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

This is a renewed application for permission to appeal against a decision of the Upper Tribunal in relation to the Secretary of State's refusal of the applicant's application for further leave to remain in the United Kingdom as a Tier 4 (General) Student.

The original application was refused by the Secretary of State in a decision letter dated 14 May 2013 on three separate grounds. The first is that, on the basis of a report from the overseas verification team, which was itself based on information received from the applicant's bank in Bangladesh, the Secretary of State concluded that the bank statements which had been provided by the applicant in order to substantiate that he has the requisite level of funds to claim the necessary 10 points under Appendix C of the Immigration Rules were forgeries. The verification report (a copy of which we do not have but which I am told by counsel sets out these details) records, essentially, on the basis of the information received from the bank, that the various debits and credits on the statements submitted by the applicant do not match the records held by the bank.

On that basis, the Secretary of State in the decision letter refused the application, firstly, on the grounds that there had been a submission of fraudulent documents but, secondly, that the documentary material in relation to the bank account, even if it had been submitted in some way innocently, was not evidence sufficient to substantiate the necessary level of funds, with the result that the applicant's application did not merit the 10 points available for funds under Appendix C of the Rules.

The third ground for refusing further leave was that the Secretary of State was not satisfied that the applicant was competent in English up to the minimum level of B2 in the Common European Framework of Reference for Languages, with the result that the applicant had not satisfied the condition for the award of the 30 points under Appendix A and Appendix O of the Immigration Rules.

The applicant appealed to the First-tier Tribunal and at the hearing in the First-tier Tribunal the third of the three grounds that I have referred to (that is to say lack of proficiency in the English language) was no longer relied upon, so that the sole issue to be determined on the appeal was whether or not the Secretary of State had proved to the requisite standard of proof (that is to say to the balance of probabilities) that the bank statements and the information recorded in them were false.

The judge of the First-tier Tribunal was presented with two material matters to consider. First of all, it was submitted, as indeed it is on this application, that the hearsay nature of the evidence contained in the document verification report was not to be given sufficient weight to satisfy the requisite standard of proof, at least absent written confirmation from the bank that the details of the telephone conversation which are recorded in the document in court were accurate. Guidance to the effect that there should be some form of written confirmation was placed on a border agency document which states "Ideally you should ask the authority which issued the document information to confirm in writing that it is not genuine".

So far as one can judge from the Secretary of State's decision letter, the documents submitted by the applicant were forwarded to Bangladesh for consideration by the overseas verification team and, I think it is reasonable to suppose, were shown to the bank, or at least the details were forwarded to the bank, for their consideration. What is missing is written confirmation from the bank that the details do not match.

So it was said that the Secretary of State had not complied with its own published guidance on this matter. But over and above that, the applicant also produced his own evidence in the form of a letter from the bank purporting to confirm that the evidence which he had supplied the Secretary of State was accurate.

The judge of the First-tier Tribunal directed himself, in my view, correctly both as to the burden and standard of proof. He says in paragraph 6 of his decision that the burden of proof was on the appellant unless, as in the present case, an application was refused under Part 9. In such a case the burden of establishing the application to refuse in accordance with the provisions of Part 9 lies with the Secretary of State. The normal standard of proof is the balance of probabilities and where Part 9 applies the burden of proof is the higher standard of probabilities.

So there is no challenge to the judge's direction on the law and ultimately, therefore, it was a matter for him to consider whether or not the evidence that he had, taken in the round, was sufficient to satisfy the requisite burden of proof. The judge decided that the evidence adduced by the Secretary of State did discharge the necessary burden and dismissed the appeal.

Permission was granted to appeal from his decision on the grounds inter alia that given the serious nature of the allegation the evidence before the tribunal was not of the requisite strength to raise a justifiable suspicion that a false document had been provided.

That was the issue which was then considered by the Upper Tribunal on the further appeal. The Upper Tribunal, having referred to the decision letter and the decision of Judge Brenells in the First-tier Tribunal, came to the conclusion that there had been no breach as such of the Secretary of State's published guidance, which states in terms that “ideally” you should ask the authority which issued the document information to confirm in writing that it is not genuine. Counsel accepts that that does not lay down an absolute rule and the question of whether or not a confirmation in writing is necessary really goes to the weight to attach to the evidence contained in the report.

The Upper Tribunal rejected the appeal having considered the evidence that the applicant had himself adduced in relation to the bank statements. It came to the conclusion that that evidence was not sufficient to refute the substance of the bank's evidence contained in the documentation report because it was not clear on reading the letter what bank statements it was referring to.

These are, at the end of the day, simply questions of weight and the need to be satisfied according to a well-established standard of proof that the burden on the Secretary of State to show that the financial information was false has been discharged. They are, therefore, essentially, matters of judgment for the fact-finding tribunal and not issues which ordinarily would give rise to any errors of law. Although I entirely accept that the judge of the First-tier Tribunal who gave permission for the appeal to the Upper Tribunal thought that there was at least an argument that the evidence was not of sufficient weight to discharge the burden of proof, it is clear that the Upper Tribunal did not take that view and, in my judgment, they were entitled to reach the conclusion which they did. The reality is that the Secretary of State adduced evidence, albeit in hearsay form, from the bank confirming that the various debits and credits on the applicant's bank statements did not match their own internal records. There is no reason to suppose, notwithstanding the absence of confirmation in writing by the bank, that the information provided by the bank was inaccurate. It was always open to the applicant himself, as he tried but failed to do, to produce his own evidence from the bank to contradict what is set out in the verification report.

Having failed to do so, it seems to me it was entirely open to the tribunal to decide that the Secretary of State's evidence was sufficient to discharge the burden and to substantiate a finding that the financial information was inaccurate.

For the same reason, the challenge on Article 6 grounds also fails.

There is, however, a further point, which is that this being a second appeal, it is necessary for the applicant to demonstrate that the appeal would raise an important point of practice or principle or that there is some other compelling reason why permission should be granted. It seems to me that a dispute about whether or not the evidence was of sufficient weight to discharge the necessary burden of proof does not fall into that category.

So for those reasons, I dismiss the application.