RP (proof of forgery) Nigeria  UKAIT 00086
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 22 August 2006
Date Determination notified: 2 November 2006
Senior Immigration Judge Gill
|THE ENTRY CLEARANCE OFFICER, ABUJA||RESPONDENT|
DETERMINATION AND REASONS
An allegation of forgery needs to be proved by evidence and by the person making it. The procedure under s108 of the 2002 Act remains available to respondents. A bare allegation of forgery, or an assertion by an Entry Clearance Officer that he believed the document to be forged can in these circumstances carry no weight. The Tribunal treats a document as forged only on the basis of clear evidence before it. KS (Allegations by respondent: proof required?) Pakistan  UKAIT 00171should not be read as implying the contrary.
1. This is the reconsideration, at the instance of the appellant, of her appeal against the decision of the respondent on 22 March 2005 refusing her entry clearance as a family visitor to the United Kingdom.
2. The appellant's application was made on 9 March 2005. It was supported by a considerable number of documents relating to the appellant's employment as a Shell contractor since 1992. The appellant's son applied jointly with her. His application was supported by documents relating to his educational status. The appellant indicated in her application that she had been to the United Kingdom before and had left, apparently with no problems. She referred also to another visa that had been issued to her, but which she had not used because of illness. She supported that assertion by a doctor's report. Amongst the employment documents supporting the application are copy remittance advices from the Shell Petroleum Development Company of Nigeria Ltd. One is dated 8 January 2004; six others bear dates in December and January 2005. The total amount payable on those six is about 4,000,000 Naira.
3. The appellant was not interviewed. She therefore had no opportunity to deal with any concerns arising from her application. At some stage her application form was marked:
"Suspect forged documents – remittance advice from Shell has a run date of 6.1.05 but the stamp is 24/1/04. Not satisfied rest of docs genuine"
4. The reasons for the refusal are in the following terms:
"The introduction of the courier assisted visa application process has led me to consider your application solely on the documents provided and the information recorded by you on your visa application form. I acknowledge the importance of family visits in maintaining family ties, therefore I have given your application careful consideration. In support of your application, you have submitted remittance advice [sic] from Shell Petrolium [sic]. Following examination by a member of the Visa Forgery and Intelligence Team I am satisfied beyond reasonable doubt that the document in question is a forgery. The production of such documents undermines the credibility of the application and causes me to doubt your true motivation for this visit. In the light of this I am not satisfied you are genuinely seeking entry to the UK as a visitor for a period not exceeding six months as required by Rule 41(i) of HC 395 and that you intend to leave the UK at the end of the period of the visit as stated by you as required by Rule 41(ii) of HC 395.
In making my decision I have also taken account of the Human Rights Act. Whilst I accept that this decision constitutes limited interference with Article 8, I remind myself that this is a qualified right and I am satisfied that the decision is justified and proportionate in the interests of maintaining an effective immigration control. I am also aware of the fact that there is nothing in English law that prohibits the sponsor from travelling to Nigeria and enjoying family life with you in this country."
5. The appellant's appeal against that decision asserts that the respondent who concluded that "my SPDC registration certificate is forged" and that "I am leaving the country to UK for the purpose of settlement". In her grounds she asserts that she is a "renowned contractor to SPDC", and was registered as such on 24 April 1992 and that her status earning her living as a contractor can be readily checked. She points out that her "several trips to and from London" ought to be sufficient to show that she has no intention of settling, and asserts that in any event her son's studies at Delta State University prevent the two of them from remaining in the United Kingdom.
6. In the course of preparing the respondent's bundle for the appeal, the respondent added to it a letter, apparently in standard form, signed by the Entry Clearance Manager, and reading as follows:
"I have reviewed the ECO's decision following receipt of a family visit appeal and carefully considered the grounds of appeal. I am satisfied that the decision is correct and in accordance with the Immigration Rules.
ECOs in both Abuja and Lagos are able to assess and decide applications for Entry Clearance primarily on the information provided in the information form and the documents submitted in support. ECOs make additional enquiries or reference to local records to assist them in deciding an application. In the majority of cases where an interview is deemed necessary the applicant will be asked to attend in person. In such cases the interview record will be included in the appeal bundle."
7. The hearing before the Immigration Judge took place on 7 February 2006. The sponsor appeared for the appellant and the respondent was also represented. The sponsor gave evidence. It is not clear whether there were any submissions made by either party: the determination contains a passage headed "The Case for the Respondent", but that merely repeats the wording of the Notice of Refusal.
8. The following section of the determination is headed "My Findings". We have to say that we do not find it easy to understand. The Immigration Judge begins by saying that "My initial reaction was that if it were not for the finding that the Shell document was a forgery I would have no difficulty in deciding this matter in favour of the appellant". This is because the sponsor's evidence was credible and "not in any way inconsistent" and the sponsor's evidence relating to the appellant's previous visits to the United Kingdom had not been disputed by the respondent. As the Immigration Judge writes, "this therefore appears to be a strong application, well supported by the ample documentary materials which the appellant has provided". We must set out the following three paragraphs of the determination in full.
"18. The evidence difficulty, of course, comes in the form of the check that has been done on the Shell document provided by the appellant. This document has been found, following examination by a member of the Visa forgery and Intelligence team 'beyond reasonable doubt' to have been a forgery. I therefore have the very difficult task of setting of this finding against the application which I otherwise regarded as being strong. The finding to the effect that the document was a forgery is a bare statement to that effect. There is no condescension to detail and this is possibly for the understandable reason that the Visa forgery and intelligence team do not want to advise people who put forward fraudulent documents as to the shortcomings of their efforts. I have to say that I have had considerable misgivings about attaching much weight to this assertion. The position which I am left in is that there is only one piece of evidence which goes against the applicant. It is simply the say-so of somebody who has apparently conducted an inspection or investigation of which I have no details. If this appeal is to have any real function or meaning I should not be asked to decide in the one party's favour on the basis of a bare statement which I am almost wholly unable to evaluate. It may very well be that the investigation or examination was carried out with great thoroughness and care on the other hand it may have been done in a very different way. However there is another document which causes a problem for the appellant. In the bundle of documents there is a letter of the 3 March 2005 from the appellant saying that she wished to renew her visa. She said that her last visa which expired 12/9/04 was not used due to a very serious health problem.
19. These dates simply do not fit with the evidence of Mr Okperin who said that she had visited in December 2004. She also said that she had been travelling to the UK on several trips since 2002. This statement also does not really fit with the evidence of Mr Okperin either, since he said that there had been two visits and seemed to have difficulty in recalling the one before the December 2004 visit.
20. It is unfortunate that Mr Okperin was not challenged about these matters. However the documents in question emanate form [sic] the appellant and I have to take them into account. In all the circumstances I have to put the problems over the dates together with the evidence of the forgery and I find that on the balance of probabilities the appellant has not satisfied me that she is genuinely seeking entry as a visitor for the limited period as stated by her."
The Immigration Judge accordingly dismissed the appeal.
9. The application for reconsideration is incomplete on the file and may never have been complete. Reconsideration was ordered for the following reasons:
"Although the forgery point was not the only one relied upon by the Immigration Judge, he recognised the problem caused by the respondent's failure to give any details of his allegation, and these may have led to an arguable error of law on his part."
10. We heard submissions from Mr Gulvin and the sponsor; the sponsor had come prepared with documents intended to establish that the difficulty as to dates, identified by the Immigration Judge but not put to the sponsor at the hearing, ought not to cause any concern. Mr Gulvin told us that he would be prepared to accept on the basis of those documents that the appellant had made three previous visits to the United Kingdom and had returned in each case after two or three weeks. He remarked that it was not particularly surprising if the sponsor could not remember the exact dates at the hearing.
11. We are primarily concerned with whether the Immigration Judge's determination is vitiated by a material error of law. Although it is no doubt, in retrospect, regrettable that the Immigration Judge did not give the sponsor an opportunity to explain the apparent discrepancies between his and the appellant's evidence as to the dates of her previous visits, we do not consider that that amounted to a material error of law. It was for the appellant to put a coherent and credible case, and the evidence, taken as a whole, was not coherent and credible. The Immigration Judge committed no conceivable error of law in regarding the sponsor as credible, and he was left with the position that the credible evidence before him did not match the evidence derived directly from the appellant, whose credibility had been put in doubt by the Entry Clearance Officer.
12. Paragraph 20 of the Adjudicator's determination, however, makes it quite clear that despite the reservations about the allegation of forgery that he had expressed at paragraph 18, he took that allegation, now described as "the evidence of the forgery" into account in determining the appeal. We think that that was an error of law, and a serious one. It appears to us also to have been material in his determination of the appeal.
13. In this case the Entry Clearance Officer alleged that a document provided by the appellant was forged. Despite the possibility of interviewing the appellant, he decided not to do so. He expressed his refusal in such vague terms that, as is apparent from the appellant's grounds of appeal, she was not aware which document was alleged to be forged. The Notice of Refusal indicates the process by which the Entry Clearance Officer has reached his conclusion that the document in question is forged, but no further information has been provided.
14. In judicial proceedings an allegation of forgery needs to be established to a high degree of proof, by the person making the allegation. This is therefore a matter on which the respondent bears the burden of proof. Immigration Judges decide cases on evidence, and in the absence of any concession by the appellant, an Immigration Judge is not entitled to find or assume that a document is a forgery, or to treat it as a forgery for the purposes of his determination, save on the basis of evidence before him. In the present case the evidence was limited to the Entry Clearance Officer's assertion of his own view and the defect in the document identified in the notes on the application form – that is to say, the mismatch between the run date and the date stamp on one of the remittance documents. That evidence is wholly insufficient to establish that that document is a forgery. There is no reason to suppose that it is not a simple mistake. As it happens, "petroleum" is misspelt in the Notice of Refusal. Although we would be inclined to suppose that Entry Clearance Officers can spell this word, we do not automatically assume that the Notice of Refusal is a forgery: there is no reason to suppose that it was not simply a mistake.
15. It is right, of course, to say that a person involved with the detection of the forgery would not wish to broadcast the means by which he had been able to establish that a document was forged. But the state has, in immigration appeals, the rare privilege of being able to give evidence as to forgery in private. That privilege has existed since the Immigration Act 1971, and is presently contained in s108 of the 2002 Act, which is in the following terms:
"108. Forged document: proceedings in private
(1) This section applies where it is alleged –
(a) that a document relied on by a party to an appeal under section 82, if a forgery, and
(b) that disclosure to that party of a matter relating to the detection of the forgery would be contrary to the public interest.
(2) The Tribunal
(a) must investigate the allegation in private, and
(b) may proceed in private so far as necessary to prevent disclosure of the matter referred to in sub-section (1)(b)"
Section 108 is a specific exception to Rule 51(7) of the 2005 Procedure Rules requiring the Tribunal not to take account of any evidence that has not been made available to all the parties.
16. We are aware that in a case reported as KS (Allegations by respondent: proof required) Pakistan  UKAIT 00171, the Immigration Appeal Tribunal asserted that:
"Allegations of forgery made by the Entry Clearance Officer do have to be given some evidential value. Without particulars or supporting evidence, that value will not be a high one; but they are not mere assertions by an ordinary civil claimant but statements by a person in a official position about something very much within his responsibilities.
17. That does not seem to us to be right. No doubt the allegations by the Entry Clearance Officer are, as allegations, entitled to the greatest respect. But findings have to be made on evidence, and the Tribunal in KS appears to have taken no account of either the incidence of the burden of proof where there is an allegation of forgery, nor of the existence of s108. Section 108 removes from the respondent any need for caution in presenting evidence supporting an allegation of forgery. In these circumstances we do not think it can be right to allow a bare assertion to stand by itself as though it were evidence. Indeed, given that the facilities under s108 are available, we should have thought that if a respondent chooses not to provide evidence enabling the Tribunal to decide for itself that a document is forged, the inference that no such evidence exists is almost inevitable. In any event, we regard an Entry Clearance Officer's bare assertion that in his clear opinion a document is a forgery as wholly inadequate to establish the matter before the Tribunal.
18. In the present case, the Immigration Judge had the advantages of inspecting the documents in question, which had been identified to him, although not apparently to the appellant. There is no indication at all in his determination that he gave the matter any independent thought. If he had done so, he ought to have considered whether it would be right to reach the conclusion that that document was a forgery rather than incorporating an honest mistake; and in the context of this case in particular he perhaps ought to have considered the documents as a whole. It is of course right to say that the use of a forged document casts grave doubt upon the credibility of an applicant. But the conclusion which the Entry Clearance Officer drew in the present case, and asked the Immigration Judge to draw, was that this individual document was a forgery, and that this cast doubt on the entire thirteen-year employment history of the applicant, which history had evidently been accepted by previous Entry Clearance Officers. We are inclined to doubt whether even the Entry Clearance Officer ought to have reached the conclusion without any further enquiry at all. Suffice it to say that the Immigration Judge erred by treating the document that was a forgery on the basis of the material before him.
19. The one document which has the features identified has not been shown to be a forgery; none of the other copious documentation has been doubted in any way, nor has the appellant's employment or immigration history. Having found that the Immigration Judge materially erred in law, we substitute a determination allowing the appellant's appeal.
20. The Immigration Judge also dismissed the appeal of the appellant's son. There appears to have been no application on his behalf for reconsideration of the appeal: that may, however, have been because the appellant, acting in person, thought that one application was enough. Formally, the dismissal of the son's appeal stands: in the light of our decision on the reconsideration of his mother's appeal, however, it is clear that he should now be treated as a successful appellant in line with her.
C M G OCKELTON