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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case Nos: UI- 2024-001912 & UI-2024-001913
	First-tier Tribunal Nos: EA/02010/2023 & EA/02011/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

UPPER TRIBUNAL JUDGE MANDALIA

 

Between

 

RAJA ZOHAIB HASSAN

SUBHAN ARSHAD

(NO ANONYMITY ORDER MADE)

Appellants

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellants: No appearance

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

 

Heard at Edinburgh on 28 November 2024

 

DECISION AND REASONS

1.              The appellants appeal with permission against a decision of the Entry Clearance Officer to refuse to issue them with family permits under Appendix EU (Family Permit) on 17 April 2023.

Background

The applications

2.              The appellants born on 8 July 2002 and 5 October 2005 respectively are the sons of Mr Shabbir Khan Begum ("the sponsor"), a Spanish citizen born on 8 July 1976. On 14 December 2022 they applied for an EU Settlement Scheme family permit under Appendix EU (Family Permit) to the Immigration Rules ("Appendix EU(FP)") on the basis that they are the minor sons and therefore the family members of a relevant EEA citizen.

3.              The respondent refused both applications on the basis that the appellants had provided false or misleading information in support of the application. That is, she made checks with the relevant Pakistani authorities who confirmed that the birth certificates supplied with the applications were false. The respondent considered that this false or misleading information was material as the relationship between the appellants and the sponsor could not be confirmed by the evidence provided and thus the suitability eligibility requirements for leave under Appendix EU(FP) were not met. The respondent also considered that the decision to refuse the application was proportionate.

Procedural history

The grounds of appeal to the First-tier Tribunal

4.              In the grounds of appeal to the First-tier Tribunal it is averred that the appellants and sponsor contacted the Union Council which is responsible for registering and issuing birth certificates in Pakistan, and discovered that the authorities had in fact submitted details of the birth into the central database system but that owing to computer error, the details were not correctly recorded in the central database system. This, it is said explains the apparent defects in the birth certificates.

5.              It is also averred that the appellants lodged a civil suit in the Pakistani courts against the Union Council which, in response, stated that the birth certificate had been issued to the appellant correctly but confirmed that due to a computer system error the details were not uploaded to the central database properly which is why checks indicated that the birth certificates were false. It is stated, at paragraph [10] of the grounds that new birth certificates had been issued, copies of which were attached to the grounds and that these, together with the documents from the Union Council, the court documents and DNA tests results, must be taken into account

6.              It is also averred that false documents were not submitted; that the original certificates were submitted with the application but were rendered void due to computer problems with the Union Council; that no false documents had been supplied; and, further, that in line with Balajigari v SSHD [2019] EWCA Civ 673, the appellants ought to have been contacted to give them an opportunity to explain the apparent difficulties before the refusals were issued.

7.              In both appeals, the appellants served bundles containing documents from the court cases in Pakistan as well as DNA test results from Unique Medical Lab.

Proceedings before the First-tier Tribunal

8.              The appellants did not request an oral hearing. The appeal was then considered on the papers by First-tier Tribunal Judge Reed who, for the reasons set out in a decision promulgated on 7 September 2023 dismissed the appeal.

9.              On 21 December 2023 Resident Judge Holmes set that appeal decision aside pursuant to Rule 32 of the First-tier Tribunal Procedure Rules on the basis that the judge had not taken into account a bundle of 140 pages which had been served. It was that bundle that contained the documents referred to at [5] above.

10.          The appeal then came before First-tier Tribunal Judge C L Taylor who dismissed the appeals for the reasons set out in a decision dated 30 January 2024. It is against that decision which these appeals lie.

11.          Judge Taylor found that the documents relating to the civil suit brought in Pakistan were neither genuine nor reliable [11] and, given anomalies in the DNA test result documents, found that these were neither genuine nor reliable [12]. Noting that no document verification report had been provided [13] the judge did not find the birth certificates were fraudulent. Equally, the judge was not satisfied they were genuine or reliable given the concerns about the court documents and the DNA test results. The judge dismissed the appeal on the basis that the appellants had not established that they are family members of the sponsor [14].

The application for permission to appeal to the Upper Tribunal

12.          The appellants then sought permission to appeal. The appellants claim Judge Taylor had erred in rejecting the documents relating to the civil suit and in rejecting the DNA tests results. They claim that the sole issue in the appeal is whether the birth certificates relied upon are authentic and have been issued by a competent authority [6]. The appellants claim the DNA test results conclusively establish that the appellants are the children of the sponsor and thus should be allowed to come to the United Kingdom to stay with their father.

13.          On 23 May 2024 Upper Tribunal Judge Perkins granted permission to appeal noting that the grounds purported to address issues which did not feature in the decision under challenge; that the decision complained of was not the decision of First-tier Tribunal Judge Hands; and, permission was not refused by First-tier Tribunal Judge Gibbs. Judge Perkins did, however, note that:

"It is however, at least arguable that the deciding Judge did not have a bundle that the Appellants thought would be considered and, arguably, should have been.

It will be helpful if both parties are able to show the Upper Tribunal what documents they thought were before the First-tier Tribunal and their reasons for so thinking.

As I have no idea what has actually happened here I formally give permission on each ground but my main reason for granting permission is that I suspect that there has been a procedural irregularity amounting to an error of law ".

Pre-hearing Directions

14.          On 11 September 2024 Upper Tribunal Judge Mandalia gave further directions in addition to the standard directions in this case observing that there appeared to have been a prior appeal, under the same appeal numbers determined by First-tier Tribunal Judge Reed and dismissed for reasons set out in a decision promulgated on 7 September 2023. It was observed that:

 

i)               Paragraph 1 of the Grounds of Appeal appear to refer to a different decision of the FtT altogether.

ii)             The second paragraph '1' under the hearing 'Chronology of Facts' refers to an appeal by Mr Moeez Nadeem, an individual who appears to have no connection to the appeal before the FtT and now, Upper Tribunal.

iii)           The relevance of paragraph [4] of the Grounds of Appeal to this appeal is neither apparent nor explained.

15.          Judge Mandalia then directed that the appellants' representatives confirm which decision was the subject of the appeal before the Upper Tribunal; to serve a chronology in respect of the applications for a family permit; and, to file and serve a witness statement identifying the evidence and documents relied upon by the appellants before the First-tier Tribunal in respect of the decision now under appeal, confirming when and how those documents were sent to the First-tier Tribunal.

16.          There has been no compliance with the directions issued by Judge Mandalia.

The Hearing on 28 November 2024

17.          When the appeals were called on for hearing at 10 a.m., there was no appearance by the sponsor or on behalf of him or the appellants. No explanation had been given for the failure to attend or, for that matter, a failure to comply with directions issued in this case. Having deferred consideration of the matter there was still no appearance nor explanation for the failure to attend by 11 a.m.

18.          We were satisfied that due notice of the time, date and venue of the hearing had been served on the sponsor and on the appellants at the addresses given on the appeal form. We were satisfied in all the circumstances of this case and applying the principles set out in Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC that it would be fair and in the interests of justice, bearing in mind the overriding objective, to proceed to hear the appeal.

19.          We explained in court that we are aware that a substantial number of appeals against decisions to refuse family permits under Appendix EU (FP) in remarkably similar circumstances had been brought before the FtT and Upper Tribunal. A common theme that has emerged is that the sponsor in those appeals lives at the same address in Motherwell as the sponsor in this case. Birth certificates and in some cases, other documents had been rejected by the respondent as not being genuine, subsequent to checks made with the Pakistani authorities. In many if not all the appeals, the explanation proffered by the appellants for the checks showing the documents not to be genuine was the same as in this case: the appellants had discovered that the authorities had in fact submitted details of the birth into the central database system but that owing to errors, the details were not correctly reflected in the central database system. Remarkably, in these cases, lawsuits against the Union Council had also been brought, the Union Council in each case accepting fault, and issuing new certificates. In many of the cases, DNA test results confirming the relationship between the appellants and the sponsor were also provided.

20.          Ms Blackburn made brief submissions. Ms Blackburn submitted that the appeal should be dismissed as the appellant had failed to make good the grounds of appeal. We reserved our decision.

Discussion

21.          It is accepted in the grounds of appeal [2] that the impugned documents did contain errors, but the explanation given is that this is due to errors made in the process of uploading data as explained in the court documents relating to the case brought against the relevant Union Council in Pakistan. The judge rejected that explanation, finding the court documents were not reliable and referred to a number of anomalies.

22.          We consider that the judge was entitled to note that the heading of the case in the court documents from Pakistan was a copy and there were no original documents provided. The heading of the case appears in a rectangle which is significantly different in colour from the rest of the document but that is not the only reason why the judge rejected them. We consider he was entitled to observe that the document, entirely like the heading, had been copied and pasted onto the original. We consider therefore that he was entitled to reject them as not being capable of bearing weight.

23.          The judge rejected the DNA test results. He did so for the following reasons:

12. The DNA test result documents also contain some anomalies. The heading of the test results refers to the company as Unique Medical Lab, with a footer recording an address in Lahore. The DNA sampler details refer to Anglia DNA which is a different, UK DNA company. These sampler details are recorded on the letterhead for Unique Medical Lab. No explanation as to why Anglian DNA would be recording the taking of samples on the letterheaded paper of a different DNA company has been provided. The signature of the person tested on p80 of the appellant's bundle does not match the sponsor's signature in his passport. The signature box on page 81 for the person tested is signed, however no other details have been provided in that section. The names of the appellants appear in the signature box for the sampler on page 82 of the bundle. Given these anomalies, I do not accept that the DNA test results are genuine or reliable.

24.          The explanation for the apparent anomaly is set out in paragraph 5 of the grounds of appeal.

5.        In addition, FtJ has raised concern in regard to the DNA testing result pointing out that the DNA test result has address of a UK company i.e. Anglia DNA. The Appellants has provided a letter from Anglia DNA confirming that Unique Medical Lab is affiliated with the Anglia DNA who collects sample in Pakistan and process the samples on behalf of the Anglia DNA. Therefore, the anomalies that has been pointed out by the FtJ is simple misunderstanding. We do not consider that this is a sufficient explanation. The judge did not state that the DNA test results has an address of a UK company and the reporting on the test is carried out in a letter from Unique Medical Lab.

25.          We have not been provided with the letter from Anglia DNA but, in any event, for the reasons set out below, the claimed relationship between Anglia DNA and Unique Medical Lab does not cast doubt on the conclusions reached due to the anomalies in the forms said to provide confirmation of how the samples were obtained both as to checking of identity documents and consent.

26.          Having had regard to the DNA testing documents, we note that the letter from Unique Medical Labs which is stated to be based in Lahore, and is addressed to the secretary of the Union Council, sets out that samples were taken from the claimed father (the sponsor) and the appellants by way of mouth swabs which were received on 2 June 2023. The documents include forms to be completed, setting out when the samples were obtained, the document checks made and the persons consenting to the process as well as details to be provide by the person taking the sample.

27.          We have considered the forms carefully. In respect of the sample taken from the sponsor, his signature is in block capitals, but the form is not completed by the second person who was tested nor are names given for the third person tested which gives a signature which is significantly different from the sponsor. No details are given of the ID documents checked. There appears to be a second part of the testing form. A copy of this form appears at page 44 of the 140 page bundle submitted. We note also that the signatures on this form (page 46 of the bundle) bear the names of the appellants rather than the sampler which is what was required and are dated 3 June 2023 which is inconsistent with the statement that they were received on 2 June 2023. A further copy of part of the DNA test application form appears at page 51 of the bundle but has not been completed but does bear or appears to bear stamps issued by the court in Pakistan. The sampler's declaration is signed but on 3 June 2023.

28.          Additionally, another copy of the testing form appears at pages 80 to 81 of the bundle but again details of the second and third person tested are not completed and on this occasion the person tested signed on 2 June 2023. At page 82 the appellants appear to have signed rather than the sampler and again this is signed on 3 June 2023. As Judge Taylor observed, there is a declaration and consent to be signed by the person tested which appears in respect of each person tested and states materially:

"I have read Anglia DNA's Code of Practice. I have given my consent for the enclosed sample to be taken, a DNA profiling test to be carried out by Anglia DNA for the purpose of relationship testing and the Test Report and copies of supporting documents (including identification documents, photographs and consent forms) to be issued to the Nominated Person and other authorised persons where appropriate (as specified in Anglia DNA's Code of Practice)".

29.          In the light of these anomalies, and the anomalies in the completion of the forms set out above at [24] to [26] we consider that the First-tier Tribunal was manifestly entitled to conclude that the DNA test results were not reliable.

30.          Contrary to what is averred in the grounds of appeal, we consider that the judge did not err in law in concluding that the appellants had not demonstrated to the civil standard that they are related to the sponsor as claimed and was entitled to attach no weight to the DNA test results.

31.          Accordingly, for these reasons, we consider that the decision of the First-tier Tribunal did not involve the making of an error of law and we uphold it.

Notice of Decision

1.              The decision of the First-tier Tribunal did not involve the making of an error of law and we uphold it.

Signed Date: 13 February 2025

Jeremy K H Rintoul

Judge of the Upper Tribunal