OS (Nigeria) v Secretary of State for the Home Department

Where dishonesty is alleged in an immigration appeal, the person making the allegation bears the burden of proving it on the balance of probabilities. The seriousness of the allegation affects the cogency required of the evidence, but does not alter the civil standard or transfer the burden to the appellant. A tribunal must not require an appellant to prove the absence of dishonesty. It may reject an accountant-error explanation after considering the evidence as a whole, including non-disclosure, implausibility, signed blank tax forms, witness evidence and lack of corroboration. Permission to appeal should be refused where there is no realistic prospect of success, no other compelling reason and no important question of principle or practice.

The Secretary of State refused a Nigerian national indefinite leave to remain after identifying a discrepancy between self-employed income declared in his immigration application and income reported to HMRC. The refusal was made under rule 322(5). The First-tier Tribunal found that the omission was dishonest and dismissed the appeal. The Upper Tribunal upheld that decision on 4 February 2015. The applicant sought permission to appeal to the Court of Appeal, arguing that the First-tier Tribunal had wrongly placed the burden of disproving dishonesty on him and had failed to give proper weight to evidence that his accountants had made an error.

1. Permission refused. The Court was not satisfied that the proposed appeal had a realistic prospect of success or that there was another compelling reason for it. It would not raise an important question of principle or practice.
2. The First-tier Tribunal’s reference to the general burden resting on an appellant was infelicitously expressed, but its reasoning read as a whole showed that it applied the correct approach. A serious allegation is to be proved by the person who makes it. The applicable standard remains the balance of probabilities, although the seriousness of the allegation affects the cogency expected from the evidence. The Tribunal did not require the applicant to prove the absence of dishonesty to a higher standard.
3. The First-tier Tribunal was entitled to reject the explanation that the omission resulted from accountant error. It was not required to accept the accountants’ letter at face value. It could assess the evidence as a whole, including the failure to disclose the earnings, the implausibility of the suggested accounting error, the applicant’s practice of signing blank tax forms, its assessment of his oral evidence, and the absence of evidence that the relevant information had been sent to or received by the accountants.
4. The Upper Tribunal was therefore entitled to conclude that the First-tier Tribunal had adequate reasons for its findings and had applied the correct burden and standard of proof. Permission to appeal was refused.

1. Court of Appeal (Civil Division) — application for permission to appeal refused: [2015] EWCA Civ 625.
2. Upper Tribunal — appeal from the First-tier Tribunal refused on 4 February 2015.
3. First-tier Tribunal — appeal against the Secretary of State’s refusal dismissed on 2 July 2014.