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


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2025000306 & UI2025000307 [2025] UKAITUR UI2025000306 (23 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000306.html
Cite as: [2025] UKAITUR UI2025000306

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A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2025-000306

UI-2025-000307

 

First-tier Tribunal Nos: EA/03678/2022

EA/03656/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

23 rd May 2025

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

 

Between

 

Portia Prempeh-Boateng (First Appellant)

Philip Donkor Osei (Second Appellant)

(NO ANONYMITY ORDER MADE)

Appellants

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellants: Mr Malik, Counsel instructed by Adukus Law Limited

For the Respondent: Mr Simbi, Senior Home Office Presenting Officer

 

Heard at Field House on 19 May 2025

 

DECISION AND REASONS

1.               The appellants are citizens of Ghana who applied under the EU Settlement Scheme for leave to remain in the UK as adult children of an EEA national ("the sponsor").

2.               As part of the application, they submitted birth certificates. The respondent made enquiries about the veracity of the birth certificates and a Document Verification Report ("DVR") was obtained. The DVR concluded that the documents were false.

3.               In the light of the DVR, the respondent refused the applications. The appellants appealed to the First-tier Tribunal where their appeal came before Judge of the First-tier Tribunal Mulholland ("the judge"). In a decision dated 2 December 2024 the judge dismissed the appeal. The appellants are now appealing against this decision.

The Document Verification Report

4.               The DVR states that the verification of the birth certificates was undertaken by an entry clearance assistant. In a table, alongside the words "Verifier's Experience" the following is stated:

"I have been working in UKVI for 4 years and as part of my duties, I regularly examine and check documents submitted in support of entry clearance applications in an attempt to establish whether they are genuine or not. I conducted the above check and confirm that correspondence has been sent through official channels and all statements and evidence is true and correct to the best of my knowledge."

5.               In a table, next to the words "Contact details", the following is stated:

" Mr Christel Debrah

Position: Administrator

Role: Senior official responsible for operations in the Registry where official births and deaths certificate records are held by the Government of Ghana."

6.               In the same table, next to the words "Contact History", the following is stated:

"• Contact has been initiated by telephone direct to the above person, to request verification of the document

• A photograph of the document has been sent to the official contact (above) in order to verify if it is genuinely issued by Government of Ghana

• The contact has completed internal checks and has responded through official means, that the document has been assessed 'fraudulent'

• Documents received via courier due to technical hitches. See scanned copy below:"

The Report of Yvonne Wassah, Private Legal Practitioner in Ghana

7.               To support their case, the appellants obtained a report by Miss Wassah. Miss Wassah identifies herself in the report as a private legal practitioner and provides a licence and chambers number after her signature at the end of the report.

8.               Miss Wassah begins her report by stating that she has been instructed to consider the law governing birth, registration and certification in Ghana. After setting out background information about the legal regime relevant to registration of births and deaths in Ghana she sets out, and answers, nine specific questions.

9.               The first question asks Miss Wassah to comment on the agency responsible for registering births and whether the supervising ministry exercises direct control over the operations of the agency. The second question asks about the evidential weight of a birth certificate in Ghana. The third question asks about whether clerical errors can be corrected and if so, the effect of such a correction. The fourth questions asks who are the officers of the agency with legal custody of birth registration and whether she takes the view that the role of a senior official responsible for operations is recognised in law as someone with legal custody of birth registration records and can lawfully authenticate such records. The fifth question asks her opinion on an administrator or a senior official responsible for operations extracting information from the register and sharing it with third parties without recourse to processes expressed in the act. The sixth question asks whether she takes the view that an administrator or a senior official responsible for operations who is not the registrar or the district registrar can lawfully conduct a search of the register. The seventh question asks whether there are sanctions prescribed in law for people in properly making disclosure. The eighth question asks for comment on the process required by law for third parties obtaining a certified copy of an entry in the birth register and the ninth questions asks about birth certificates being annulled, cancelled or invalidated.

10.           The reason I have, in the paragraph above, set out the 9 questions Ms Wassah answered in her report, is to highlight that the questions are all "generic" in the sense that they relate to particular aspects of Ghanaian law and procedure and are not about the appellants' birth certificates. At the hearing before me I put it to Mr Malik that Ms Wassah's report appeared to comprise of answers to general questions about law and process in Ghana rather than specifically to the appellants. Mr Malik did not disagree with this characterisation of the report.

First-tier Tribunal Decision

11.           The focus of the judge's decision is on the DVR and on the evidence of Miss Wassah. Both are discussed in considerable detail.

12.           The judge attached little weight to Miss Wassah's report. The reasons are given in paragraphs 28 to 29 where the judge states:

" 28. Having looked at the Miss Wassah's report, I am satisfied that she has failed to comply with Rule 10.9 of the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal as she did not provide a list of her qualifications or her credentials in writing the report. Although she identified herself as a private legal practitioner, she has not provided her identity documents with the report or her bar registration number or equivalent to confirm she is a private legal practitioner.

29. Miss Wassah did not indicate that she is an expert on verifying birth and death documentation. Furthermore, there is nothing in the report that shows that she has experience to comment on the internal operations of a government department. She has not referred the documents to the Registrar in order to confirm whether or not they were false and made no direct enquiries to establish whether Mr Debra had been given authority to answer the enquiry. Miss Wassah failed to address the core concern that the birth certificates provided by the Appellants were false. These issues seriously undermine the weight to be attached to the report."

13.           The judge noted the absence of DNA evidence. In paragraph 14 the judge stated:

" The Appellants were given an opportunity to obtain DNA evidence to put the matter to rest. They did not wish to do so."

14.           In paragraph 30 the judge stated:

"30. The Appellants and their Sponsor were asked why they did not obtain DNA evidence and they said that there was no reason why they chose not to do so. This seriously undermines their accounts as it has been clear that the issue is biological connection and that matter would be easily resolved by DNA evidence rather than incurring costs associated with obtaining reports and other less reliable verification methods."

15.           The judge also noted that the appellants had not contacted Mr Debra (the Ghanian official contacted for the DVR), stating in paragraph 30:

" There is nothing in the Appellants' or their Sponsor's evidence to show that anyone had contacted Mr Debra directly or his superiors to enquire or the verification officer about this matter and no explanation was proffered as to why."

16.           The judge noted that the appellants had had the birth certificates authenticated by the Ghanaian High Commission, but found in paragraph 33:

" These documents say the birth certificates are genuine. However, no information has been provided to demonstrate how these documents were verified. Insufficient details have been given as to their seniority. The DVR report shows the branch, the person responsible for the checks and how the checks were carried out. It was open to those referred to before, to contact the branch and the individual concerned given they claim there was a clerical error. Their failure to do so undermines their account."

17.           The judge concluded in paragraph 37 that the respondent had discharged the burden of proof.

18.           There are two references to the burden of proof in the decision. In paragraph 7 the judge states:

" The burden of proof is on the Respondent to show that the documents are false on a balance of probabilities".

In paragraph 37 the judge states:

"I am satisfied that the Respondent has discharged the burden of proof".

Grounds of Appeal

19.           There are three grounds of appeal. Ground 1 submits that the judge misapplied the burden of proof by requiring the appellants to submit DNA evidence when there is no requirement to do so; and by criticising the appellants for not contacting either Mr Debra or his superiors.

20.           Ground 2 submits that the judge failed to recognise that where forgery is alleged a high degree of cogency is required to establish that the burden of proof is established.

21.           Ground 3 argues that the judge was wrong to state that Miss Wassah failed to comply with Rule 10.9 of the Practice Directions.

Submissions

22.           Both Ms Simbi for the respondent, and Mr Malik for the appellants, made clear and succinct oral submissions, for which I am grateful. I have not set these out in the decision, but have reflected on them and they are incorporated into my analysis.

Ground 1: Misapplication of the Burden of Proof

23.           The judge correctly identified that the burden of proof lay with the respondent: see paragraphs 7 and 37 of the decision.

24.           Mr Malik accepted that the judge correctly directed herself. His argument, in respect of the burden of proof, was that although the self-direction was correct, in substance the judge misapplied the burden because the expectation placed on the appellant to obtain DNA evidence and to make enquiries in Ghana about the outcome of the DVR amounted to putting the burden on the appellants. He maintained that there was no need for the appellants to take the steps the judge considered necessary because the burden lay with the respondent.

25.           I am not persuaded by Mr Malik's argument. The respondent adduced evidence, in the form of the DVR, that, on its face, is strong evidence to establish that the birth certificates relied on by the appellants are not genuine. In the face of such evidence, it was not shifting the burden for the judge to take into account that there was a relatively straightforward and commonplace step that could settle the matter (i.e. taking a DNA test) that the appellants had (a) not taken, and (b) not provided a reason for not taking. Likewise, the judge was entitled to take into account that, despite engaging an expert, the appellants had not - through the expert or otherwise - made enquiries with the relevant agency in Ghana to find out why their birth certificates had been labelled as fraudulent.

26.           If the judge had found that the appellants were not related to the sponsor because of an absence of DNA evidence that would, undoubtedly, have been an error of law. This is because, as Mr Malik emphasised, there is no requirement in the Immigration Rules (or elsewhere) for those applying for entry under the EUSS as a child of an EEA national to prove the relationship by way of DNA evidence. However, this is not a case where the judge imposed a requirement of DNA evidence. The reason the judge found the appellants had not established the claimed biological relationship was not that there was no DNA evidence, it was that there was a DVR describing the birth certificates as fraudulent and the evidence submitted by the appellants was insufficient to counter this. When considering the weight to place on the DVR, it was open to the judge to take into account that the appellants could have, but had not, taken a DNA test to refute the conclusion of the DVR, as this is relevant to the question of whether the respondent had discharged the burden.

Ground 2: Not Applying the Correct Standard of Proof

27.           Where deception is alleged a judge must keep in mind the nature of the allegation and the serious consequences which follow from a finding of dishonesty (see paragraph 43 of Balajigari & others v SSHD [2019] EWCA Civ 673) but the standard of proof remains the same: the balance of probabilities. The judge identified that the standard was the balance of probabilities (see paragraph 7 of the decision), and there is nothing in the decision to indicate that the judge failed to appreciate the seriousness of the allegation or its consequences. This ground therefore has no merit.

Ground 3: Assessment of Expert Evidence

28.           Practice Direction 10.9.(a) states that an expert report must "give details of the expert's qualifications".

29.           At the end of her report, Miss Wassah states, after giving her name, that she is a private legal practitioner and she provided her licence and chambers registration number. Accordingly, she has, as submitted by Mr Malik, provided the information required by Practice Direction 10.9(a). The judge was therefore mistaken to state that there had not been compliance with this part of the Practice Direction.

30.           However, this is immaterial because the judge gave two cogent reasons, unrelated to Practice Direction 10.9, for not attaching weight to Miss Wassah's report. First, as the judge found in paragraph 29, Miss Wassah did not state that she has (or explain the basis for her having) expertise on verification of birth certificates or the internal operations of the relevant government department. Second, as the judge found in paragraph 29, Ms Wassah did not actually address whether the birth certificates were false. Her report is "generic", dealing with the law in general terms rather than the appellants' certificates, and she did not approach the registrar in Ghana to establish that the documents are in fact genuine or ascertain why they had been labelled fraudulent. For these reasons the judge's error about whether Practice Direction 10.9(a) had been complied with is immaterial.

Conclusion

31.           This is a case where there was strong evidence, in the form of the DVR, indicating that the birth certificates relied on by the appellants were not genuine. The DVR was amply sufficient evidence for the respondent to discharge the burden, and the judge was entitled to treat it as such.

32.           The appellants have had an opportunity to refute the conclusion in the DVR. For reasons that have not been explained, they did not take the relatively straightforward and commonplace step of obtaining DNA evidence which would have established beyond doubt their relationship to the sponsor. Instead, they relied on an expert report. However, the report has serious shortcomings, as explained in paragraphs 28-29 of the decision. In these circumstances, the judge was entitled, for the reasons given, to conclude that the respondent had discharged the burden of proof. The appeal is therefore dismissed.

Notice of Decision

33.           The decision of the First-tier Tribunal did not involve the making of a material error of law and stands.

 

D Sheridan

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

23 May 2025

 

 

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