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

LORD JUSTICE CHRISTOPHER CLARKE: This is an application to appeal from a decision of the Upper Tribunal, refusing an appeal from the First-tier Tribunal. The Upper Tribunal decision was reached on 4th February 2015 and that of the First-tier Tribunal on 2nd July 2014.

On 9th January 2014 the Secretary of State decided to refuse the appellant, who is a Nigerian national, leave to enter the United Kingdom and to remove him. Her reasons are contained in a letter which appears to be dated 11th December 2013 but I have some doubts as to the accuracy of that date.

The appellant entered the United Kingdom on the 14th November 2008 as a highly skilled migrant with a leave valid until 26th September 2010. On 28th September 2010 he was granted leave to remain as a Tier 1 (General) Migrant until 14th November 2013. On 5th November 2013 he applied for indefinite leave to remain as a Tier 1 (General) Migrant. That was refused by the Secretary of State in the decision from which the appeal is sought to be brought.

For the tax year April 2010/2011 the appellant received income of some £25,000 from his employment with London and South East Railways. He did not, as he had in previous years, declare any self-employed income. His self-employed income for that year had however been included in his application for leave to remain. He was requested by a letter, written on the Secretary of State's behalf, to provide an explanation for the absence of his self-employed earnings for the relevant year from his Tax Return.

A letter was written by his solicitors saying that his accountants at the relevant time had filed his Self Assessment Returns with HMRC; that he had noticed that they had made an error on the Returns for the 2010/2011 year by not including his self-employed earnings and that the error was in the process of being corrected by his current accountants. A letter of 30th December 2013 was produced from his current accountants which said that it had been brought to their attention that the Self Assessment Returns for 2010/2011 inadvertently omitted to include his self-employed earnings in the sum of £3,140.

In her Decision Letter the Secretary of State did not consider it credible that a reputable accountant would fail to submit correct information. She observed that the appellant had only contacted HMRC and notified them of the discrepancy after he was asked to provide his tax returns for 2010/2011. She concluded that the applicant had declared self-employment income to UK Visas that was not consistent with the income he had disclosed to HMRC. Accordingly she refused the application pursuant to rule 322(5) which provides as a ground on which leave to remain should normally be refused:

The appellant told the First-tier Tribunal that he had instructed his accountant to prepare and file his Self Assessment Tax Return to HMRC regularly each year at the year-end and they advised him of his tax liability. His understanding and instructions were that they should always file his Self Assessment Tax Returns taking into account his total earnings from salaried employment and self-employed earnings, which figures he usually made available to them and they told him what he needed to pay.

In November 2013, in the course of providing further required documentation to the Secretary of State, he was alerted to errors made in his Self Assessment Tax Returns by what he then described as his previous accountants. He contacted them. They found serious errors for which they had apologised. There was before the Tribunal a letter of the 20th January 2014 in which the previous accountants said that the relevant figure for self-employed earnings had been erroneously omitted and took full responsibility for the error.

The appellant said that he had lodged an official complaint with them in relation to the erroneous omission of his self-employed earnings for 2010/2011. This was after his application had been refused by the Secretary of State. His evidence was that he did not deliberately fail to pay his tax for 2010/2011, he had dismissed his previous accountants in October 2013 but that was solely because of the inconvenience in travelling to them and he had made no formal complaint to the Institute of Chartered Accountants. He gave his previous accountants the relevant figures, paid the fees, signed the blank Tax Return form and left it to them to complete the details.

The First-tier Tribunal judge was satisfied that the appellant had adopted an entirely cavalier and dishonest approach to Tax Returns to HMRC. He was, so the First-tier Tribunal held, well aware of the importance of submitting accurate and correct documentation. His signature of blank forms to HMRC reinforced this cavalier approach and the dishonesty which he had practised and he had not pursued any formal complaint with his previous accountants' professional body because, so the First-tier Tribunal held, he was complicit in all that had occurred.

The judge found the appellant had not provided any basis for challenging the decision of the Secretary of State. He found that the appellant had not discharged the burden of proof and that the reasons given by the Secretary of State justified the refusal of leave to remain.

On appeal the Upper Tribunal was satisfied that the First-tier Tribunal was fully aware of the letter of 20th January 2014 from the former accountants since it had been referred to twice in the judgment of the First-tier Tribunal. The Upper Tribunal observed that the First-tier Tribunal was not obliged to take the letter at its highest and was satisfied that the First-tier Tribunal had had adequate reasons not to accept the account of the appellant as to what happened, namely that all the responsibility lay only with his accountant. The Upper Tribunal was satisfied that the First-tier Tribunal took the correct approach to the burden of proof.

Miss Karen Reid, on behalf of the appellant, submits that the explanation of accountant error met the threshold of minimum level plausibility referred to in the authorities and in particular in Shen [2014] UKUT 236 (IAC), so that the onus of proof of dishonesty shifted to the Secretary of State. But, so she submitted, the First-tier Tribunal did not acknowledge or recognise in its decision that in relation to the allegation of dishonesty the burden of proof was in the circumstances on the Secretary of State. She places particular reliance on paragraph 6 of the First-tier Tribunal judgment where the judge said:

Reliance is also placed on paragraph 41 where the judge says:

So, as Miss Reid submits, the judge has not acknowledged that in the circumstances of the present appeal the burden was ever at any stage reversed, rather he must have assessed the evidence with a view to establishing whether the appellant had provided cogent evidence that dishonesty did not occur.

I do not accept this. Paragraph 6 is infelicitously worded because it appears to refer, in the first sentence, to the general burden of proof which rests on the appellant and in the second sentence to an onus which rests on someone who seeks to establish a serious allegation. That naturally relates to the person who makes the allegation.

It is however, as it seems to me, clear from paragraph 41 that the judge in coming to his conclusion adopted the correct standard of proof because after the words which I have already quoted from paragraph 41, which refer back to the second sentence of paragraph 6 and naturally relate to the person who is making the allegation, he says this:

It seems to me that in that paragraph the judge is asking himself whether he is satisfied so that he is sure, in the light of the evidence that has been presented to him by the Secretary of State, who made the allegation, that the allegation was well-founded.

If he had got the onus wrong he would in effect have been saying that he was not satisfied that the appellant was not dishonest. Indeed Miss Reid submitted that the judge's approach involved requiring the appellant to disprove, and to a higher standard than the general standard of balance of probabilities, the allegation that was made against him. In my judgment paragraph 41 simply cannot bear that construction. I regard it as somewhat implausible that any judge could think that there was an onus of proof on the appellant to prove want of dishonesty to the higher civil standard.

Consistently with paragraph 41 the judge expressed himself satisfied that taking it in the round and bearing in mind the burden and standard of proof, the appellant had not provided any basis for challenging the assertions analyses and conclusions in the respondent's notice of immigration decision and her letter giving reasons for refusal and that:

That appears to me to be a finding that the Secretary of State had established to her satisfaction the dishonesty of which she complained.

So far as those findings were concerned, the First-tier Tribunal was of course aware of the accountant's letter but the judge was, as the Upper Tribunal held, not obliged to take it at face value. It seems to me that he was entitled to take the view, which it was for him to form, on all the evidence and having heard from the appellant that his self-employed earnings had not been declared and that this was dishonest and not a mistake. In particular, he was entitled to rely, firstly, on the fact of non disclosure of those earnings which the appellant knew he should provide, secondly, the unlikelihood of accountants not including self-employment earnings in like manner as they had done before, if they had in fact been supplied to them; thirdly, the lax method of operation by the provision of signed blank forms; and fourthly what the First-tier Tribunal made of the evidence of the appellant whom they saw and as to the quality of whose evidence they were able to make judgments. Lastly, it is material to note that although the letter of 20th January 2014 refers to the relevant information being erroneously omitted by the accountants and to their taking full responsibility, there was, apart from the oral evidence of the appellant, no evidence of the dispatch or receipt of the relevant information.

Accordingly, for those reasons and despite Miss Reid's able submissions, I am not satisfied that there is a realistic prospect of an appeal succeeding or that there is some other compelling reason for an appeal. Nor would any appeal raise any important question of principle or practice.

Accordingly for those reasons, I propose to refuse permission to appeal.