Vijaylaxmee Kumari Daby v The Secretary of State for the Home Department [2011] UKUT 485 (IAC)

[2011] UKUT 00485 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

Date 27 September 2011

THE IMMIGRATION ACTS

Before

Mr C M G Ockelton, Vice President

Upper Tribunal Judge Jordan

Between

VIJAYLAXMEE KUMARI DABYAppellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr M Adophy, instructed by Zuriel Solicitors for Appellant

Mr R Hopkin, Home Office Presenting Officer for Respondent

Where an in-country application is refused on the ground that a document is false, and the respondent fails to prove the falsity before a Tribunal, with the result that an appeal against the refusal is allowed:-

Between

the respondent is obliged to comply with the terms of the Tribunal’s decision and make a grant in accordance with the original application;

it may be open to a respondent to raise the question of the falsity of the document in response to any subsequent application.

DETERMINATION AND REASONS

[1]The appellant is a national of Mauritius. She came to the United Kingdom in 2004 as a visitor, remained as a student as she was entitled to do having obtained leave to do so and obtained further leave extending up to 2009.

[2]During the course of that leave, having finished her studies, she made an application for leave to remain as a Tier 1 (Post Study Work) Migrant. That application was refused on the 20 February 2010. The sole ground of refusal was that the appellant had, it was said, produced a forged document in support of her claim to meet the maintenance requirements of the rules.

[3]The appellant appealed against that decision. Immigration Judge Herlihy, who heard that appeal was clearly not assisted by there being no representation on behalf of the Secretary of State; she noted that in a case where forgery is alleged it is for the Secretary of State to discharge the burden of proof; she noted that there was before her no evidence supporting the Secretary of State’s allegation that the document was forged. She therefore decided that the Secretary of State had not discharged the burden of proof in relation to the forgery. Looking therefore at the evidence on its own merits she concluded that the appellant met the requirements of the relevant rules and allowed the appeal.

[4]The appellant, no doubt buoyed up by that decision, returned to the Secretary of State and sought the leave for which she had originally applied and in respect of which the Secretary of State’s decision had been reversed on appeal. She received a further decision refusing her leave. That decision is dated 6 October 2010 and the refusal is for precisely the same reason as before, that is to say that the document supporting the claim to meet the maintenance requirements of the rules is a forgery.

[5]The appellant appealed again against that decision; on this occasion there was representation from the Secretary of State and evidence was put before Immigration Judge W L Grant, which was sufficient to persuade him that the document was indeed a forgery. He therefore dismissed the appeal.

[6]The question raised by the grounds drafted by Mr Adophy, who has represented the appellant throughout, is whether the Secretary of State was entitled to issue a new decision refusing the appellant’s application on precisely the same ground as had failed before the first Immigration Judge. He reminds us, and Mr Hopkin very frankly accepts, that the Secretary of State and her executive officers are required to carry out the judgments of the Tribunal and that it is not open to an officer to circumvent a judgment of the Tribunal by making a new administrative decision. If authority were required for that it is to be found in the judgement of Stanley Burnton LJ, with whom the other members of the court agreed, in SSHD v TB (Jamaica)

[2008] EWCA Civ 977

at [32] and [33], where he says this: “32. As a matter of principle, it cannot be right for the Home Secretary to be able to circumvent the decision of the IAT by administrative decision. If she could do so, the statutory appeal system would be undermined; indeed, in a case such as the present, the decision of the Immigration Judge on the application of the Refugee Convention would be made irrelevant. That would be inconsistent with the statutory scheme. 33. The principle that the decision of the Tribunal is binding on the parties, and in particular on the Home Secretary, has been consistently upheld by the Courts. In R (Mersin) v Home Secretary

[2000] EWHC Admin 348

, Elias J said: “In my opinion there is a clear duty on the Secretary of State to give effect to the Special Adjudicator’s decision. Even if he can refuse to do so in the event of changed circumstances or because there is another country to which the applicant can be sent, there is still a duty unless and until that situation arises. It would wholly undermine the rule of law if he could simply ignore the ruling of the Special Adjudicator without appealing it, and indeed Mr. Catchpole [counsel for the Home Secretary] does not suggest that he can. Nor in my opinion could he deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it. In my judgement, once the adjudicator had determined the application in the applicant’s favour, the applicant had a right to be granted refugee status, at least unless and until there was a change in the position.” “

[7]Those observations were made in relation to appellants who claimed asylum; but there is no difference in principle in terms of the duty of the Secretary of State and her officers to carry out decisions of the Tribunal; indeed Mr Hopkin, as we have indicated, does not suggest the contrary. He does draw to our attention that in response to the grant of permission to appeal one of his colleagues submitted a note indicating this:

“The respondent opposes the appellant’s appeal. The issue needs to be addressed as to whether it is open in law to the respondent to “re-refuse” an application for variation of leave such as to constitute a fresh immigration decision. This is a separate question from whether to do so is an abuse of process.”

[8]It appears to us that whether it is open in law to the respondent to “re-refuse” an application for variation of leave such as to constitute a fresh immigration decision rather misses the point. Procedurally, if there is to be another refusal there needs to be an immigration decision carrying a right of appeal: so that any failure by the respondent to carry out his clear duty to follow a decision of the tribunal can be the subject of a further appeal, as this one has been.

[9]We do not think that the present decision was an abuse of process in any real sense; Mr Hopkin describes the procedure in the present case as having been characterised by a want of zeal on the part of the Secretary of State first, followed by an excess OF zeal latterly, and that may well be right.

[10]The position is that the Secretary of State had what she regarded, and indeed what the second Immigration Judge regarded, as clear evidence that the document in question is a forgery, but failed to produce that at the only time it mattered, which was before the first Immigration Judge. If the Secretary of State fails to put her case properly before Immigration Judges then she suffers the consequences. The consequence in this case was that she failed to establish the matter on which she bore the burden of proof, and she was therefore obliged to carry out Immigration Judge Herlihy’s decision by granting leave in accordance with the application.

[11]It appears to us that two consequences follow from that. The first is that the appellant’s appeal to this Tribunal must be allowed because the Immigration Judge erred in law in concluding that he was entitled to look at the matter anew in the circumstances of this case. Immigration Judge WL Grant should have appreciated that the Secretary of State was obliged to carry out the determination of Immigration Judge Herlihy and to grant the leave sought. We will therefore direct that the Secretary of State now grants leave as sought by the application made in 2009.

[12]The second observation is this. As we have made clear, Immigration Judge Herlihy did not find that the document was not a forgery. She found that the Secretary of State had not established that it was.

[13]The conclusion reached in relation to the present application is a conclusion that binds the Secretary of State’s treatment of the present application. Because the appeal is allowed, the Secretary of State is now obliged to grant leave in accordance with that application, as if it had been granted rather than refused.

[14]But if the appellant makes any further application to the Secretary of State or to an Entry Clearance Officer, there seems to us to be no reason in principle why they should not consider whether the application should be affected by their view of the document in question. If so, as we understand it, there may be circumstances in which there might be discretionary refusal of any future application, if indeed it can be established that the document in question, used to support the present application, is a forgery.

[15]For the reasons we have given, the appellant’s appeal is allowed and we direct that the Secretary of State grant leave in accordance with the appellant’s application. C M G OCKELTON VICE PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Date: 30 November 2011