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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case Nos: UI- 2023-001665, UI-2023-001666 & UI-2023-001667
	First-tier Tribunal Nos: EA /02476/2023, EA/02477& EA/02478/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

 

Between

 

Muhammad Hammad Zubair (First Appellant)

Bilal Nasir (Second Appellant)

Rehan (Third Appellant)

(NO ANONYMITY ORDER MADE)

Appellants

and

 

Entry Clearance Officer

Respondent

Representation :

For the Appellants: No appearance

For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

 

Heard at Edinburgh on 10 October 2024

 

DECISION AND REASONS

1.              The appellants appeal with permission against the decision of First-tier Tribunal ("FtT") promulgated on 9 November 2023, dismissing their appeals against the decisions of the Secretary of State made on 3 June 2023 to refuse to issue them with family permits under Appendix EU (Family Permit) to the Immigration Rules ("Appendix EU (FP)") on the basis that they are the children aged under 21 of a relevant EEA citizen, Mr Araja Matloob Ahmed ("the sponsor"). The right of appeal in these appeals was under the Immigration Citizens' Rights Appeals (EU Exit) Regulations 2020.

2.              When the matter was called on for hearing, there was no appearance by the sponsor or on his behalf or of that of the appellant. I deferred consideration of the matter until later in the morning, by which point there was still no appearance by the appellant or the sponsor on their behalf. I am satisfied from the court file that due notice of the time, date and venue of the hearing had been given to the sponsor and to the appellants at the address given in the notices of appeal. In all the circumstances, in the absence of any explanation for a failure to attend I was satisfied that it would be fair and in the interests of justice to proceed to determine the appeal in the absence of any representation.

3.              As an aside, it is surprising that the appellant's father has made no attempt to pursue the appeal, given that it relates to his sons' right to enter the United Kingdom,

4.              I accept that there has been a delay in the promulgation of this appeal. This was as a result of matters which came to my attention after a hearing on 8 October 2024 and to which I had drawn the respondent's attention. On that occasion appeals were listed before me in which the sponsor did not attend, and which bore a distinct similarity to the factual matrix in these appeals. The sponsor did not attend on 8 October 2024, or in these three appeals or in two other linked appeals, also listed before me on 10 October.

5.              These were also appeals against the decision by an Entry Clearance Officer to refuse to issue family permits pursuant to Appendix EU-FP where, as here, there is a dispute as to the authenticity of birth certificates supplied and where, as here, documents were supplied from a court in Pakistan purporting to address the issues. On considering the court files, I became aware that in those cases all the sponsors appeared to live at the same address in Motherwell as the sponsor in these appeals. On making further enquiries it transpired that there were a significant number of appeals of a similar nature in which the sponsors were all resident at the same address in Motherwell.

6.              The appellants' case is that they are the children of the sponsor, an EEA national exercising treaty rights in the United Kingdom and who has been granted leave to remain under Appendix EUSS. The Secretary of State refused the applications on the basis that checks made of their birth certificates showed that they had been falsified as shown in Document Verification Reports. Accordingly, the Entry Clearance Officer was not satisfied that the appellants were related to the sponsor as claimed.

7.              The initial grounds of appeal to the FtT are pro forma. They do not add anything of substance.

8.              In the additional grounds, it is averred that after a virus attack on the NADRA database, newly issued corrected certificates were issued, but that the older, incorrected certificates were uploaded in error. There were then court proceedings issued in Pakistan in which DNA testing was ordered, and new birth certificates were issued.

9.              The appellants did not request an oral hearing before the FtT and the appeals were determined on the papers.

10.          The FtT noted [8] that the burden on proving dishonestly lies with the respondent but that the appellants did not dispute that the original documents were not officially recognised by NADRA. It also found:

9. Under Rule EU16(a) of Appendix EU it is proportionate to refuse an application where, whether or not to the applicant's knowledge, false or misleading information, representations or documents have been submitted and the information, representation or documentation is material to the decision whether or not to grant the application.

10. The Appellants contend that they relied on the incorrect birth certificates due to an innocent mistake and that the fault in issuing those certificates lies with the Secretary Union Council Punjab. Whether or not that is the case is not for me to determine in these proceedings. The Appellants essentially admit to being in breach of Rule EU16(a).

11. Whether the court documents submitted by the Appellants, including the DNA evidence, prove that they are related to the sponsor as claimed may properly be considered by the Respondent in any revised EUSS application. Again, that is not for me to determine. However, I note that, as supported by the Respondent's Country Information Note on documentation in Pakistan (including the most recent one issued in March 2020), document fraud in Pakistan is widespread.

11.          The appellants sought permission to appeal on the basis that:

                                                 (i)                 The FtT had erred in concluding that the appellants had submitted incorrect birth certificates; and

                                               (ii)                 had not applied the correct standard of proof and did not consider the appellants' explanations;

                                             (iii)                the appellants were wrongly not given an opportunity to respond to the allegations of deception, a procedural error the judge did not address; and,

                                             (iv)                 the FtT erred in relying on the respondent's assessment of the documents without a verification report.

12.          I granted permission to appeal out of time on a renewed application as I was satisfied that there was a good reason for the delay and as it was arguable that the FtT did not properly consider all of the relevant material in reaching its decision.

13.          I deal with the grounds in turn. There is no merit in ground (i). It was accepted by the appellants that incorrect birth certificates had been provided, hence the need for the court proceedings in Pakistan. For the same reason, there is little merit in ground (iv) given that assessment and the acceptance that incorrect documents had been provided.

14.          With respect to ground (ii), given the acceptance that incorrect documents were supplied, albeit innocently, no issue of burden of proof applies, except insofar as it would relate to intent. Rule EU 16(a) is clear on that point, but there then needed to be an assessment of proportionality which the respondent undertook.

15.          It was however entirely wrong for the FtT not to engage with the explanation for the supply of incorrect documents or engage with the documentary evidence supplied.

16.          There is, however, no merit in ground (iii). It cannot be argued that this is a case which falls within the ambit of Balajigari v SSHD [2019] EWCA Civ 673 as there is a full merits appeal in this case, nor has it been shown that there was a failure to follow policy.

17.          Having determined that that the decision of the FtT did involve the making of an error of law, it is for me to remake it in the Upper Tribunal. The appellants did not attend, nor did the sponsor. They have not engaged in what would appear to them to be a very important appeal if, as is submitted, they are living in difficult circumstances in Pakistan.

18.          I bear in mind that the grounds of appeal in this case are limited by reg 8 of the Immigration Citizens' Rights Appeals (EU Exit) Regulations 2020, that is, whether the decision was contrary to the relevant Immigration Rules or the Withdrawal Agreement. There is no right of appeal on Human Rights Grounds.

19.          I attach little weight to the court documents from Pakistan. It is unclear why they refer to difficulties with a death certificate for the appellants' mother, given that does not appear to be an issue raised in the refusal notices. It is also notable that there is no documentation from NADRA to confirm that an error arose due to a cyber-attack. Equally, it is difficult to attach much weight to the witness statement from the sponsor who has not attended.

20.          I have not been provided with the originals of the newly issued birth certificates, nor has it been made clear to me what the errors were.

21.          With respect to the DNA evidence, I have concerns about the sampler statement in the appellants' bundle at pages 68 to 83. According to the first page there should be 4 with different serial numbers 1793-1123-1 (sponsor), 1793-1123-2 (Muhammad Zubair), 1793-1123-3 (Rehan) and 1793-1123-4 (Bilal Nasir). The form at page 71 is signed by the sponsor but the sections for second and third person tested are blank. Further, the declaration by the sampler at part 6 (page 73) is signed by the appellants, not the person taking the sample. It is also dated 17 July 2022, yet the father's declaration is dated the day after, 18 July 2023. Further, although it is typed on page 75 (a photocopy of the sponsor's passport) that Dr Asim Javed certifies that this is a true likeness of him, there is no signature from Dr Javed but here is a signed stamp from Dr Bilal Hossein. The same has occurred with the copies of the appellants' passports (page 76 to 78).

22.          Further, with respect to the sampling statements and declarations for the three appellants, these are all dated 18 July 2023 yet the letter at page 69 records the items as received on 17 July 2023. And, in each form one of the appellants is the first person to be tested (the form allows for up to three), but at page 81 there is signature by Dr Sameena Iftikhar who from page 68 appears to be the person approving the testing.

23.          Given these anomalies, I am not satisfied that the DNA test result is reliable evidence. Further, as it is relied upon in the court documents, it casts doubt on their reliability also.

24.          Taking all of these factors into account, I am not satisfied that that the appellants have shown that they are related to the sponsor as claimed. In the circumstances, the decisions to refuse entry clearance are in accordance with the relevant rules and are proportionate. I am also satisfied that that the decisions were not contrary to the appellant's rights under the Withdrawal Agreement.

Notice of Decision

1.              The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside.

2.              I remake the appeals by dismissing them on all grounds.

Signed Date: 14 February 2025

Jeremy K H Rintoul

Judge of the Upper Tribunal