SD v Entry Clearance Officer, Chennai

For refusal under paragraph 320(11) of the Immigration Rules, the Entry Clearance Officer bears the burden of proving that documents in an earlier application were forged. An earlier refusal alleging forgery, without a judicial determination, admission or evidence proving it, does not establish that ground.

Paragraph 320(7A), however, requires refusal where an applicant has made a false representation in the application, whether or not it was material or made knowingly. A proved false answer about whether a passport was the applicant’s first passport therefore required refusal.

The appellant, an Indian national, applied for entry clearance as the spouse of her sponsor. The Entry Clearance Officer refused the application after she stated that the passport submitted was her first passport, despite an earlier application made with a different passport. The notice also relied on an assertion that false bank documents had supported the earlier application.

An Immigration Judge dismissed the appeal. He found both that paragraph 320(11) applied and that the appellant had not established the substantive requirements for a spouse under paragraph 281 of the Immigration Rules HC 395.

The appeal to the Upper Tribunal concerned the evidential basis for the alleged earlier forgery, the effect of that finding on credibility, and whether the false passport declaration required mandatory refusal.

1. Appeal dismissed. The Immigration Judge erred in finding that paragraph 320(11) applied. The Entry Clearance Officer bore the burden of proving that bank documents used in the earlier application were forged. There had been no appeal from the earlier refusal, no judicial decision on forgery, no relevant admission and no direct evidence of forgery. The previous refusal notice alone could not discharge that burden.

2. The error concerning paragraph 320(11) did not invalidate the Immigration Judge’s credibility assessment. The question whether the sponsor gave frank and truthful evidence was distinct from whether forgery had been proved. The Judge gave independent reasons for rejecting aspects of the sponsor’s evidence, including inconsistencies and the absence of expected supporting material.

3. The Tribunal was not persuaded that the Immigration Judge made a material error of law in finding that the evidence did not establish compliance with paragraph 281 of the Immigration Rules HC 395. The evidence concerning the subsisting marriage, maintenance and accommodation was insufficient and internally inconsistent.

4. In any event, refusal was mandatory under paragraph 320(7A). The appellant’s answer that the passport supplied was her first passport was admittedly untrue. A false representation made in relation to an application falls within paragraph 320(7A), whether or not it is material to the application or made with the applicant’s knowledge. Any explanation could not alter the fact that the representation was false.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal, notwithstanding an error of law in the Immigration Judge’s paragraph 320(11) finding, because refusal was mandatory under paragraph 320(7A) and there was no material error concerning paragraph 281.
• First-tier Tribunal / Asylum and Immigration Tribunal: the Immigration Judge dismissed the appeal against the Entry Clearance Officer’s refusal of 4 June 2009. No citation is stated.