United Kingdom Asylum and Immigration Tribunal

OA (Entry Clearance Officer: service of documents) Nigeria [2007] UKAIT 00009

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 10 January 2007

Date Determination notified: 25 January 2007

Before
Senior Immigration Judge Gleeson
Between

OA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

If the Entry Clearance Officer disregards the plain (and repeated) direction of the Tribunal to serve and file Explanatory Statement and supporting documents in time for the hearing, then he must take the chance of the Tribunal not understanding his reasoning processes and disagreeing with his assessment of the credibility of the appellant. Where an Immigration Judge is faced with a party's failure to comply with directions, his first question must be whether he has sufficient material before him to enable him to determine the appeal, notwithstanding this failure.

The absence of the respondent's documents, as in this appeal, which was on the papers causes particular difficulties in assessing whether the decision reached by the Entry Clearance Officer is sustainable in law, but documents submitted by the non-defaulting party may enable the appeal to be determined. Whether that is so in any particular appeal is a question for the Immigration Judge hearing the appeal.

Where documents filed by an appellant were apparently genuine and sufficient to sustain his claim, even though (unbeknown to the Immigration Judge) the Entry Clearance Officer had received evidence that some of those documents were forged, it is difficult to see how the Entry Clearance Officer could properly complain of a positive credibility finding by the Immigration Judge on the material which was before him.

1. This is the reconsideration, with permission granted to the appellant, of the determination of Immigration Judge Reid, who dismissed his appeal against the decision of the Entry Clearance Officer to refuse him entry clearance to study on a Financial Management course at the University of Hull, at his father's expense. The appeal fell to be assessed under paragraph 57 of HC 395 (as amended). The appellant is a citizen of Nigeria.
2. The Immigration Judge noted that the appellant, who has no United Kingdom sponsor, wished the appeal to be decided on the basis of the information on file. This is one of the many appeals recently where the Entry Clearance Officer documents were not before the Immigration Judge in time for the hearing, despite two directions to file and serve them. I shall set out the documents which were before the Immigration Judge, and then assess the significance of the missing documents.
3. The Immigration Judge summarised the grounds for refusal as being that the Entry Clearance Officer was not satisfied that the appellant could meet the costs of the course without recourse to public funds or employment as the documents produced by the appellant in relation to his father's finances related to a limited company, not an individual. She noted that the respondent had failed to provide the application form or the documents originally submitted by the appellant, which she considered 'less than satisfactory'.
4. The grounds of appeal principally challenged the Entry Clearance Officer's assessment that the financial documents submitted in support of the application referred to a limited company with five signatories. The company sponsoring the appellant bears his family surname. It was in fact, said the grounds of appeal, solely owned by the appellant's father, who was the sole signatory of the company's current account. The grounds stated that the appellant had attached the father's personal current account number with the same bankers, and a letter from the bank confirming that the appellant's father was the sole signatory both on his personal and business accounts.
5. The Immigration Judge set out paragraphs 57 and 58 of HC 395 (as amended) and reminded herself that the burden of proof was on the appellant, to the standard of balance of probabilities. She took into account the documents provided by the appellant, which were all that she had to go on, and in particular, a letter he had obtained from his father's bankers, Guaranty Trust Bank plc ('Guaranty Trust') confirming that his father was sole signatory to a particular account number. She was unimpressed by that: the letter was misspelled and ungrammatical and failed to name the company concerned. Guaranty Trust bank statements for that account were poor quality photocopies.

The Immigration Decision

6. Fortunately, the appellant had supplied with his grounds of appeal a copy of the Notice of Immigration Decision giving the Entry Clearance Officer's reasons for refusing him entry clearance. The Entry Clearance Officer's decision notice of 16 August 2006 stated –

"You have applied for entry clearance to enable you to study in the United Kingdom and have completed an additional questionnaire to assist your application. I have carefully considered your application on the basis of your passport, application form, supplementary questionnaire and the papers you have provided. You have declared that the information you have given is complete and true to the best of your knowledge.

However, I am not satisfied, on the balance of probabilities, that you meet the requirements of paragraph 57, and in particular: that you are able to meet the costs of the course and maintain and accommodate yourself without recourse to public funds or taking employment

BECAUSE

The cost of your tuition, maintenance and accommodation is to be borne by your father. However, the financial documents you have submitted refer to a limited company. I note that there are five signatories to this company account. There is nothing to suggest that you have access to these funds to pay for your proposed trip. In the absence of any other evidence of your sponsor's business, income, or the origin of these funds, I am not satisfied that the evidence presented is a true reflection of your sponsor's financial circumstances or that these funds would be available. This ultimately leads me to doubt you have the funds to pay for your course or adequately maintain and accommodate yourself in the United Kingdom without recourse to public funds or taking employment.

Furthermore, the educational establishment in the United Kingdom has stated that the cost of your tuition fees for one year is £7950. British Council guidelines suggest students require between £7800 and £9700 per annum for maintenance and living expenses in the United Kingdom. This brings the total cost of your studies in the United Kingdom for one year to £17000. Your sponsor's financial documents do not satisfactorily confirm that you have sufficient funds to cover the cost of your studies in the United Kingdom and adequately maintain and accommodate yourself whilst there.

Therefore I am not satisfied that this represents a genuine and meaningful offer of sponsorships and that these funds would be but [sic] question your motivation for undertaking this course at this time.

I therefore refuse your application."

7. The notice indicated that the appellant's completed appeal form should not arrive later than 28 days after the date of decision. The appellant appealed promptly, five days later, on 21 August 2005, enclosing the documents already set out.

Directions to the Entry Clearance Officer

8. On 7 November 2005, the respondent was served with a copy of the Notice of Appeal by the Tribunal, and directed to file: a copy of the notice of decision to which the notice of appeal relates, and any other document giving reasons for that decision, together with any application form, record of interview or any other unpublished document which is relied upon by the respondent. The respondent was also required to serve all of these documents on the appellant, with the exception of any which had already been sent to the appellant. The respondent did not comply.
9. On 6 February 2006, the respondent was again directed under rule 13 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to file with the Tribunal 'copy of the documents specified within the rule'. The documents, the notice states, should have been filed not later than 23 January 2006 and were already late. The respondent was required to supply the documents 'without further delay' and to serve them on the appellant, unless they had already been sent to the appellant. The notice continues –

"Please note that under 51(4), the Tribunal must not consider any written evidence which is not filed in accordance with directions unless it is satisfied that there is good reason to do so.

This appeal has now been listed for a substantive hearing on 3 April 2006. If the specific documents are not filed with the Tribunal 5 working days before the date of this hearing, subject to rule 51(4), the appeal may be determined in the absence of these documents."

The determination

10. The Immigration Judge's determination is dated 26 April 2006. At that date, as already noted, no Explanatory Statement and accompanying documents had been received. The only documentary evidence before the Immigration Judge was that submitted with the grounds of appeal by the appellant himself. The Immigration Judge stated (paragraph 7) that there was no copy of the Visitor Application Form or the documents originally submitted by the appellant. The Immigration Judge noted that the respondent had twice been asked to produce these documents but had failed to do so.
11. The Immigration Judge therefore examined the letter of 31 August 2005, allegedly from Guaranty Trust, confirming that the appellant's father is the sole signatory to a certain account number. She rejected that letter as misspelled, ungrammatical, and failing to mention the company by name. She rejected a supporting notarial certificate as 'of little evidential value' and criticised the appellant's father's personal bank statements as 'poor quality photocopies' (once the Explanatory Statement arrived the reason was clear: the Entry Clearance Officer had the originals). The Immigration Judge was satisfied that –

"11. Having considered the matter de novo, as I am obliged to do, I am satisfied that the respondent was fully justified on the evidence before him in arriving at the decision to refuse the application."

Grant of reconsideration

12. Senior Immigration Judge Storey granted permission for reconsideration because he considered that arguably it was not open to the Immigration Judge to dismiss the appeal on the express basis that the respondent was 'fully justified in refusing his application on the evidence before him' when the respondent had not produced that evidence to the Tribunal to enable such an assessment to be made. The appellant has no United Kingdom representative and this review will therefore be considered on the documents and matters before the Tribunal.

The Explanatory Statement

13. In considering materiality, I have the advantage which the appellant and Immigration Judge did not, of having before me the Explanatory Statement from the High Commission in Lagos. The file now contains two copies of the Explanatory Statement, apparently issued on 14 February 2006. It is unclear when these copies of the Explanatory Statement were sent to, or received by, this Tribunal. I can take that no further: in each case, the Entry Clearance Officer's covering letter is undated and there is no envelope on the file to show when the bundles were sent or received by the Tribunal.
14. The two copies of the respondent's bundle are not identical: one set contains written confirmation from Guaranty Trust that the bank statements relied upon and the letter relating to the claimed company bank account are indeed forged, while the other does not.
15. The Entry Clearance appeals record sheet shows that the appeal was passed to the Entry Clearance Manager on 5 December 2005, reviewed on 26 January 2006, passed to an Entry Clearance Officer to prepare the Explanatory Statement on 3 February 2006, and that on 9 February 2006 someone decided to check the veracity of the bank statements. The reply, that the statements were forged, was received on 13 February 2006 and the Entry Clearance Officer preparing the Explanatory Statement was advised to include that information in the Explanatory Statement on the same date.
16. The Explanatory Statement indicates that 'all relevant annexes indicated below [are] attached'; the Visitor Application Form and student supplementary questionnaire, the form N2 and supporting documents, the form APP200, the college acceptance letter, the sponsor's bank statements and supporting letter and Guaranty Trust bank statement verification. There is no interview record; this application was dealt with by the Entry Clearance Officer on the papers. The Explanatory Statement states that-

"The appellant had sought entry clearance as a student via the courier system. The application was considered on the basis of the statements made on the Visitor Application Form and supporting documents submitted. The Entry Clearance Officer was not satisfied that the appellant met the requirements under paragraph 57 of the Immigration Rules for the reasons set out in the attached notice of refusal (APP200). A copy of all relevant indexes indicated below is attached.

The appellant has appealed against the decision to refuse the application and I have reviewed the application in light of the grounds of appeal.

I note that no fresh compelling evidence has been submitted and, furthermore, evidence has been obtained that proves the sponsor's bank statement to be a forgery.

Whilst I am aware that this was not referred to in the APP200, nevertheless it damages the appellant's credibility and clearly raises doubts regarding how he would pay for the course and maintain and accommodate herself for the duration of his proposed studies.

I am not persuaded to alter the original decision to refuse the application."

[Emphasis added]

17. An undated covering letter in standard form from the British High Commission at Lagos states that –

"I have reviewed the Entry Clearance Officer's decision following receipt of this appeal and carefully considered the grounds. I am satisfied that the decision is correct and in accordance with the Immigration Rules.

Entry Clearance Officers in both Lagos and Abuja are able to assess and decide applications for entry clearance primarily on the information provided in the application form and the documents submitted in support. Entry Clearance Officers may make additional enquiries or reference to local records to assist them in deciding an application. In the minority of cases when 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."

Discussion

18. The Immigration Judge declared herself satisfied that the Entry Clearance Officer was fully justified in refusing entry clearance on the evidence before him, without seeing that evidence. I concur with Senior Immigration Judge Storey in considering that as a plain error of law; the burden of proof is, as the Immigration Judge noted, on the appellant, but in assuming that the evidence before the Entry Clearance Officer 'fully justified' the decision, without seeing it, the Immigration Judge did not apply the standard of balance of probabilities as she should have done. The question, therefore, is whether that rather generous assessment of the Entry Clearance Officer's reasoning was a material error of law on the particular facts of this appeal.
19. It is disappointing that despite directions from the Tribunal, the respondent failed to produce for the Immigration Judge hearing the bundle of documents provided by the appellant against which he made his decision. That has become very common, regrettably, for reasons which are not clear to this Tribunal. It may be said that the burden of proof is always upon the appellant, and that, of course, is right, but when he lodges his application and his appeal at the overseas post, the appellant provides the documents which support the application to the Entry Clearance Officer. He is entitled to assume that the documents, some of which may be important original documents, will be put before the Tribunal with the Entry Clearance Officer's response to his appeal. He can be expected to make available any new documents which have come to hand, but it is difficult to see how he can properly be criticised for failing to send, direct to the Tribunal, documents he thinks are already filed.
20. Where an Immigration Judge is faced with a party's failure to comply with directions, his first question must be whether he has sufficient material before him to enable him to determine the appeal, notwithstanding such failure. The absence of respondent's documents, as in this appeal, causes particular difficulties in assessing whether the decision reached by the Entry Clearance Officer is sustainable in law, but documents submitted by the non-defaulting party may enable the appeal to be determined. Whether that is so in any particular appeal is a question for the Immigration Judge hearing the appeal.
21. If the Entry Clearance Officer disregards the plain (and repeated) direction of the Tribunal to send those documents to the Tribunal in time for the hearing, then he must take the chance of the Tribunal not understanding his reasoning processes and not agreeing with his assessment of the credibility of the appellant, on the basis of documents which are in his hands. Where documents filed by an appellant were apparently genuine and sufficient to sustain his claim, even though (unbeknown to the Immigration Judge) the Entry Clearance Officer had received evidence that some of those documents were forged, it is difficult to see how the Entry Clearance Officer could properly complain of a positive credibility finding by the Immigration Judge on the material which was before him.
22. In the present appeal, that is not the factual position: although the Immigration Judge made a legal error in upholding the Entry Clearance Officer's decision on the express basis of documents which she had not seen, it was in the event immaterial, in that the Immigration Judge's rejection of the Guaranty Trust documents as unconvincing was supported, had she known it, by the letter from Guaranty Trust stating in terms that they were forged. The negative credibility finding was therefore sound, even on the basis of the documents which should have been before the Tribunal, and there was no material error of law in this determination.
23. I uphold the Immigration Judge's decision and there is no need for further reconsideration.

DECISION

The original Tribunal did not make a material error of law and the original determination of the appeal shall stand.

Signed

Dated: 26 January 2007

Senior Immigration Judge Gleeson