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

LORD JUSTICE SULLIVAN: This is a renewed application for permission to appeal against a determination of the Upper Tribunal dated 15 July 2014 and promulgated the next day dismissing the Appellants' appeal against the decision of the First-tier Tribunal.

What had happened was that this was a Tier 1 application and in order to obtain the necessary points, the Appellants had to produce evidence that they had sufficient funds to set up in business as Tier 1 entrepreneurs, that is to say they had over £200,000 to set up in business.

They submitted in their application form that they had access to funds in the Agrani Bank in Bangladesh. Their application was rejected because on verification checks it was concluded that the bank statement from the Agrani Bank was not a genuine one.

The Appellants appealed against that decision. They did not ask for an oral hearing and importantly for present purposes, they did not in their grounds of appeal or any of the material provided in support of their grounds challenge the document verification report.

So perhaps unsurprisingly, the First-tier Tribunal Judge, noting the seriousness of the allegation and noting that no attempt had been made to rebut it, concluded that the documents submitted with the application were not genuine. The First-tier Tribunal Judge dismissed the appeals under the Immigration Rules, but did allow appeals against the removal decision to the extent that they were not in accordance with the law.

On the appeal to the Upper Tribunal, the Secretary of State's appeal against the decision on the removal decision was allowed and the Appellants' appeal against the First-tier Tribunal's decision on the Immigration Rules application was dismissed.

The Upper Tribunal dealing with the Appellants' application under the Rules said that the appeals had been considered by the First-tier Tribunal on the papers and further said that there had been no attempt to contradict what was said in the document verification report.

Although the document verification report is not in the bundle, I have been shown a copy by Miss Qureshi. It referred to a conversation between a case worker and a bank representative in which the representative of the bank confirmed that the bank's record showed that the account existed in the relevant name, but that the balance amounts were not consistent with the actual account balances on the two relevant dates.

Miss Qureshi submits that this was simply hearsay evidence and should not have been relied upon. The difficulty is that that is a point that might have been made to the First-tier Tribunal, but it was not. For whatever reason, there was simply no challenge to the document verification report before the First-tier Tribunal.

As the Upper Tribunal pointed out, the question was not so much whether there might be an argument about deficiencies in the document verification report, the fact was that there was no challenge to it before the First-tier Tribunal. As the Upper Tribunal said:

So in those circumstances, the Upper Tribunal concluded that the First-tier Tribunal had been entitled to rely on the DVR. There was simply no error of law.

It seems to me that whilst one can have the greatest sympathy for the predicament of the Appellants, the fact of the matter is that there is no arguable error of law in the First-tier Tribunal's decision and that is the only basis on which an appeal could properly be made to the Upper Tribunal.

The application for permission to appeal to the Upper Tribunal was not an opportunity to re-argue the merits. The Upper Tribunal could only reverse the First-tier Tribunal's decision if it was satisfied that it had made a material error of law. It had made a material error of law in respect of the removal decisions, but no material error of law in respect of the refusal of the Appellants' application under the Immigration Rules.

I appreciate the fact that at the end of the day this may well leave the Appellants without any further remedy and they have my sympathy, but I am quite unable to say that there is any arguable error of law in the Upper Tribunal's decision, much less is there any point of principle of general importance or other compelling reason why the Court of Appeal should hear a second appeal.

So notwithstanding Miss Qureshi's submissions, and I would add she has said everything that could possibly be said on behalf of the Appellants, I am afraid that this renewed application for permission to appeal must be refused.