SK (Bangladesh) v Secretary of State for the Home Department

An appeal to the Upper Tribunal is confined to identifying a material error of law in the First-tier Tribunal’s decision. It is not an opportunity to re-argue the merits. Where applicants choose a paper hearing, fail to challenge a document verification report and provide no evidence addressing it, the First-tier Tribunal may rely on that report. On a second appeal, permission requires an arguable error of law in the Upper Tribunal’s decision and, additionally, a point of principle of general importance or another compelling reason. Sympathy for the applicants’ position cannot satisfy those requirements.

SK (Bangladesh) v Secretary of State for the Home Department concerned a Tier 1 entrepreneur application. The appellants relied on a bank statement to show access to the required funds, but verification checks concluded that the statement was not genuine.

The First-tier Tribunal dismissed the appeals under the Immigration Rules, while allowing the appeals against removal to the limited extent that removal was not in accordance with the law. The Upper Tribunal allowed the Secretary of State’s appeal concerning removal and dismissed the appellants’ appeal concerning the Immigration Rules decision. The appellants renewed their application for permission to appeal. The central questions were whether there was an arguable material error of law and whether there was any point of principle of general importance or other compelling reason for a second appeal.

1. Disposition. Lord Justice Sullivan refused the renewed application for permission to appeal. There was no arguable error of law in the Upper Tribunal’s decision concerning the refusal of the application under the Immigration Rules, and no compelling basis for a second appeal.
2. Document verification report. The appellants had not challenged the document verification report before the First-tier Tribunal. They had not elected an oral hearing and had produced no documentary evidence addressing the report. The report recorded that the bank confirmed that the account existed but that the balances did not correspond with the actual balances on the relevant dates.
3. Failure to raise the issue below. The submission that the report was hearsay was a point which could have been made to the First-tier Tribunal, but was not. In those circumstances, the First-tier Tribunal was entitled to rely on the report and conclude that the documents submitted with the application were not genuine.
4. Scope of Upper Tribunal review. The Upper Tribunal could reverse the First-tier Tribunal only if it was satisfied that the First-tier Tribunal had made a material error of law. Permission to appeal was not an opportunity to re-argue the merits. Although the Upper Tribunal had identified a material error concerning the removal decisions, it had identified no such error concerning the Immigration Rules application.
5. Second appeal. There was no point of principle of general importance or other compelling reason for the Court of Appeal to hear a second appeal. The applicants’ predicament attracted sympathy, but sympathy could not establish the required legal basis.

• Court of Appeal (Civil Division): on 10 June 2015, refused the renewed application for permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): determination dated 15 July 2014 and promulgated the following day; allowed the Secretary of State’s appeal concerning removal and dismissed the appellants’ appeal concerning the Immigration Rules application.
• First-tier Tribunal: dismissed the appeals under the Immigration Rules and allowed the appeals against removal to the extent that removal was not in accordance with the law.