it, he did not conclude that the
sponsor was being frank and telling the truth, and it is that, rather than
his flawed conclusion on paragraph 320(11) which informs (rather than infects)
his conclusions on the evidence as a whole. If the case had turned on it,
therefore, we should have concluded that his assessment of the evidence
relating to the substantive requirements of paragraph 281 shows no
material error of law.
- It is true, as we have indicated, that
his language is unfortunately imprecise in some areas, but it is
undoubtedly the case that the sponsor’s evidence as to contact with the
Appellant herself was very incomplete in areas where one might have
expected formal documentary support. For example, as we noted during the
course of the hearing, the Immigration Judge points out that although the
sponsor said that he had been to India some six or seven months before the
hearing, and had spent two to two-and-a-half weeks there, he did not at
the hearing provide his passport in support of that assertion; there was
no evidence that any time he had spent in India had been spent with the
Appellant or pursuing married life; and in addition there was, as it
happens, before the Immigration Judge, a letter dated six or seven months
before the hearing in which the sponsor said that he had not been able to
go to India or to take any leave from his job in order to do so.
- So far as maintenance and accommodation
are concerned, what was before the Immigration Judge was a selection of
payslips, an employer’s letter, and part of a lease. We say “part of a
lease” because the Immigration Judge had, as we understand it, pages 1, 2,
3 and 7 of that document, thus omitting many of the conditions under which
the lease was granted. The lease was for premises in Hounslow at £925 per
month, payable by way of rent, apparently jointly as well as individually
by the two individuals named as tenant, one of whom is the sponsor. Mr Karim
indicated that the Immigration Judge was not told anything about any
amounts payable by way of council tax. Mr Karim asserted to us that each
of the tenants had to pay only half the rent. That appears to be contrary
to what the agreement says. So far as income is concerned, the Immigration
Judge’s view was that he was not prepared to believe the sponsor for the
reasons that he had given in general, and that he was therefore not
prepared to accept that the documentary evidence before him showed that
the sponsor could meet, for the purposes of himself and the Appellant, the
maintenance requirements of the rules.
- The documents as we have looked at them
this morning clearly do not tell a consistent story. We are concerned with
any error of law by the Immigration Judge before we attempt to make any
decision ourselves. Suffice it to say that looking at the evidence as a
whole, we would find it extraordinarily difficult to identify any good
reason why it should be said that the Immigration Judge was not entitled
to conclude, as he did, that the evidence simply did not establish
substantive compliance with paragraph 281.
Paragraph
320(7A)
- As we have hinted, however, the appeal
does not in the end turn on that point. The Entry Clearance Officer
refused on two specific grounds. Only one of them was that there had been
deception in a previous application. The other ground was a false
statement made in the present application. In question 2.6 of the
application form, the Appellant, asked the question: “Is this your first
passport?” replied: “Yes”. There is no doubt that that statement was
untrue. Indeed, as we understand it, although the Entry Clearance Officer
noted that there was no explanation of the untruth of that statement,
largely no doubt because he had not sought any explanation, the position
before the Immigration Judge was that it was accepted that that statement
was not a true statement. Various explanations for it were given, but it
is notable that the Immigration Judge, having listened to the oral
evidence before him, did not accept the truth of the explanations given.
- Explanations are, however, not entirely
relevant in the circumstances. It might be possible to show by way of
explanation that what appeared to be a false statement was in fact a true
one, but the position here is that the statement was false. Paragraph
320(7A) is in a section of paragraph 320 headed “Grounds on which entry
clearance or leave to enter the United
Kingdom is to be
refused”. There is no discretion. Paragraph 320(7A) gives the following
basis for refusal:
“Where false representations have been made or false documents
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”.
- This is a case in which a false
representation had been made in relation to the application. In the
application form the Appellant falsely stated that passport was her first
passport. It was therefore a case which fell for mandatory refusal. As we
pointed out to Mr Karim in the course of argument, if the paragraph
relating to paragraph 320(11) of the Immigration Rules had been deleted
from the notice of refusal, the last sentence refusing the application
would have necessarily followed from the previous paragraph dealing with
the false representation.
- The Immigration Judge erred in his
conclusions relating to paragraph 320(11) but we are not persuaded that he
erred in law in finding that the substantive requirements of paragraph 281
were not complied with. In any event, however, he was obliged to dismiss
the appeal as the Entry Clearance Officer was obliged to refuse the
application, because this was a case where paragraph 320(7A) made refusal
of the application mandatory. Despite having found an error of law by the
Immigration Judge, therefore, we dismiss the appeal to this Tribunal.
C M G OCKELTON
Vice President of the Upper Tribunal,
Immigration and Asylum Chamber
