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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 >> HU110842019 [2021] UKAITUR HU110842019 (6 October 2021)
URL: http://www.bailii.org/uk/cases/UKAITUR/2021/HU110842019.html
Cite as: [2021] UKAITUR HU110842019

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/11084/2019

 

 

THE IMMIGRATION ACTS

 

 

Heard at George House, Edinburgh

Decision & Reasons Promulgated

On 8 September 2021

On 06 October 2021

 

 

 

Before

 

UT JUDGE MACLEMAN

 

 

Between

 

YONGJIE MAO

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

For the Appellant: Mr A Caskie, Advocate, instructed by Katani & Co, Solicitors

For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

 

 

DETERMINATION AND REASONS

1.              FtT Judge Buchanan dismissed the appellant's appeal by his decision promulgated on 3 February 2020. That was set aside by the decision UT Judge Rintoul, promulgated on 27 October 2020, which is to be read herewith. Pursuant to a transfer order made on 4 January 2021, the case came before me for remaking of the decision of the FtT.

2.              The primary facts were not disputed at the hearing.

3.              In an application to the respondent (UKVI) dated 5 April 2011 the appellant stated earnings from 1 May 2010 to 28 February 2011 of £35,764.

4.              On 27 January 2012 the appellant declared to HM Revenue and Customs (HMRC) of £5,700 for the tax year 2010 - 11.

5.              In an application to UKVI dated 11 June 2013 the appellant stated total earnings of £36,080.

6.              On 31 January 2014 the appellant declared net profit of £0.00 to HMRC for 2012 - 13.

7.              On 28 December 2015 the appellant amended her net profit to HMRC for 2012 - 13 to £21,378.

8.              On 16 June 2016 the appellant applied for indefinite leave to remain as a tier 1 general migrant. She amended that on 22 December 2018 to an application based on long residence.

9.              On 18 December 2016 the appellant amended her net profit to HMRC for 2010 - 11 to £35,764.

10.          Due to concerns over her financial declarations, the appellant was interviewed by the respondent on 18 January 2017. Her explanation was that she made a mistake due to lack of knowledge of the tax system and, to save money, she did not have an accountant at the time.

11.          The respondent refused the appellant's application on 14 June 2019, based, in terms of paragraphs 276B and 322(5) of the immigration rules, on the undesirability of permitting her to remain in the UK in the light of her conduct and character.

12.          The respondent's decision, at page 5 of 12, says that the appellant's explanation has been considered, but it was her responsibility to ensure tax was paid and to engage an accountant if necessary, and "The fact that you wanted to save money does not excuse you from this responsibility".

13.          In the next paragraph, at page 6, the decision says that the appellant's explanation is "not accepted", without further comment. It is held that the appellant either misrepresented her earnings to HMRC to reduce her liability, or gave false information to UKVI to obtain leave, or both.

14.          The appellant's fuller explanation in course of her appeal is that an anticipated business expense of £30,000 was included in her accounts, legitimately, although not yet incurred; the related transaction fell through; the item was mistakenly carried forward; and the matter was later identified and corrected.

15.          Mr Caskie submitted that some element of discrepancy could be explained by the differences between the reporting periods. There are differences between the intervals for which income needs to be stated to HMRC and to UKVI, but I am unable to see any relevance in this case.

16.          The principal oversight which led to the decision of the FtT being set aside was that there was evidence of the existence of the proposed transaction and of the initial expense to which the appellant would be put. This is in the form of an email from a Singapore company, KS Logistics, about a proposed business trip, with a budget of £30,000 to be covered initially by the appellant. This arrangement was cancelled "at the last minute in June 2011".

17.          Mr Diwnycz accepted that given the lapse of time, it was not adverse to the appellant that she had not produced original working papers or Excel documents underlying her declarations; and he did not dissent from the observation of Judge Rintoul that use of a spreadsheet as a template might explain how a figure was carried over in error from one year to another.

18.          As Mr Caskie observed, the explanation fits closely with the discrepancies; but that does not remove all doubt.

19.          The crucial question may be taken from Balajigari [2019] 1 WLR 4647 at [35]: whether the discrepancies are the result of dishonesty, or of "mere carelessness or ignorance ... Errors so caused are, however regrettable, 'genuine' or 'innocent' in the sense that they are honest, and do not meet the necessary threshold".

20.          If the appellant engaged in deliberate fraud, that was by inserting and maintaining in her tax returns a liability which was never incurred. It is adverse that the matter was not corrected for quite some time, and was repeated in future years.

21.          The analysis in the respondent's decision is weak. At page 5, it appears to accept that the explanation might be true; and if so, failure to state income accurately and to employ an accountant does not reach the threshold required. Beyond that, at page 6, the decision is framed as if the discrepancies speak for themselves.

22.          In some instances, the figures and the timing may be such that nothing else really needs to be said, particularly where it is the respondent who brings discrepancies to light; but this case is not at that extreme. While it is problematic whether a genuine error is likely to have been perpetuated for as long as claimed, it is possible, and the first correction was made 6 months before the application leading to these proceedings. The discrepancies were not simply discovered by the respondent.

23.          There was enough before the respondent to draw an initial inference of dishonesty, but, based on on all the evidence and submissions, I am not satisfied that the discrepancies which the appellant disclosed were due to dishonesty rather than to careless error.

24.          Mr Caskie made an alternative submission that even on an adverse finding on financial declarations, the appeal should succeed on the article 8 rights not only of the appellant but of her partner and UK citizen child. There is a second stage to the analysis, but the appellant has not shown anything by which, on a finding of dishonesty, it would be disproportionate to expect her to return to China.

25.          The decision of the FtT has been set aside. It has not been established that the appellant should be refused leave for undesirability in terms of paragraph 322(5) of the rules. The respondent does not suggest that her application failed to meet any other requirement, so it would otherwise have succeeded in terms of the rules. It follows that the decision is remade by allowing the appeal, as originally brought to the FtT, on human rights grounds.

26.          No anonymity direction has been requested or made.

 

 

 

9 September 2021

UT Judge Macleman

 

 

 

 

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal's decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts , the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A "working day" means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is "sent' is that appearing on the covering letter or covering email.


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