RU v The Entry Clearance Officer, Lagos [2008] UKAIT 67

[2008] UKAIT 00067

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Newport Date of Hearing: 9 April 2008

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Grubb

Immigration Judge Osborne

Between

RUAppellant

THE Entry Clearance Officer, LagosRespondent

No appearance for Appellant

Miss T Powell, Home Office Presenting Officer for Respondent

An Immigration Judge must decide an appeal solely on the evidence and must not make responses of his own to a party’s concerns when those responses are contrary to the evidence or the common experience of humanity. In particular, in deciding an appeal on the papers, an Immigration Judge’s determination must show that he has dealt with any proper concerns raised in the notice of decision.

DETERMINATION AND REASONS

Date 2008-09-10

[1]The appellant, a citizen of Nigeria, appealed to the Tribunal against the decision of the respondent on 16 April 2007 refusing him entry clearance to the United Kingdom as a visitor. The Immigration Judge allowed the appeal. The respondent sought and obtained an order for reconsideration. Thus the matter comes before us.

[2]At the time and place appointed for the hearing there was no appearance by or on behalf of the appellant. He is abroad and has appointed no representative. We considered it appropriate to proceed in his absence.

[3]The reasons for the respondent’s refusal of the application were as follows. First, the residential address named as that of the sponsor had been, he said, associated with 17 visa applications lodged at the post in the last 12 months, with different names and telephone numbers. Further, the sponsor had been associated with 10 visa applications in the same period. The respondent was accordingly not satisfied that the appellant had given a correct account of the sponsor’s circumstances or that his own intentions were as stated. Secondly, the bank statement provided by the appellant had been submitted to the forgery team working with the respondent. It had been compared with a “known genuine sample”. Errors in the interest calculations had been found and in those circumstances the respondent placed little weight upon the document as evidence of the appellant’s financial standing. Thirdly, the pay slips provided by the appellant showed exactly the same amount for each month, which surprised the respondent and caused him to believe that they also did not reflect genuine employment by a reputable concern.

[4]In his manuscript grounds of appeal, the appellant said he had been in touch with his sister in the United Kingdom, who had told him that she had not invited a single person to the United Kingdom previously, and that no member of her husband’s family had visited the United Kingdom either. The building in which she lived was “a council flat that contain many occupants in the building”. So far as concerns the bank statement, the appellant said in his grounds that he had contacted the branch manager “and he said there are no errors in the statement and a letter was issue to back it up (copy attach).” No such copy was attached to the grounds. So far as concerns the payslips, the appellant said that they were in the usual form: there were no deductions because he had not missed any work. There was no extra for overtime because his working hours were 8am to 5pm every day. The appellant said that he intended to visit his sister for only 2 weeks, in order to see her new baby.

[5]In his determination, the Immigration Judge concluded as follows. First, the sponsor was indeed the appellant’s sister. He made this finding “from the documentation provided by the appellant and from the sponsor’s own evidence”. Secondly, so far as the multiple use of the address is concerned, the Immigration Judge said:

“The appellant himself has explained that this is council accommodation and I find that as an address [it] may be the home to many other people who have been acting as sponsors during this period and therefore the fact that 17 visa applications have been associated with [the address] with different names and telephone numbers, is not pertinent to this Sponsor. The mere fact that the sponsor has been associated with 10 visa applications lodged at the Lagos post in the last 12 months is likewise not significant to this application, in the absence of any evidence that these 10 applications were not bona fide. The respondent has produced no such evidence.”

[6]The Immigration Judge went on to consider the payslips. He said “whilst these payslips have not been produced to me I find that they are in the form that the respondent has described.” He went on to “find, as the appellant explains, that in Nigeria it is common practice for payslips to be identical each month”.

[7]So far as concerns the bank statement, he said that he had not been shown what the faults in it were, and that the fact that interest calculations contain errors would not be proof of falsity. He continued: “The appellant states that he has produced a statement from Oceanic Bank to state that no errors are contained and I find that this document exists even though it has not been produced to me”.

[8]Having dealt in this way with the respondent’s concerns, the Immigration Judge went on to allow the appeal.

[9]The grounds for reconsideration, on the basis for which the order for reconsideration was made, relate to the Immigration Judge’s conclusions on the multiple use of the address. They assert that the Immigration Judge’s finding that that address was the address of many other people is speculative, and in any event does not explain why so many of them sponsored visa applications. In her submissions before us Miss Powell touched on a number of other issues of concern in the determination.

[10]There can be no doubt that the Immigration Judge’s determination is a generous one. It is, on the basis of the information before him, perhaps more generous to the appellant than almost any other person of judgment would have given. But a diverse judiciary such as that of this Tribunal will be diverse in its attitude and approach as well as in other characteristics. Courts and Tribunals sitting on appeal or reconsideration frequently see judgments of fact that are clearly different from those that they themselves would have made. But such a difference of opinion does not of itself make the decision wrong: still less does it show an error of law, with which alone we are concerned on reconsideration. The question raised by this reconsideration is whether, and to what extent, a decision simply to accept the appellant’s statements at face value and to provide, from the bench, explanations for any difficulties fulfils the judicial task of ensuring that all parties are treated fairly. Is there such a thing in law as undue judicial credulousness?

[11]That is a question bristling with difficulties. What is clear, however, is that a judge in any jurisdiction must deal with the concerns of the parties. In the present case, the respondent’s concerns were expressed in the notice of refusal. For the reasons the respondent gave, he did not regard the appellant’s application as a credible one. No doubt it was open to the Immigration Judge to find that he was satisfied on the balance of probabilities by the evidence before him, but, given the concerns that had been raised, he needed to show that he had taken into account all that material. It ought not to be able to be said of him that he decided to accept everything the appellant had said, and ignore everything that undermined the appellant’s case. Unfortunately, however, it appears to us that that may be exactly what he did. An Immigration Judge may be entitled to make a leap of faith, but not if the material before him shows that his faith is misplaced.

[12]It is somewhat surprising that the respondent has not sought to give any further details of the associated applications, particularly in the light of comments made in the order for reconsideration. No point has been taken on that, however: and, in a sense, the parties are on an even footing in that, while the respondent’s case relies on specific but unelaborated assertions, the appellant’s case relies on hearsay transmitted through a statement in the notice of appeal. We treat the respondent’s allegation as an allegation of fact that needs to be dealt with, as the Immigration Judge did. There are two elements to it. The first is that the sponsor’s address has been used a number of times; the second is that the sponsor’s name is associated with a number of previous applications. So far as concerns the address, the Immigration Judge apparently accepted the sponsor’s statement, made to the appellant, and transmitted by him in the grounds of appeal, that she lives in council accommodation. On that basis the Immigration Judge concluded that there might well be other people living at that accommodation, and went on to assume that those people might well be the sponsors of other applications. We think that that conclusion was either not open to him on the evidence or so unlikely that he ought not to have reached it in the absence of clear support for his hypothesis. For whereas it may well be the case that one building has several households in it, particularly if the building is, for example, a block of flats, whether council accommodation or otherwise, the evidence before the Immigration Judge clearly showed that what was being spoken of by the respondent was not the same building but the same postal address. The postal address in question is that of the sponsor, as confirmed both by her letter to the Entry Clearance Officer in support of the application and by her bank statement. That the address to which a bank statement is sent is identical for a large number of households is not, we think, within the common experience of humanity; and even if an Immigration Judge’s familiarity with the arrangements for council accommodation is limited, it ought to extend to appreciating that a situation in which many households, unrelated except by having the same landlord, share the same postal address for such official communications, is very unlikely. The Immigration Judge had no basis for making the assumption he did, and on the material before him he ought not to have made it.

[13]Looking now at the allegation that the sponsor herself had been involved in previous applications, it is remarkable that the Immigration Judge indicates a possible explanation for that, whilst the sponsor herself, again through the appellant’s grounds of appeal, denies it. Again, quite evidently, the Immigration Judge was anxious to provide explanations that would assist the appellant: but, in this case, the explanation that he provided runs counter to the evidence before him. As a result, he fails entirely to deal with the conflict of information.

[14]If he had been minded to consider the respondent’s allegation on its merits, he might also have noted the terms of the sponsor’s letter. Despite her claim to be the appellant’s real sister and not to have previously invited a single person to the United Kingdom, she thanks the Entry Clearance Officer “in anticipation for your usual cooperation”, which whilst not fatal might be regarded as requiring some explanation. Further, although she refers to the appellant twice as her brother, she also calls him “my friend”. She makes no reference to what the appellant said was the purpose of the trip — to see his sister’s new baby. It would be wrong of us, even in the light of the respondent’s expressed concerns, to speculate that the letter is one that is largely in standard form, but, again, the differences between what has been said and what is written require explanation and investigation, with which apparently the Immigration Judge was not concerned.

[15]If there had been no adverse points, the Immigration Judge might have been entitled simply to swallow the appellant’s grounds of appeal whole. He was not, however, entitled to ignore the material that was before him, or to decline to deal with the adverse points in it.

[16]The fact that the salary slips show the same payment for each month did not concern the Immigration Judge very greatly, and it would not have concerned us. Salaries are often paid in identical monthly instalments. As it happens, however, the appellant’s comment on his salary provides another difference between the grounds of appeal and the documents. As we have indicated above, the appellant said that his working hours were 8am to 5pm. The contract of employment that he submitted in support of his application gives his working hours as 8am to 6pm. It is small point, but it is another indication that the evidence is perhaps not reliable.

[17]It is in that context that the Immigration Judge should have considered the bank statement, and in particular, the letter which the appellant said existed (but did not specifically indicate its contents) and that was being forwarded to the Tribunal, but which was not in fact forwarded. The Immigration Judge concluded (on what basis we know not) that it existed, and apparently assumed that it supported the appellant, although he had no information as to its contents. Again that is perhaps a conclusion which might (just) be reached if there was no reason to suppose that statements made by or on behalf of the appellant were anything other than completely reliable. There was no basis for that conclusion; and it follows that the Immigration Judge had no basis for supposing that a letter that he had not seen either existed or wholly supported the appellant.

[18]As we have indicated, we would interfere with the findings of fact of the Immigration Judge only with the greatest hesitation, and certainly not solely on the basis that we would not have made those findings on the evidence before us. It seems to us, however, that this was a case in which the Immigration Judge’s conclusion that the contents of the appellant’s grounds of appeal were to be believed was not properly sustainable on the totality of the evidence in front of him.

[19]The Immigration Judge erred in law in his conclusions. Bearing in mind the points we have made in the course of examining his determination we find that, on the evidence before us, we are not satisfied that the sponsor’s circumstances are as claimed or that the appellant is to be believed in his claimed intention, his employment, or his financial assets. In the circumstances we are not satisfied that at the date of the decision he met the requirements of the Immigration Rules and we substitute a determination dismissing his appeal. C M G OCKELTON DEPUTY PRESIDENT