A new case from the Upper Tribunal, Shen (Paper appeals; proving dishonesty)  UKUT 00236 (IAC), deals with dishonesty or deception alleged against the Appellant for leave to remain. It also highlights a particular problem faced by the First-TierTribunal (FTT) in relation to dealing with allegations of dishonesty on paper appeals. A finding of dishonesty can have catastrophic consequences for the appellant in social and economic terms and is not to be made lightly.
Facts of the Case
In 12 February 2014, designated Judge Zucker in the FTT dismissed on paper, Yalian Shen’s (Appellant) appeal against the decision of the Secretary of State of the Home Department (Respondent). The Appellant’s application for Leave to Remain in the UK as a Tier 4 Student was refused on 18 September 2013.
A decision to remove the Appellant under section 47 of the Immigration, Asylum and Nationality Act 2006 was made by the Secretary of State of the Home Department (SSHD). The basis of the decision was that the Appellant failed to meet the requirements of paragraph 245ZX(a) of the Immigration Rules.
The Home Office had felt that the Appellant had failed to disclose her driving offences.
“At section J on the Tier 4 (General) application form you declared that you have no criminal convictions (including traffic offences), civil judgments and/or charges made against you in the United Kingdom or any other country. Through routine checks made by the Home Office we have information that you have not disclosed your driving offences. Therefore your application for Tier 4 (General) Student has been refused under the published Immigration Rules.”
It should be noted that the three convictions that the SSHD relied upon to refuse the Appellant’s application, all related to a single incident on 11 May 2012. The Appellant’s reason for not including the traffic offences in her application was that she was informed by the police that she would receive a letter by post disclosing the penalty charges. She moved addresses twice, but noted that she had informed the police to ensure that she would receive the letter. After not receiving the letter, she assumed that the penalties had been dismissed.
Judge Zucker issued his determination on 12 February 2014 dismissing the appeal. The Judge in paragraphs 1-3 recites, briefly, the facts that we have referred to, in somewhat greater length, above. In paragraph 4 he states:
“In a case such as this the burden is upon the Secretary of State to demonstrate on balance of probabilities that the Appellant does fall for refusal under the general grounds.”
Determination and Reasons
Mr Justice Green in the Upper Tribunal stated that not enough evidence was found against the Appellant to prove her dishonesty. The SSHD did not challenge the Appellant’s claim that she had informed the police of her change of address and therefore had no reason to believe that she had charges against her. He determined:
“In our view if the Judge entertained doubts as to the Appellant’s story, he should have sought to investigate further. He could have exercised the powers that he has pursuant to rules 45 and/or 51 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to require, for example, the Appellant to adduce supporting documentary evidence, or the SSHD to comment upon the Appellant’s evidence and adduce such evidence as the SSHD considered appropriate to refute the Appellant’s evidence. In extremis the Judge could remit the matter for oral hearing. A further alternative would have been for the Judge to have allowed the appeal but to have remitted the matter to the SSHD to be re-taken, this time with a proper focus upon the evidence, with the Appellant’s explanations and evidence now clearly upon the table, and having regard to the dishonesty test.”
Mr Justice Green set aside the FTT’s decision and granted the Appellant leave to remain.
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