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

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-004092

First-tier Tribunal No: HU/52986/3023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE BULPITT

DEPUTY UPPER TRIBUNAL JUDGE RIPLEY

 

Between

 

MADHU PARNA SARKER

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Jones Direct Access Counsel

For the Respondent: Mr Terrell Senior Presenting Officer

 

Heard at Field House on 28 January 2025

 

 

DECISION AND REASONS

Introduction

1.       This is an appeal against a decision of First-tier Tribunal Judge Easterman ("the Judge") dismissing the appellant's appeal by a decision dated 27 February 2024.

Relevant Facts

2.       The appellant is a national of Bangladesh who was granted leave to remain as a Tier 4 student from 2009 until 2012. She made an in-time application for further leave as a Tier 1 entrepreneur in November 2012. That application remained undecided and in January 2019 the appellant varied it to one for indefinite leave on the basis of ten years lawful residence. In January 2022 the respondent sent a minded to refuse letter, made following the conviction for deception in November 2018 and June 2019 of individuals, including the appellant's immigration advisor at Immigration 4U. It was argued by the respondent that the appellant was complicit in that deception. The appellant replied to that letter denying any involvement in a deception however the respondent made an initial decision to refuse the appellant's application on 14 February 2023 pursuant to the general grounds for refusal set out in paragraphs 322(1A) and 322(5) of the Immigration Rules as well as the suitability provisions of Appendix FM. These latter provisions applied as the appellant was in a long-term relationship with a British national.

3.       In the first set of case management directions the Judge invited the respondent to make a clearer supplementary letter of refusal. The respondent went on to draft a supplementary Reasons For Refusal Letter dated 20 September 2023 in which it was accepted that the prior reference to paragraph 322(1A) was erroneous and, that as the deception was in a previous application, the respondent should have relied on paragraph 322(2), as well as paragraph 322(5). The application was also refused pursuant to paragraph 276B(ii)(c) and (iii).

4.       The appellant's appeal against that decision was listed for hearing in November 2023. The hearing was converted to a case management review and the Judge made further directions which included his provisional opinion of the evidence and directed the respondent to file any further evidence upon which they wished to rely. The hearing was later reconvened, and the Judge went on to determine the appeal on 27 February 2024 in the First-Tier Tribunal decision the appellant is seeking to challenge in this appeal to the Upper Tribunal.

The Judge's decision

5.       The Judge heard the appellant's appeal on 22 January 2024 and issued a decision dismissing it on 27 February 2024. The Judge has set out the documentary and oral evidence and submissions of both parties in some detail. He then went on to set out the reasons why he did not accept the appellant's account that she was unaware of her adviser's dishonesty and found the general grounds of refusal to be satisfied. Finally, the Judge addressed the insurmountable obstacles test and the suitability provisions of Appendix FM finding that there would not be insurmountable obstacles to the appellant's relationship with her British partner continuing outside the United Kingdom and that the appellant did not meet the relevant suitability requirements.

Grounds of Appeal and grant of permission

6.       The application for permission to appeal in effect comprised four grounds

(i)                  Wednesbury unreasonable/irrational conclusion on dishonesty. This concerned the Judge's failure to explain why he had departed from the position expressed in the directions of 6 November 2023 that there was a lack of evidence to support the allegation of deception. It was noted that the respondent had not provided any further evidence following those directions.

(ii)               In the second ground, the appellant makes essentially the same point but under a different hearing, that of procedural impropriety and decision impossible to understand.

(iii)             Thirdly, the Judge erroneously considered the insurmountable obstacles test which was not relevant to the appellant.

(iv)             Fourthly, the Judge erroneously failed to distinguish between the suitability criteria of Appendix FM and the general grounds of refusal.

7.       In a decision dated 18 November 2024 permission was granted by Upper Tribunal Judge Rastogi on all grounds. She observed that the Judge, in departing from the indication given in the November directions, needed to give adequate reasons and identify the evidence upon which the respondent relied to discharge the burden establishing deception, and his failure to provide sufficient explanation was arguably irrational. Upper Tribunal Judge Rastogi also found that the Judge had arguably failed to follow the three-stage process set out in SM and Qadir ( ETS - Evidence - Burden of Proof) [2016] UKUT 229.

8.       In a reply dated 3 December 2024 the respondent defended the Judge's decision stating that his conclusions followed him hearing the appellant's evidence and against a background of a fraudulent scheme operated by her advisors. The Judge had provided adequate reasons setting out that deception was established, despite his direction in November 2023.

Submissions

9.       Ms Jones relied on her skeleton and submitted that the respondent's decision letter was not clear. The appellant disputed that she had been dishonest or had acted fraudulently. There was a lack of evidence to support those allegations. She maintained that the suitability provisions in Appendix FM were different from the general grounds of refusal.

10.   Ms Jones submitted that the appellant did not understand why the Judge had changed his mind between November 2023 and February 2024. There was little evidence of dishonesty before him and that was the Judge's opinion in November. The Judge had regard to the insurmountable obstacles test although this did not apply because the appellant was in the UK lawfully. The Appendix FM suitability criteria concerned the appellant and the sponsor, and not just the appellant.

11.   Mr Terrell submitted that Immigration 4U were convicted of creating false businesses. The Judge had had regard to the appellant's response to the minded to refuse letter and the appellant's supplementary statement.

12.   Mr Terrell further submitted that in his directions of November 2023 the Judge was making a provisional observation on the evidence. He referred to his difficulty with the original refusal decision at [90] of his decision. The wording of paragraph 2 of the directions made on 6 November 2023 was that there was little or no evidence in the respondent's bundle to support the allegation of misrepresentation. However, the appellant did not dispute that the contents of her Tier 1 application did comprise a misrepresentation. The Judge had made it clear in his decision that the issue for him to determine was whether the appellant knew that her advisor was seeking to deceive.

13.   In relation to the point raised by Upper Tribunal Judge Rastogi concerning SM and Qadir, Ms Jones stated that the Judge should have started by identifying the deception established by the respondent. Mr Terrell submitted in reply that the guidance given in SM and Qadir had been overtaken by the Tribunal's decision in DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 112 IAC and that the Judge set out the correct burden at [9] of his decision. The Judge was clearly satisfied that there was a case for the appellant to answer. The application made by the appellant was fraudulent and that comprised a prima facie case. The Judge set out his reasons for finding that the appellant had been dishonest from [92] of the decision onwards and those reasons were cogent. The Judge's unnecessary consideration of the insurmountable obstacles test was not a material error. He would have needed to consider the same issue in an Article 8 assessment in any event.

14.   Mr Terrell submitted it was difficult to see how the appellant would not fall foul of paragraph S-LTR.1.6 in Appendix FM, if she had been found to satisfy paragraph 322(5). There was no significant difference between the two tests. Even if the appellant's husband's circumstances should have been considered in the exercise of discretion, the Judge found that they could live together in India in any event.

15.   In reply Ms Jones submitted that nothing had changed after the November 2023 direction had been made. The appellant's full explanation was already before the Judge. There was different wording in paragraph 322(5) and S-LTR.1.6. The former referred to the undesirability of permitting an individual to remain and the latter to whether their remaining was conducive to the public good.

Discussion

Grounds one and two

16.   Paragraph 2 of the November 2023 direction states as follows:

In their decision (the) respondent alleges misrepresentations were made in the application, on the back of a criminal prosecution of a number of people, including the OISC representative of the appellant. At present there is little or no evidence in the respondent's bundle to support the allegation. The respondent also apparently relies on the misrepresentation and an "undesirable association" with the OISC representative, as breaching the suitability requirements.

17.   At paragraph 3 of the direction the Judge went on to state that the burden was on the respondent, and this was their final opportunity to produce evidence that they wished to rely on to support the allegation of dishonesty.

18.   It is accepted that neither the respondent nor the appellant provided any further documents after that direction was made and before the hearing on 22 January 2024.

19.   The primary submission made by the appellant is that the Judge has failed to set out why he was not satisfied that the respondent had established the appellant was dishonest in November, but came to a contrary conclusion after the appeal hearing. The appellant is not arguing that the Judge could not change his mind, but additionally argues that it was irrational for the Judge to reach a contrary conclusion.

20.   Although it may be preferable, we do not accept that the Judge was required to set out in the decision why he may have originally reached one conclusion on his preliminary reading of the papers and then reached another conclusion after a full hearing, having reconsidered the evidence, heard the appellant's oral evidence and heard submissions from both parties. A Judge is required to adequately reason the conclusions that he reaches, but we are satisfied that he is not required to explicitly provide reasons for departing from a different view of the case that he may have held before the hearing.

21.   At [18] - [62] the Judge sets out a detailed account of the appellant's case and submissions. The appellant's case was that she knew nothing about the business that she was supposed to be investing in, and had never met the person that she was supposed to be entering into business with.

22.   At [92] of the decision the Judge sets out that he has spent considerable time considering his decision. The Judge goes on to explain that he does not accept that the appellant made the application for a Tier 1 application without appreciating that she simply did not meet the requirements of such a application. In the following paragraph he relies on the respondent's observation of the appellant's educational attainment, which would have made it less likely that she would not have appreciated the dishonesty of the scheme she was entering into. She would have known that she did not have the £26,500 which she was purporting to invest into a company. The Judge places weight on the appellant not knowing and never having met the person she was purporting to enter into business with. At [95] the Judge refers to the fact the appellant had to sign a form declaring that she was investing over £26,000 into a business and she would have known that she did not have those funds and knew nothing about the business. At [96], the Judge sets out that he does not accept that the appellant would have had to pay the going rate for immigration advice that involved the use deception by her advisors.

23.   Between [92] and [98] the Judge repeatedly states that he does not find the appellant's explanation that she knew nothing about the deception and trusted her advisors to be credible. We accept Mr Terrell's submission that the Judge has given in these paragraphs a full explanation for his reasons for finding the appellant to be dishonest.

24.   The appellant also relies on the same background to argue that the decision was unfair and suffered from procedural impropriety. Ms Jones placed weight on the fact that the Judge had expected the hearing to proceed in November and therefore would have thoroughly prepared for the hearing and had been fully conversant with the evidence. That may be, and he may have formed a preliminary view on that basis in November, but it was entirely open to him on further consideration of the evidence to come to a different conclusion after a full hearing where the allegation of deception was the central issue and where the Judge heard oral evidence and detailed legal submissions.

25.   The actual wording of the second paragraph of the Judge's direction in November 2023 refers to the respondent's allegation of misrepresentation in the application and that there is little or no evidence to support that allegation. At [102] of his decision the Judge stated that it was not "really contested" that false information was provided on the application. Thus, if paragraph 2 is read precisely, the appellant herself had not disputed that there was misrepresentation and thus, should not have been surprised that the Judge ultimately found that the respondent had established the same.

26.   Finally, it is important to note that the appellant has not argued that she was in some way misled by the directions that the Judge made in November and for that reason did not file evidence that was available to her or make alternative submissions that she mistakenly thought were unnecessary. She has not submitted that she had relied on the indication of the November 2023 direction to her detriment.

27.   In relation to the burden of proof that was raised by Upper Tribunal Judge Rastogi, we accept, again, that it may have been preferable for the Judge to have clearly identified the evidence upon which he was satisfied that the respondent had a prima facie case, before going on to address the appellant's response to those allegations. Nonetheless we return again to [102] of the Judge's decision where it is recorded that it was not "really contested" that there had been misrepresentation in the appellant's original application. As the Judge sets out at length, the appellant's argument was not that the information in her application was not fraudulent, but that she did not know that it was. In this case it is clear that there was a prima facie case for the appellant to answer and that is how the hearing proceeded. The Judge correctly identifies at [9] of his decision that the burden of establishing dishonesty was on the respondent and that the standard of proof was the usual civil standard. Having considered the appellant's written and oral evidence, the Judge has set out his reasons for not accepting the appellant's explanation that she knew nothing about the deception and that she had been herself the victim of unscrupulous immigration advisors. We are not satisfied there was any error in the application of the burden or standard of proof. In the interest of clarity, it was confirmed in DK and RK (ETS: SSHD evidence, proof) [2022] UKUT 112, as well as Varkey & Joseph (ETS - Hidden rooms) [2024] UKUT 142, that it was not necessary to carry out a three-stage test as set out in SM Qadir.

Ground three

28.   We are not satisfied that it was a material error for the Judge to consider whether there were insurmountable obstacles to the appellant and her partner living together in India prior to considering whether the appellant fell foul of the suitability provisions of Appendix FM. As argued by Mr Terrell, the Judge would have needed to consider the obstacles to the relationship continuing outside the United Kingdom within the context of an Article 8 assessment in any event, and we are not satisfied that his doing so before he considered suitability prejudiced the appellant. In fact, to the contrary, it could be said that this meant he had considered the appellant's family circumstances in relation to the exercise of discretion applicable to the suitability criteria.

Ground four

29.   Turning to the particular wording of the relevant general grounds for refusal and the suitability provisions, these are as follows:

•          Paragraph 322(5) states: The undesirability of permitting a person concerned to remain in the United Kingdom in the light of his conduct, including convictions which do not fall within paragraph 322(1(c)), character or associations or the fact that he represents a threat to national security.

•          Paragraph 276B(ii) states: having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:

(a) - (b) not relevant.

(c) personal history, including character, conduct, associations and employment record; and

•          Paragraph S-LTR.1.6 states: The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions...), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.

•          Paragraph S-LTR.4.2 states: The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or variation of leave, or in a previous human rights claim.

30.   As will be seen the provisions of S-LTR.1.6 provide for a mandatory refusal of an Appendix FM application where the appellant's presence is not conducive to the public good because their conduct makes it undesirable to allow them to remain. We are not satisfied that in considering the application of that mandatory ground of refusal the respondent or the Judge is required to take into account the appellant's family circumstances. It may be that the conduct itself renders the appellant's continued presence undesirable. S-LTR.1.6 does not state that the conduct needs to be considered within the context of the appellant's claimed family life. Nonetheless, and as set out above, the Judge did consider the appellant's family life at [106 - 108] before proceeding to consider the application of the suitability provisions.

31.   Paragraph S-LTR.4.2 is a discretionary suitability ground under Appendix FM. Although the Judge has found that the applicant has made false representations, it is accepted that the application of paragraph S-LTR.4.2 should be considered against the strength of the appellant's family life. The Judge finds that although the Appendix FM suitability criteria may address a different factual background, that the discretion was not wrongly exercised and, in applying the discretion himself he would not exercise it any differently. This was a finding reasonably open to the Judge

32.   In setting out the general grounds for refusal and the suitability provision, it is clear that 276B(ii), Paragraph 322(5) and S-LTR.1.6 all refer to undesirability. We accept the Judge's conclusion, and Mr Terrell's submission that there is no significant distinction between these provisions. If the conduct was found to be undesirable for one of those provisions, there is no reason why it should not fall foul of one of the others. We are in no doubt that, having found the appellant was complicit in the deception that was involved in her application for further leave to remain, the Judge was entitled to find that the appellant failed to meet the relevant suitability requirements of the different parts of the Rules.

33.   For all the above reasons, we do not find the appellant able to show that the Judge has made an error of law, and certainly not one that was material to the outcome.

 

Notice of Decision

34.   The decision of the FtT does not contain an error on a point of law so the decision stands.

 

F Ripley

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

11 February 2025