(Immigration and Asylum Chamber) Appeal Number: VA/16260/2012
THE IMMIGRATION ACTS
Heard at Field House
On 20 September 2013
On 15 October 2013
UPPER TRIBUNAL JUDGE LATTER
SESAN MOHAMMED ALIYU
ENTRY CLEARANCE OFFICER, ABUJA
For the Appellant: No appearance
For the Respondent: Mr S Walker, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal against a decision of the First-tier Tribunal dismissing an appeal by the appellant against the respondent’s decision made on 15 May 2012 refusing his application for entry clearance as a family visitor. Permission to appeal has been granted by the First-tier Tribunal.
2. The appellant is a citizen of Nigeria born on 22 November 1980. On 27 April 2012 he applied for entry clearance to attend his cousin’s wedding saying that he intended to stay in the UK for ten days. He said that he was both employed and self-employed. He gave his present work as a site engineer with Telix Technologies and also said that he had income from various shares and held landed property and shares in various companies.
3. When considering the various documents submitted in support of the application, the respondent noted that although the appellant had said that Telix Technologies was his company, he had failed to supply any independent documents to confirm that it was owned by him. The company bank statement failed to show a turnover which would allow him to draw the level of income he had stated. He also noted that 5.9 million Naira (£23,600) was placed in his bank account on 26 March 2012 four days before the generation of that document. This was in the form of a cash deposit and did not indicate its source. His own personal bank statement which apparently showed salary deposits did not correspond with any transfers out of the company account. For these reasons the respondent was not satisfied that the appellant had shown sufficiently strong family, social or economic ties to Nigeria or that he had sufficient incentive to leave the UK at the end of his proposed visit.
4. The appellant appealed against that decision and in the light of the further documents submitted with the notice of appeal the decision was reviewed. It was noted that the appellant had said that he was both an employee and the owner of the same company. In his grounds the appellant claimed that, as the company in question was not a limited one, the Memorandum of Articles and Association were not required to confirm ownership. However, the respondent said that such documents would identify the owners of a business in Nigeria whether limited or otherwise. It was noted that the appellant had chosen not to submit these documents with his appeal. It was further asserted that the respondent had only considered one of the company bank accounts when reaching the previous decision. It was accepted that a copy of a company account which did appear to show the salary being paid to the appellant had been submitted in support of the appeal but it was a photocopy and in these circumstances the respondent was unable to determine whether amendments had been made to it or otherwise to verify its authenticity. The appellant had also failed to explain why he would be the owner of the company and a salary receiving employee. The officer carrying out the review had tried to contact the appellant’s sponsor in the UK on several occasions and noted that the sponsor had been associated with numerous applications all for family visitors. He had proved to be uncontactable in each case to confirm the relationships or the offer to maintain and accommodate the applicants.
The Hearing before the First-tier Tribunal
5. No application was made for a hearing and the appeal was accordingly allocated for a decision on the documentary evidence. The judge noted the issues which had concerned the respondent about the appellant’s financial circumstances and then reminded herself that there was no right of appeal in a visit appeal unless the application was made for the purpose of visiting a family member as defined in the relevant regulations.
6. The judge commented that, although the appellant referred to attending his cousin’s wedding and being sponsored by another cousin, no further details were provided. She referred to the fact that his sponsor was said to have a history of sponsoring family visitors and being uncontactable. She commented that the term “cousin” was often loosely used and did not necessarily mean that there was a close blood relationship and given that the appellant had elected to have a paper hearing, the sponsor had been unable to give evidence or resolve that relationship issue. In the absence of such evidence she found that the appellant had failed to show that the relationship was within the range of relationships detailed in the regulations and the appellant was therefore not entitled to a right of appeal. The appeal was therefore dismissed for want of jurisdiction.
7. The appellant sought permission to appeal on the basis that the issue of the relationship was not one of the issues in dispute between the parties and that the appellant’s notice and grounds of appeal against the respondent’s decision had not been properly considered.
The Grounds of Appeal
8. Permission to appeal was granted for the following reasons:
“3…It does seem from the respondent’s refusal decision that the issue of relationship had not been raised. The judge’s decision appears to be significantly influenced by the lack of evidence in respect of the relationship between the appellant and sponsor such that she dismissed the appeal for want of jurisdiction (strictly as the judge found that there was a want of jurisdiction, she should not have gone on to dismiss it because there was no appeal before her). This matter came before the judge as a paper case and as the judge had concerns about the relationship it may have been prudent to give the appellant, in the interests of justice, an opportunity to deal with the issue and submit a reply. Perhaps that is all the more important in a paper case where there is no sponsor before the Tribunal.
4. Accordingly, it may well be argued that the judge had materially erred in law. However, the appellant must bear in mind that the burden of proof rests on him to establish the relationship with the sponsor.”
9. This appeal was first listed for hearing on 18 June 2013. At that hearing the Tribunal raised the issue of whether there was evidence beyond the assertion in the decision letter to support the contention that the appellant’s sponsor had sponsored a number of other applicants. The Presenting Officer subsequently made enquiries and by letter dated 18 June 2013 enclosed records in relation to five separate applications where this sponsor was identified as sponsoring a family visit. It is noted that not one of the applicants is the mother or brother of the appellant but they are all family visitors and four of the five are said to be coming to attend the wedding of a relative but on different dates and all would appear to have different addresses in Nigeria. This evidence has been served on the appellant together with the notice of this hearing. Further evidence has now been received on 20 August 2013 in the form of a statement from the sponsor dated 1 July 2013.
The Error of Law
10. The first issue I must decide is whether the First-tier Tribunal erred in law by finding that the appellant had failed to show that he and his sponsor were related as claimed and in the light of that finding that there was no right of appeal and therefore no valid appeal. The appellant’s application was refused by the respondent on the basis that he could not meet the requirements of para 41(i) and (ii), that he was genuinely seeking entry as a visitor and that he intended to leave at the end of his proposed visit. No issue was taken in the refusal notice on the issue of whether the appellant was related to the sponsor. When the decision was reviewed in the light of the further evidence submitted with the grounds of appeal an issue was raised about the inability to contact the sponsor and the fact that he was associated with a number of applications for family visits and in each case he had proved to be uncontactable to confirm relationships or offers to maintain and accommodate those he was sponsoring. I am not satisfied that these further concerns were sufficient to put in issue the relationship between the appellant and the sponsor without that being more clearly stated in the review decision which simply said that the decision was maintained.
11. It was open to the First-tier Tribunal judge to take the issue of relationship for herself but as it had not been clearly put in issue in the decision letter, the judge should have given the appellant the opportunity of dealing with that issue and submitting any further evidence. In these circumstances, I am satisfied that there has been a procedural irregularity causing unfairness and the First-tier Tribunal decision is set aside.
Re-making the Decision
12. I am satisfied that the proper course is for me to proceed to re-make the decision on the basis of the documentary evidence. The decision of the First-tier Tribunal was made without a hearing and there has been no indication from the appellant that he seeks a hearing of this appeal. He has been served with the notice of hearing and there has been no attendance on his behalf or by the sponsor. The onus is on the appellant to show on the balance of probabilities that he can meet the requirements of the rules.
13. The initial decision made by the respondent relied on a number of reasons for finding that the appellant had failed to show sufficiently strong family, social or economic ties to Nigeria to provide an incentive to return and in particular that he had not supplied any independent documents confirming that he owned Telix Technologies; the company bank statement failed to show a turnover allowing him to draw his level of stated income; a deposit of 5.9 million Naira had been made on 26 March 2012 four days prior to the generation of the document and was a cash deposit not indicating its source and the appellant’s personal bank statement showed salary deposits not corresponding with transfers out of the company account.
14. In his grounds of appeal the appellant refers to the fact that he holds a certificate of registration of the business name, number BN2131304, other certificates (containing both his and the business’ name) were attached to the application and the company profile had been filed reflecting the various activities of the company. On the issue of the 5.9 million Naira entering the account on 26 March 2012, he said that two company bank statements had been submitted which taken together showed that the company turnover was sufficient to meet the overheads including staff salaries and that the company and pro forma invoices submitted established the source of the sums received. It is argued that there was sufficient evidence to show the appellant’s strong family, social and economic ties to Nigeria and that he would be supported and maintained by his sponsor for the proposed short trip to the UK.
15. The appellant has sought to meet the point about the payment of 5.9 million Naira in to the company account by producing an invoice dated 25 March 2012 to Telestaff Concept which purports to be authorised on the same day and presumably paid in cash as the payment into the bank account was in cash the following day. He also produces invoices for dates between 2009 and 2012 in very similar form where the approval for payment is always on the date of invoice but there is no indication of when or where those sums if received were paid. The appellant fails to satisfy me that these are genuine documents. In the review decision the respondent made the point although a certificate of registration of the business name had been supplied and the appellant had asserted that the Memorandum of Articles and Association was not required to confirm ownership, those documents do identify the owners of a business in Nigeria whether limited or otherwise. The point was also made that the copy of the company account submitted was a photocopy and so it was not possible to determine if any amendments had been made.
16. I am not satisfied that it is possible to obtain a clear picture of the appellant’s financial position or of the viability or profitability of Telix Technologies from the evidence submitted or that there is sufficient evidence to show on the balance of probabilities that this is a company genuinely trading which is able to provide the appellant with his claimed income.
17. Further concerns arise about this application from the evidence about the number of previous sponsorships by the appellant’s sponsor whose statement repeats the assertion that he is related to the appellant and will accommodate and maintain him during the proposed visit and the argument that the issue of relationship had not been one of the issues raised between the parties before the appeal at the First-tier Tribunal. It says that there has never been any time that he has been contacted in respect of the appellant and that he and his wife are highly embarrassed by this allegation and refute the same in strong terms. However, his statement does not deal with the issue of whether he has sponsored other family members.
18. One of the previous applications it to attend a wedding in June 2012 whereas others relate to an application with a travel date of 1 August 2012 to attend an uncle’s wedding, 17 September 2012 to attend a cousin’s wedding and 27 September 2012 to attend an uncle’s wedding and finally for a holiday for three weeks with a travel date of 27 January 2013. The addresses given for the sponsor are 99 Old Road, the same address as given at box 8.4 on the present application with the same telephone numbers.
19. It may that there are innocent explanations for these sponsorships but nonetheless the onus is on the appellant to show that he can meet the requirements of the rules and the concerns arising from this multiple sponsorship confirm the doubts I have about whether the appellant has given a genuine account of his financial and domestic circumstances in Nigeria and about the purpose and extent of the visit.
20. In summary, although I am prepared to accept that he is related as claimed to the sponsor, I am not satisfied that the appellant has discharged the onus of showing that a genuine visit was intended for the purpose and period stated or that he would leave when his visit was concluded.
21. The First-tier Tribunal erred in law. The decision is set aside. I re-make the decision by dismissing the appellant’s appeal against the refusal of entry clearance as a family visitor.
Signed Dated: 15 October 2013
Upper Tribunal Judge Latter