MH v The Entry Clearance Officer, Islamabad

Where a respondent relies on an unpublished document referred to in the notice or reasons for refusal, rule 13 requires its production to the Tribunal and appellant. If it is not supplied, the Tribunal may treat it as no longer relied upon and treat the reference to it as no longer part of the respondent’s case.

The Entry Clearance Officer bears the burden of proving that supporting documents are false. A bare assertion in a refusal notice, without the asserted verification report or other evidence, cannot establish falsity or justify mandatory refusal under paragraph 320(7A). Where the remaining documents establish the applicable maintenance requirement, the appeal should be allowed.

The appellant, a Pakistani child, applied for entry clearance as the dependant of his father, who then had leave in the United Kingdom as a student. The Entry Clearance Officer refused the application on the basis that bank statements said to demonstrate maintenance were false. The refusal relied on paragraph 320(7A) and, consequentially, found that the maintenance requirement in paragraph 79(iv) was not met.

An Immigration Judge dismissed the appeal on the papers. Reconsideration was ordered and continued before the Upper Tribunal after the abolition of the Asylum and Immigration Tribunal. The central issue was whether there was evidence capable of proving that the bank statements were false when no document verification report had been supplied to the Tribunal.

1. Appeal allowed. The Immigration Judge materially erred in upholding refusal under paragraph 320(7A). The Entry Clearance Officer accepted before the Upper Tribunal that the burden of proving falsity rested on the Officer. No document verification report, despite being asserted in the refusal notice and relied on by the Immigration Judge, was before the Tribunal.

2. Under Asylum and Immigration Tribunal (Procedure) Rules 2005, rule 13 imposed mandatory disclosure obligations. Its purpose was to enable an appellant to know the case to meet and the Tribunal to decide the case on the relevant material. Where an unpublished document referred to in the notice or reasons for refusal is not furnished, the Tribunal is entitled to conclude that the respondent no longer relies on it and that the reference no longer forms part of the respondent’s case.

3. The statutory procedure for non-disclosure in the public interest was available under section 108 of the 2002 Act. It did not excuse the failure to provide the verification material in this case.

4. The unsupported assertion in the refusal notice provided no evidential basis for a finding that the bank statements were false. Without that finding, the statements were sufficient to establish maintenance and accommodation under paragraph 79(iv) of the Statement of Changes in Immigration Rules (HC 395). The appeal was therefore allowed on that basis.

5. No direction was made. The sponsor’s student leave had ended or was about to end, so a new application would be required if the appellant were to seek entry as the dependant of a person with a different immigration status. The Tribunal also expressed concern about an implausible sworn statement filed in support of the earlier appeal.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, allowed the appellant’s appeal because the alleged document falsity was unsupported by evidence.
• Asylum and Immigration Tribunal: Immigration Judge Cohen dismissed the appeal on the papers.
• Reconsideration: An order for reconsideration was made; following the abolition of the Asylum and Immigration Tribunal, it continued as an appeal to the Upper Tribunal.