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![](/images/contextdown.png)
|
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.
- 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
.
- 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
.
- 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'.
- 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.
- 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
- 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."
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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.
- 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.
- 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.
- 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]
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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