MM (Allowed appeal: further refusal) Pakistan [2008] UKAIT 00040 (01 May 2008) [2008] UKAIT 00040

UKAIT
MM (Allowed appeal: further refusal) Pakistan [2008] UKAIT 00040 (01 May 2008)
[2008] UKAIT 00040 · 2008-05-01
[1]MM (Allowed appeal: further refusal) Pakistan [2008] UKAIT 00040 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 7 December 2007 Date Determination notified: 01 May 2008 Before Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Designated Immigration Judge McClure Between MM APPELLANT and ENTRY CLEARANCE OFFICER, ISLAMABAD RESPONDENT For the Appellant: Mr. G. Brown, instructed by Rochdale Law Centre For the Respondent: Mr. K. Wood, Home Office Presenting Officer DETERMINATION AND REASONS An executive officer is generally speaking obliged to act in accordance with a decision of the Tribunal allowing an appeal. That principle, however, does not prevent the application being refused again on different grounds from those given the first time, especially where the earlier determination cannot be regarded as having adequately dealt with the evidence and facts underlying the new ground. The appellant, a citizen of Pakistan, having won a previous appeal against the refusal of entry clearance as a visitor, sought entry clearance from the respondent in line with the Immigration Judge's decision. The respondent again refused to grant entry clearance. The appellant appealed, and an Immigration Judge dismissed his appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.[2]The appellant's original application was made in June 2005. It was refused on 30 June 2005 for a considerable number of reasons, set out in the notice of decision. The Entry Clearance Officer was not satisfied that the appellant was genuinely seeking entry as a visitor for the limited period as stated by him, that he intended to leave the United Kingdom at the end of the visit, that he did not intend to take employment, that he would be maintained and accommodated adequately without recourse to public funds, or that he could meet the cost of his return or onward journey. Those formal reasons, derived from para 41 of the Statement of Changes in Immigration Rules HC 395 were supported by specific reasons. Those specific reasons were that there were forged or counterfeit entries in the appellant's passport, as set out in some detail in the notice of refusal, that the appellant had provided no evidence that he had a relative in the United Kingdom and that this was in truth a family visit, that the appellant had failed to provide any evidence of the family circumstances in Pakistan which he described, that the appellant had produced no evidence of funds, and that the appellant had shown no evidence of any reason to return to Pakistan. The appellant appealed against that refusal and the matter came before an Immigration Judge, to whom we will refer as "the first Immigration Judge". Following a hearing in Manchester on 21 March 2006 the Immigration Judge issued a determination allowing the appellant's appeal.[3]We have read that determination. We have to say, with regret, that it appears to us to indicate a most casual and unprofessional approach to the task before the first Immigration Judge.[4]In setting out the issues in the case, the Immigration Judge chose to mention only that the appellant's visa was refused because the respondent was not satisfied that the appellant would leave the United Kingdom at the end of the period of his visit. There was no reference at that stage to the other reasons for the refusal, or to the allegations about the passport, or to the lack of evidence on other matters, or to the evident difficulty that if the appellant had no relative in the United Kingdom, he had no right of appeal. The first Immigration Judge went on to say that he had before him bundles from both the appellant and the respondent: he gave no hint as to the contents of those bundles, which is a matter of some concern in the light of what he said later in his very short determination. After setting out the law in the most cursory fashion, the Immigration

Judge continued as follows:

" My Findings 10. I have given careful consideration to all the documents before me and to the evidence and submissions, which are set out in the record of proceedings. 11. I find that the Appellant is a genuine family visitor. I heard evidence from the Sponsor … who told me that he was the brother of the Appellant. He said that he was sure that the Appellant would return to Pakistan at the end of his visit. When the Appellant had been to the UK before, he had never worked and had always returned within the limits of his visa. He confirmed that his written statement was true. He believed that the Appellant had not placed any counterfeit stamps in his passport. If he had been attempting to deceive authorities, he said that he would have paid an agent to bring him to the UK. The Appellant had a good Immigration history and had visited the UK on 3 other occasions but had always returned to Pakistan. I find that although the Presenting Officer did not have a file of papers, he was wrong to argue that the ECO must have felt justified in the reason for Refusal. There was no interview in this and no evidence placed before me concerning the comments about the passport. I have no reason to doubt that the stamps in the passport are genuine or that the Appellant will return to Pakistan. He has been here on many occasions and has always returned. DECISION 12. On the totality of the evidence before me, I find that the Appellant has discharged the burden of proof and reasons given by the Respondent do not justify the refusal. Therefore the Respondent's Decision is not in accordance with the law and the applicable immigration rules. 13. I allow the appeal. "
[5]It appears that the first Immigration Judge accepted unreservedly the credibility of the sponsor, who appeared before him and said that he was the appellant's brother. Even so, the Immigration Judge made no reference at all to the lack of evidence on other matters as mentioned in the notice of decision. It looks very much, from his summary of the issues at the beginning of the determination and the conclusions that we have set out, as though the first Immigration Judge did not read the notice of decision in full. He makes no reference either to any issue of jurisdiction: although we accept that the matter may be regarded as having been silently dealt with in the first Immigration Judge's simple statement that the person before him said that he was the appellant's brother.[6]It is very striking that the first Immigration Judge apparently gave no real consideration to the allegation about the passport. First, there is something of a mystery about what was before him. He refers to having a bundle from the respondent, but to the Presenting Officer before him apparently having less than adequate documents. The Immigration Judge does say that there was no evidence before him concerning "the comments about the passport": but there were serious and detailed allegations and it is difficult to know whether the Immigration Judge meant that he was not treating them as evidence or whether he simply meant that there was no further evidence. It must be simply wrong for him to say "I have no reason to doubt that the stamps in the passport are genuine". Reasons were clearly given by the allegations in the notice of refusal. They are reasons nonetheless even if the Immigration Judge decided that they had not been established or they should not figure largely in his consideration of the case as a whole. But it is difficult also to see how he could evaluate the accuracy of the allegations solely on the basis of oral evidence by the sponsor that the sponsor "believed that the appellant had not placed any counterfeit stamps in his passport". The sponsor's belief about the appellant was not, and could not be, evidence about the passport itself.[7]It is a matter of very considerable concern that the Immigration Judge appears to have approached his task in a way that failed to give any proper value to the concerns of the Entry Clearance Officer that had been put so clearly in the notice of refusal. It is further of concern that he chose to allow the appeal without any reference to the issues of finance that had been raised in the notice of refusal and on which there was evidence before him.[8]Nevertheless, there was no application for reconsideration of the first Immigration Judge's decision, and, on inquiry, the Presenting Officer's Unit informed the appellant's representative that entry clearance would be issued.[9]When the appellant sought entry clearance in accordance with the first Immigration Judge's determination, he received a further notice of refusal. On this occasion the refusal was specifically under para 320(21) of HC 395, which provides that an application is normally to be refused if (whether or not the applicant's knowledge) a false document has been submitted in support of an application. We set out here the allegation about the passport, which is the same as that made about it previously:
"You have submitted Pakistan passport number … as proof of your travel history. However, close examination of this passport has determined that there is a counterfeit UK Immigration entry stamp on page 11 of the passport. This stamp has been compared to two examples of genuine stamps, as well has having been examined by a dedicated forgery officer and has been found not to be genuine. The forgery officer has also determined that the Pakistan Immigration exit stamp on page 11 has been tampered with, and has had the date changed by use of chemicals. There is also a chemically altered Pakistan Immigration entry stamp on page 16 of the passport. In view of the above, I find that any statements you have made or documentation you have submitted is no rendered unreliable and casts serious doubts on your intention as a claimed family visitor to the United Kingdom. I am therefore not satisfied that you meet all the requirements for entry as a visitor as defined by paragraph 41 of HC 395."
[10]The appeal to the Tribunal against that decision came before an Immigration Judge to whom we shall refer as "the second Immigration Judge". He had before him the first Immigration Judge's determination and the detailed forgery reports, with attached photographs, from June 2005. The grounds of appeal to him were simply that the Entry Clearance Officer was bound by the first Immigration Judge's determination and was not entitled to refuse to issue an entry clearance for reasons that had already been the subject of a judicial determination in the appellant's favour. Reference was made to Devaseelan [2002] UKIAT 00702 and to published instructions to Entry Clearance Officers indicating that they should honour the terms of a judicial determination adverse to them. The second Immigration Judge reminded himself that Devaseelan merely indicates that on a second appeal in certain circumstances an earlier determination is to be treated as a starting point. He decided that, despite the earlier determination, he had jurisdiction to hear the appeal. He pointed out that it was difficult to know what the first Immigration Judge had taken into account in making the findings that he appeared to have made on the passport. He noted there was different evidence before him, and that the ground for refusal was different in that it mentioned para 320. He noted that despite the fact that the appellant had retained his passport, he had done nothing to counter the allegations, now (if not previously) clearly supported by evidence. He dismissed the appeal.[11]The grounds for reconsideration, on the basis of which the order for reconsideration was made, were that the second Immigration Judge had failed to have sufficient regard to what were described as "the credibility findings" made by the first Immigration Judge, that the second Immigration Judge had failed to take into account that, as set out in RP [2006] UKAIT 00086 , a party asserting that a document is forged has the burden of proof on that issue, and in that context that the second Immigration Judge had failed to note that the passport had apparently passed investigation when used by the appellant on a number of occasions for entry into the United Kingdom. The order for reconsideration observed that the evidence of forgery was contentious and that it was "arguable that the Immigration Judge was perverse to accept it".[12]We heard submissions from Mr. Brown and from Mr. Wood. Mr. Brown relied on the grounds, which he expanded briefly. Mr. Wood accepted that if the Immigration Judge had acted with perversity, a new hearing might be necessary, at which he would seek to adduce further evidence.[13]This is a case in which there is a formal and specific allegation of forged or counterfeit stamps in the appellant's passport. There can be little doubt that the second Immigration Judge erred in law in failing to appreciate that in such a case the burden of proof on that issue lay on the respondent. The error does not, however, of itself render his decision perverse. In every other respect his decision appears to us to be a careful and proper evaluation of the matters before him.[14]The principal question was whether the Entry Clearance Officer was entitled to refuse for the second time the appellant's application in the circumstances of this case. On the one hand, there had been a determination in the appellant's favour which the Entry Clearance Officer had not sought to query by way of application for reconsideration. On the other hand, the determination made no proper or specific findings on the assertions about the passport. There is no doubt that the inadequacies of the first Immigration Judge's determination put the Entry Clearance Officer in a difficult position. No doubt he was aware of the instructions to him that a judicial determination should be honoured. On the other hand, the judicial determination before him did not properly resolve the issues about the passport. If he granted entry clearance, he would be endorsing (by inserting a visa in) a passport about which he had real concerns, which had been expressed in detail, and which had neither been met in any way by the appellant nor analysed by the Immigration Judge.[15]There is no issue estoppel in immigration law, but it must be in general right to say that Entry Clearance Officers are not entitled to ignore the effects of a judicial decision. If the first Immigration Judge's decision had been a proper, professional and comprehensive assessment of the matters before him, there could have been no doubt that the Entry Clearance Officer was bound to honour it. On the other hand, the fact that the first Immigration Judge's determination did not have those characteristics makes it less easy to understand why, if the Entry Clearance Officer did not wish to honour it, he did not seek reconsideration of it. We would not wish to be in a position of giving what would amount to formal approval of the determination of the first Immigration Judge, because of the concerns that we have about it. On the other hand, we would not wish to give any approval to a practice of not honouring unchallenged judicial decisions.[16]There are two features of the course of the present case that assist in resolving this difficult question. The first is that the second refusal was formally on a different basis from that of the first refusal. It is true that the facts relating to the allegation of forgery are the same: but they are now the basis of a refusal under para 320, rather than part of a substantive refusal under para 41. It is true also that the substantive elements of para 41 are the subject of reference in the second refusal, but the substantive requirements of para 41 are treated in an entirely different way in the second refusal. To that extent it is clear that the Entry Clearance Officer has accepted the burden of the first Immigration Judge's determination on the issues that were specifically before that Immigration Judge: that is to say, substantive compliance with the requirements of para 41. Paragraph 320 of HC 395 makes it clear that an Entry Clearance Officer is entitled to refuse an application for the reasons set out in that paragraph, even if an applicant meets all the substantive requirements of the Rules. It follows that an Entry Clearance Officer must be formally entitled to do what the Entry Clearance Officer did in this case: there may be a refusal under para 320 even if the Entry Clearance Officer is bound by a judicial decision to accept that the substantive requirements of the Immigration Rules have been met.[17]Secondly, it may be that matters going to the genuineness of passports and the entries in them ought to have a special status. In the circumstances we need reach no specific conclusion on this, but it does appear to us that it is of the greatest importance that no decision of an Immigration Judge should have to be taken as endorsing the validity of a challenged immigration document unless it is clear that the issues have indeed been properly resolved in the judgement. A determination on such matters has effect almost as a judgment in rem : it is capable of going well beyond such issues as the individual intention of a person making a particular application or his finances at that time.[18]We conclude that in the circumstances of this case the Entry Clearance Officer, even if bound by the Immigration Judge's determination on the earlier refusal under the substantive requirements of para 41, was entitled to issue a new refusal under para 320. It follows that the Immigration Judge was right to reject the appellant's grounds of appeal and to determine the appeal before him based on the new notice of refusal.[19]As we have said, he made an error in law in his attribution to the appellant of the burden of proof on all issues, ignoring the respondent's burden of proving the forgery. The Immigration Judge heard oral evidence from the sponsor, as summarised in his determination. Other than the notices of decision and the forgery reports, however, there is no evidence relating to the allegations about the passport save that contained in the record of the appellant's interview as follows:
"Q: We have evidence that the UK immigration officer's entry stamp on page 11 of ppt is forged. The Pakistan exit stamp on the same date has been chemically altered and there is chemically altered entry stamp on page 16. All three of stamps are forgeries. Do you have anything to say? A: They are not forged. Q: I am afraid that we have proof that these stamps are forged. As such your application will be refused again. A: [no reply] … Q: Anything to add? A: I just want to say that someone else has given wrong information about me."
The passport was produced at the hearing before us, and we examined it. It is right to say that the detailed allegations made in the forgery reports (which we do not need to set out in this determination) refer to matters which are neither evident to the untrained eye nor obvious to a person of little experience in examining passports. But, despite the fact that the appellant has had every opportunity to have his passport examined by other experts, he has not done so. He has confined himself to asserting simply that the entries are not forged, and that somebody is making untrue statements about him. In the circumstances, bearing in mind that the burden of proof is on the respondent and the standard to be applied is the high one to be associated with such assertions, it appears to us nevertheless that the respondent's case is made out. It is supported by detailed evidence which there is no reason to doubt and which has not been the subject of any real challenge.[20]Paragraph 320(21) allows the Entry Clearance Officer a discretion. The appellant has not specifically raised the question whether the discretion should have been exercised differently. He has preferred to insist simply on his right to have the first Immigration Judge's determination honoured despite the new reason for refusal and the detailed allegations of forgery. In the circumstances we see no reason to say that the Entry Clearance Officer's discretion should have been exercised differently.[21]For the reasons we have given we conclude that the second Immigration Judge did not materially err in law in dealing with the appeal before him substantively rather that treating it on the basis that all relevant issues had been resolved by the first Immigration Judge's determination. He did err in law in his application of the burden of proof. We find that the evidence establishes, to a high degree of probability, that the appellant's passport contains entries that are forged or altered: that para 320(21) therefore applied to the appellant's case: and that there is no basis for saying that the Entry Clearance Officer's discretion should have been exercised differently. We therefore substitute a determination dismissing the appellant's appeal. C M G OCKELTON DEPUTY PRESIDENT Date:

Cited in 1 later judgment