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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004738
	First-tier Tribunal No: EU/50473/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 26 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE KAMARA

DEPUTY UPPER TRIBUNAL JUDGE L.C. CONNAL

 

Between

 

MARTA SUCHOCKA

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Attended in person

For the Respondent: Mrs Arif, Senior Home Office Presenting Officer

 

Heard at Field House on 16 January 2025

DECISION AND REASONS

Introduction

1.               The Appellant has been granted permission to appeal the decision of First-tier Tribunal Judge Buckwell (the "Judge") promulgated on 26 August 2024 (the "Decision"), following a determination on the papers, in which the Judge dismissed the Appellant's appeal against the Respondent's refusal of leave to remain under Appendix EU of the Immigration Rules.

2.               Permission to appeal was granted by Upper Tribunal Judge Hirst on 5 November 2024.

Factual Background

3.               The Appellant is a national of Poland, born in 1981. On 1 August 2023, the Appellant applied for leave to remain under the EU Settlement Scheme, based on her claimed period of residence in the United Kingdom. The Respondent refused the Appellant's application in a decision dated 16 January 2024, which is the subject of this appeal. The Respondent found that:

a.        The Appellant did not meet the suitability requirements in EU16 of Appendix EU because she had provided false or misleading information, representations or documents which were material to the decision and it was proportionate to refuse her application. The Respondent's position included:

                                                              i.       In relation to the Monese bank statement covering the period 1 June 2020 to 31 December 2020 (the "Monese Bank Statement"), checks had been conducted with Monese bank who had confirmed that this document was false; and

                                                            ii.       In relation to the EBICO energy bills dated between February 2020 and February 2021 (the "Utility Bills"), the Respondent had concerns they might be false as the documents matched indicators the Respondent considered made the documents non-genuine.

b.       The Appellant did not meet the relevant eligibility requirements set out in EU11/EU11A or EU14/EU14A of Appendix EU because, while it was accepted that the Appellant had been in the UK from February 2023 onwards, the Appellant had not provided any additional evidence to show that she was in the UK and Islands prior to the specified date as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020).

The decision of the First-tier Tribunal

4.               The Judge found that the Respondent had discharged the burden of proof with respect to the Monese Bank Statement (although not in relation to the Utility Bills), and that the Appellant's application had been correctly refused with reference to suitability grounds. In light of that finding, the Judge did not proceed to consider the eligibility criteria.

The appeal to the Upper Tribunal

5.               The grounds of appeal, upon which permission was granted, are that the Judge had no, or no sufficient, evidence to support his decision and/or did not give adequate reasons for that decision, in particular as to why the Appellant's evidence of residency was not accepted and reliance was only placed on the Respondent's statements which, it is submitted, were not supported by evidence. The grounds also state:

"The decision was made based on the Home Office statements that only states as follow:

1) stated as a false bank statement were provided - this HO statement by Law were not proven by the Home Office Nor the First Tier Tribunal

2) the utility bills could not be relied upon - by Law No explanation or No evidence were provided to proof and explain why these Utility Bills cannot be relied upon.

3) The national express ticket by Law was Not taken to account or into consideration at all and No clear and sensible explanation were given to why those evidence were omitted / ignored".

6.               Permission to appeal was granted on the basis that it was arguable that, given the importance of an allegation of dishonesty and the need for procedural fairness in a refusal on those grounds, the Tribunal did not give adequate reasons for accepting the Respondent's assertion as to the falsity of the Appellant's bank statement without sight of the document in question (the permission grant noting that the Respondent had not filed or served the response from the bank to the Respondent's verification request), and that the Judge acted unfairly in doing so.

7.               The Respondent filed a Rule 24 response dated 18 November 2024. In it, the appeal was opposed. The Respondent submitted, among other matters, that:

a.        The Judge directed himself appropriately.

b.       The permission grant erred in concluding that the Judge had no documents regarding the allegation of fraudulent documentation against the Appellant because the Respondent had uploaded the document verification report (the "DVR") to the online case management platform on 2 July 2024, and the Judge therefore clearly had this in front of him when the decision was made on 12 August 2024.

c.        The Appellant was clearly aware of the allegations made against her. The Appellant had failed to address the issue in her further evidence to the Tribunal, and she had also chosen a paper hearing thus denying her the opportunity to present oral evidence.

d.       There could be no unfairness when the Judge had the evidence in front of him and the Appellant had failed to address any of the issues raised by the Respondent in the refusal.

The error of law hearing

8.               The matter comes before the Upper Tribunal to determine whether the Decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so.

9.               The hearing was attended by a representative from the Respondent. The Appellant attended in person, having previously confirmed to the Tribunal that the friend who had assisted her with her appeal was unable to attend (as a MacKenzie friend); no request had been made for the hearing to be postponed. Both the Presenting Officer and the Appellant attended remotely, that having been arranged to assist the Appellant following her earlier correspondence with the Upper Tribunal. The Appellant had the assistance of an interpreter who attended the hearing in person, and whom the Appellant confirmed she understood; the language was Polish.

10.           We confirmed that, in the absence of a bundle having been submitted by the Appellant, we had been able to access the bundle created for the First-tier Tribunal proceedings, and had a copy of the documents filed by the parties with the Upper Tribunal.

11.           The Appellant confirmed that there was nothing she wished to add to her grounds of appeal, and so we heard submissions first from the Presenting Officer. This included our raising at the outset that the image of the PDF embedded within the DVR was not accessible. The Presenting Officer confirmed that, while she was also unable to access it, she had access internally and the attachment appeared to be the bank statement in question.

12.           In response to the Presenting Officer's submissions, the Appellant's position included that she did not know the English language very well, everything had been done by her friend, all the information was on her friend's computer, and she (the Appellant) did not have anything. In light of this, we asked the Appellant a number of questions, and her evidence included:

a.        The Appellant was not aware of, and had not read, the DVR.

b.       In relation to whether there was anything the Appellant wished to say regarding the DVR's conclusion that the Monese Bank Statement was not genuine, the Appellant had trusted her friend who had done everything on her behalf, and the Appellant did not know what her friend had included.

c.        The Appellant had not written the 19 December 2023 letter which appeared in the First-tier Tribunal bundle, and her friend had not told her what that letter said.

d.       The Appellant did have an account with Monese bank, and she had provided statements from that bank to be lodged on her behalf.

e.        The Appellant had not been aware that the Respondent thought that the Monese Bank Statement was false before the Respondent had made a decision on her case. While it was unclear from the Appellant's submissions exactly when the Appellant had discovered that the Respondent thought the Monese Bank Statement was false, this appeared to be after she had received either the Respondent's refusal or the First-tier Tribunal refusal of her appeal. The Appellant confirmed that she had not done anything since that time to contact the bank for evidence that it was a genuine account, and that she had not done so because she did not think that she had to contact them.

13.           At the end of the hearing, the decision on error of law was reserved and is now given below, with reasons.

Discussion

14.           For the reasons we set out below, we find that there were no errors of law in the Decision (references in square brackets below are to the paragraphs in the Decision, unless otherwise stated).

15.           We note that the appeal was determined on the papers, the Judge having recorded that the appeal fee paid by the Appellant did not provide for the appeal to include an oral hearing ([1]), and having found it appropriate that he should proceed to determine the appeal in this manner ([3]). No challenge was raised by either party in this regard.

16.           We are satisfied that the Judge had at the forefront of his mind the applicable standard and burden of proof, including that the burden rested with the Respondent with regard to the assertion that a false document had been produced; this was expressly recorded by the Judge ([4]).

17.           We are also satisfied that the Judge had regard to all the material documents relied on by the parties. The Judge recorded that the background to the appeal was within the documentation available to the Tribunal on the online case management system, and that the Tribunal had prepared a bundle of documents for the appeal extending to page 158. We note that this bundle contained, among other items: the Monese Bank Statement; the Respondent's request to the Appellant for further information (said to have been issued on 19 December 2023), in which, among other matters, the Respondent noted that the Monese Bank Statement had been assessed as false, and asked the Appellant to provide a response addressing this concern; the Appellant's reply dated 29 December 2023; the Respondent's refusal decision; the Appellant's Appeal Reasons; the Respondent's Review dated 30 June 2024, in which the Respondent stated that confirmation had been received from Monese that the statements were non-genuine; and the DVR dated 1 July 2024 which was referenced in the Review. The Judge confirmed that he had taken into account every aspect of the documentary evidence, whether or not specifically referred to in the Decision, and had taken particular account of the reasoning set out by the Appellant in support of her appeal ([5]).

18.           The Judge recorded that the Respondent had concluded that the Monese Bank Statement, presented by the Appellant, was false and that, in support of this view, had stated that Monese Bank had confirmed it to be false ([7]). The Judge further recorded that the Appellant had been given the opportunity by the Respondent to respond to its concerns, and that she had done so in the 29 December 2023 letter. As set out above, the Appellant now says that she neither wrote this letter, nor was she told the contents of it by her friend. However, notwithstanding this, this letter purported to come from the Appellant and was lodged in the appeal on her behalf, and so the Judge was entitled to understand its contents to represent the Appellant's response to the Respondent's position.

19.           We note that, in the 29 December 2023 letter, the Appellant's position included that she disagreed with the Respondent's statement that the documents were false and, in relation specifically to the Monese Bank Statement:

"... As Monese Ltd is online only bank account provider/financial institution and NOT proper UK Bank, more that 2-3 million people using this facility and normal stationary banks such Barclays, Natwest or Lloyds have very strict requirements to open account and many people like myself at that time did not have those to satisfy banks on High Street.

I was advised to open Monese account as they didn't require anything except my selfie picture to match my ID card and smart phone.

Other account providers and financial Institutions that are NOT Banks such: Revolut, N26, Sterlling, Monzo, Tide, Monito, Pockit, Croo, Suits me, Uphold, Anna, and many more available in UK which are free and very convenient and handy financial institutions and also provides statements and transaction via pdf documents to be downloaded via smart phone only.

The only disadvantage is that all enquiry and problems have to be resolved online and all monthly statements and transactions are also available online via phone. I cannot request any statements to be sent by post as they do not have any branches and all facility are only available online and from own smart phone access only.

I would like to therefore, kindly ask you why? and on which basis ? You decide to assess my evidence as deemed to be false ??? as they are NOT false and all I could retrieve from my past history I have send it to you and I do not have anything else to add relating to my past residency in the UK...."

20.           We further note that, in the Appeal Reasons, the Appellant provided no additional evidence to support the genuineness of the Monese Bank Statement, save to say that she believed the Respondent could not contact the bank to ask about her statements and this was only an excuse to reject her application (we note in passing that the Appellant refers therein to a Monzo, rather than Monese, bank account, although we place no weight on this as it was not raised by either the Respondent or the Judge):

"...I finally provided my Monzo Bank Account monthly statement generated online from the APP and Now Home Office states is is False and not genuine evidence. I have contacted many other EEU people and most of them received the same answer that the Home Office believes that evidence provided is not genuine and they cannot accept. As Monzo is NOT official Bank but only financial Institution the only way to communicate with them is via app, so I strongly believe that Home Office could not contact them to ask about my statements because all personal details are Protected by The Data Protection Act 2018 as the UK's implementation of the General Data Protection Regulation (GDPR). I strongly believe that the statement from Home Office about the Monzo statement are lies and NOT true and this is only excuse to Reject my Settles Status Application because this is very common and regular practice from Home Office end to 90-95% of Applicant's and many social Media Groups like Face Book Groups related to Settles Status and UK Visa's are talking about this unfair Home Office procedure very loudly...".

21.           In relation to the DVR relied on by the Respondent, although the embedded PDF was not accessible, we are satisfied that the DVR concerned the Monese Bank Statement because of the information recorded against "Type of Document" (which included the account number). We note that the DVR recorded, among other matters, that: a verification request was sent to Monese bank on 13 December 2023, and a response was received by email that same day; enquiries conducted with Monese had established the document to be non-genuine; and that this had been verified by a named Executive Officer Caseworker in the Permanent Migration Fraud & Verification Team with, under Experience, it being stated, "Enrichment checks are carried out by staff members working in Permanent Migration Fraud Team. They routinely examine information and supporting documents submitted in support of applications to reside in the U.K. and conduct appropriate verification checks and enquiries ..." .

22.           While it is the case that the Respondent did not produce a copy of the Respondent's email correspondence with Monese of 13 December 2024, the DVR clearly set out the Respondent's position regarding the outcome of that email correspondence. It was for the Judge to carefully consider the positions and evidence of both parties on the issue of the Monese Bank Statement, and to assess whether the Respondent had met the burden of proof regarding the allegation of falsity. We are satisfied that the Judge did so, and that the finding reached was one open to him on the evidence. We are also satisfied that the Judge provided adequate reasons for his finding, including that (with reference to the Appellant's 29 December 2023 letter): "Rather than taking the opportunity of obtaining confirmation from Monese Bank that the statement she had provided was genuine and that it related to a genuine account which she holds, the appellant instead sets out her objection to the refusal reasons by referring to the account being available as a modern form of bank account, which the account holder operates only by use of a "smart phone" . She does not address the actual issue in contention" ([9]). Further, in light of the Judge's finding that the Respondent had discharged the burden with respect to the Monese Bank Statement and so the application had been correctly refused with reference to suitability grounds overall ([11]), the Judge was not required to carry out a detailed consideration of the other evidence relied on by the Appellant, including the Utility Bills and the National Express Ticket.

Notice of Decision

1.        The making of the decision of the First-tier Tribunal did not involve a material error on a point of law.

2.        The decision of the First-tier Tribunal shall stand.

 

 

L.C. Connal

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

21 March 2025