United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IAC-AH-DN-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: OA/09481/2014

OA/09482/2014

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 8 April 2016	On 20 April 2016

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

 

Between

 

Mrs diana abushaban - first appellant

[R K] - second appellant

(ANONYMITY DIRECTION not made)

Appellants

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

 

For the Appellants: Ms C Fielden (Counsel instructed)

For the Respondent: Mr D Clarke (Home Office Presenting Officer)

 

 

DECISION AND REASONS

 

 

1. The appellants are mother and daughter. The first appellant was born on 29 October 1984 and is a citizen of the Palestinian Occupied Territories. The second appellant is the daughter born on [ ] 2013 and is a citizen of Libya. The sponsor, Mr Emadedin Khayal, is a British citizen born on 26 October 1975.

 

2. The appellants appeal against a decision made by First-tier Tribunal (Judge Aujla) ("FTT") promulgated on 2 September 2015 in which he dismissed the appeal in respect of the Immigration Rules and on human rights grounds under Article 8.

 

3. The appellant applied for entry clearance to join the sponsor as his spouse. The daughter's application was made in line with that of the first appellant. The Secretary of State refused the application with reference to Appendix FM at paragraphs EC-P.1.1(c), S-EC.2.2(a) and EC-P.1.1(d) and E-ECP.3.1. The evidence relied on by the appellant in connection with the sponsor's earnings and employment was found not to be genuine. The respondent relied on S-EC.2.2(a) namely that false information representation documents had been submitted in relation to the application. For the same reason the respondent refused the application under the eligibility requirements with reference to the financial requirements under 3.1. The respondent relied on two document verification reports ("DVR"). The first DVR dealt with evidence submitted with the application and the second DVR dealt with evidence including payslips and a P60 submitted with the grounds of appeal. The respondent reviewed the decision and upheld the refusal in an explanatory statement.

 

The FTT Decision

 

4. The FTT expressed the standard of proof as the civil standard [ 11 & 14] and referred to the burden of proof on the respondent.

 

5. The FTT recorded the sponsor's evidence about his earnings and the payslips produced by his employer following his request for evidence of earnings in connection with his wife's application for entry clearance [23]. The FTT noted that the appellant's representative conceded that there were problems with the payslips but he relied on the P60 which showed earnings consistent with HMRC records.

 

6. At [31] the FTT found the appellant failed to produce proper payslips and found that these were not genuine. The sponsor had not explained discrepancies shown in the payslips, the claimed earnings did not match records held by HMRC. It placed little weight on the P60 as it was issued by the sponsor's employer. It was accepted that tax had been paid by the sponsor in the sum of £6,894.60. The FTT found the evidence to be consistent with the second DVR, that the evidence showed possible contrived earnings.

 

 

Grounds of Application

 

7. The grounds were drafted by the sponsor as follows:

 

(i) The appellant has now obtained full and frank wage slips of her partner these wage slips correspond with the HMRC evidence of tax and national insurance paid to her husband.

 

(ii) The Immigration Judge erred by reaching a conclusion that the appellant had contrived her partner's earnings without allowing him sufficient time to gather the correct evidence was a material error of law.

 

(iii) To find the appellant's husband has contrived to conceal his earnings effectively places a bar on the appellant being reunited with her husband for the next ten years.

 

(iv) Furthermore, the Immigration Judge erred in law by failing to give adequate consideration in accordance with Razgar when determining that the appellant or her daughter had not met Article 8 of the ECHR. No reasons were given for this.

 

8. Permission to appeal was granted by First-tier Tribunal Judge P J M Hollingworth on 15 February 2006. He also granted an extension of time.

 

 

9. FTJ Hollingworth found an arguable error of law had arisen in relation to the standard of proof which the respondent must reach with reference to paragraphs 14 and 32 of the FTT decision which referred to the balance of probabilities. Permission was granted on the basis that "The judge has not particularised or used appropriate words to indicate the place on the spectrum of the balance of probabilities which must be reached by the respondent in order for the burden of proof to be discharged." [No permission was granted in respect of the grounds of application as drafted by the sponsor.]

 

Rule 24 Response

 

10. The respondent opposed the appeal arguing that the FTT directed itself appropriately. At paragraph 32 of the decision and reasons the FTT referred to the correct burden of proof; the respondent needed to establish on the balance of probabilities that the documents showing the sponsor's earnings were not genuine (see re B (children) [2008] UKHL 35). The FTT gave adequate reasons in paragraphs 28 to 32 as to why the documents were not reliable.

Error of Law Hearing

 

Preliminary Issue

 

11. At the start of the hearing I drew Ms Fielden's attention to terms of grant of permission specifically as to the burden and standard of proof. There was no ground in support of that issue and no application for leave to amend had been made.

 

12. Mr Clarke submitted that the UT was not required to consider any ground of appeal other than those included in the application ( E. Miftari [2005] EWCA Civ 481).

 

13. Ms Fielden made an application for leave to amend the grounds of appeal. The sponsor had drafted the grounds himself and at that stage was acting in person. The permitting judge had raised an obvious point.

 

Leave to amend

14. I granted permission to amend the grounds of appeal pursuant to Rule 5 (Tribunal Procedure Rules (Upper Tribunal) 2008) to incorporate the ground that the FTT erred by failing to particularise or use appropriate words to indicate the place on the spectrum of the balance of probabilities that must be reached by the respondent in order for the burden of proof to be discharged.

 

 

Submissions

 

15. Ms Fielden relied on written submissions and expanded on the same. The current position as submitted by Ms Fielden is that whilst acknowledging that there were difficulties "with the payslips relied on by the sponsor", there was no deception by the appellant or sponsor as the payslips were produced by his employer. There was other evidence before the FTT that was capable of showing that the sponsor had met the financial requirements. In any event Ms Fielden acknowledged that the appeal ought to have been dismissed as the appellant failed to meet the specified documents requirements. Her main concern was that there had been no dishonesty on the part of the appellant or sponsor.

 

16. As to the main ground of appeal, Ms Fielden argued that the FTT failed to express the qualification or flexibility that arises when considering an allegation of deception. It is necessary for the FTT to have regard to the very serious consequences for the appellant in making any future applications. She further argued that the scrutiny of the evidence carried out by the FTT was inadequate. She accepted that the payslips were unreliable evidentially but that they had been produced by the sponsor's employer. She argued that the approach to the standard of proof required by the FTT was in accordance with Ghiri (paragraphs 36 and 37) which required a degree of flexibility in its application to the extent that the more serious the allegation the stronger the need for cogent evidence. She indicated that a heightened degree of scrutiny was required and that the FTT erred by referring simply to the standard of proof as the balance of probabilities.

 

17. Mr Clarke submitted that there was no error of law. The FTT had set out and applied the correct civil standard of proof and the burden of proof was on the respondent. The decision and reasons showed proper scrutiny of the evidence before the FTT. The payslips were found not to be genuine. The sponsor had been fully aware of the refusal reasons and the concerns raised as to the reliability of the evidence in particular the payslips. He failed to deal with those concerns by way of any proper explanation at the FTT hearing. The FTT found the payslips together with inconsistencies had all the hallmarks of contrived earnings. Mr Clarke submitted that in such circumstances it was difficult to see how the evidence could not have been regarded as strong or cogent.

 

Discussion and Decision

 

18. The two grounds of appeal drafted by the sponsor were not pursued by Ms Fielden and therefore I do not propose to consider the same.

 

19. It was common ground that the standard of proof is the civil standard namely the balance of probabilities and that when considering issues in relation to deception it is necessary to import some level of flexibility to the extent that the respondent must produce and rely on strong and cogent evidence to meet the standard of proof.

20. As to the substance of this appeal I must consider whether or not there was a material error of law by FTT having regard to the application of the correct standard of proof. I am satisfied that although it expressed the burden and standard of proof correctly at paragraphs 11 and 14, there was no reference to any flexibility as to the quality of the evidence relied on. I find no basis for any argument that the FTT failed to consider the evidence with a sufficient level of scrutiny. The FTT dealt with the particular concerns raised by the respondent as to the reliability of the financial evidence and gave the sponsor every opportunity to explain and deal with those concerns.

 

21. Whilst accepting that no specific reference was made by the FTT to the need for strong and cogent evidence in order to discharge the burden and standard of proof that false documents were used, I am satisfied that the FTT found that the respondent had relied on strong and cogent evidence, namely the payslips produced by the appellant as evidence of his employment /earnings. The FTT also referred to the fact that at the hearing the appellant's representative acknowledged that there were problems with the payslips. It is now conceded by Ms Fielden that the payslips were not reliable evidence of the appellant's earnings. The FTT made clear findings that those documents could not be relied on as an accurate reflection of the sponsor's earnings. According to Ms Fielden the sponsor now claims that he lost his original payslips and asked his employer to produce a further set. That explanation was not put to the FTT and the fact remains that the payslips, which were found to show false information, were adduced with the grounds of appeal. The fact that they were purportedly produced by his employer is not material as it was the appellant\sponsor who used them as evidence in response to the concerns raised about his earnings and employment.

 

22. Whilst accepting that there was a P60 in evidence before the FTT capable of supporting the appellant's claim that her husband was earning and that P60 tallied with HMRC records, however the FTT found that the P60 was not reliable evidence as it came from his employer rather than from HMRC. It was open to the FTT to make the findings that it did having regard to the evidence before it. I am satisfied that there is no material error of law. Even though the FTT failed to express the flexibility in the approach to the standard of proof in cases where deception is used, I am satisfied that there would have been no difference to the outcome in the light of the findings made. There were suspicions aired in the DVRs that the sponsor's employment and earnings were contrived, but the issue before the FTT was whether or not the respondent had shown to the required standard of proof that the payslips relied on by the appellant were false. That was the basis of the refusal decision and not whether the appellant met the income threshold or related evidential requirements. The decision and reasons shall stand and the appeal is dismissed.

 

Notice of Decision

 

23. There is no material error of law in the decision and reasons which shall stand.

 

No anonymity direction is made.

 

 

 

 

 

Signed Date 15.4.2016

 

GA Black

Deputy Upper Tribunal Judge G A Black

 

 

TO THE RESPONDENT

FEE AWARD

 

I have dismissed the appeal and therefore there can be no fee award.

 

 

 

 

 

 

Signed Date 15.4.2016

 

GA Black

Deputy Upper Tribunal Judge G A Black