SY (India) v Secretary of State for the Home Department

This is a renewed application for permission to appeal, it having been refused on paper by Underhill LJ. The proposed appellant, Mr Surresh Yeddu, has appeared in person today and made additional submissions, to which I will refer in a moment. Given the nature of those submissions I propose to make clear, at the outset of this judgment, that I am not reconsidering the decision made by the Secretary of State for the Home Department as to whether or not Mr Yeddu should be given permission to remain in this country.

This is a second appeal. The application is for permission to appeal the decision of the Upper Tribunal judge. I can only grant permission if the appeal raises an important point of principle or practice or if there is some other compelling reason for the Court of Appeal to hear it.

The applicant’s application for leave to remain as a Tier 1 (General) Migrant was rejected on 9 December 2013 on the grounds that the evidence provided did not show sufficient funds and also because the Secretary of State was satisfied that a bank letter, provided by the applicant in support of his application, was not genuine. The application was found not to meet the requirements of the Immigration Rules.

The notice of appeal from that determination states simply, and baldly, that the decision was not in accordance with the Immigration Rules and that the decision was unlawful. Those grounds were stated without elaboration. At the hearing on 25 April 2014, before the First-tier Tribunal, the applicant first asked for an adjournment. A previous application for an adjournment had been made on his behalf by letter dated 23 April and had been rejected. The application made at the hearing for an adjournment was also rejected. The substantive appeal was rejected. The judge considered that the application had been correctly refused under the Immigration Rules and that the applicant had dishonestly made a false representation.

The appellant was given permission to appeal to the Upper Tribunal on the basis that the First-tier Tribunal judge had arguably misdirected himself in law by failing to consider the discretionary nature of a decision under the relevant paragraph of the Immigration Rules.

The appeal was determined by Judge Perkins on 22 October 2014 and was dismissed. He found that the applicant had had ample time to prepare his case, so that the First-tier Tribunal judge was right to dismiss the application for an adjournment. He also found no error of law in the judge’s decision that the accounts did not show sufficient funds. Additionally, the judge had been entitled to find, on the evidence, that the letter was false. Judge Perkins refused to admit a new letter put forward by the applicant from the bank because it had only been disclosed on the morning of the hearing, precluding any further proper inquiries.

There are five grounds of appeal. First, that the First-tier Tribunal judge was wrong not to adjourn the hearing. Secondly, that the judge had applied the wrong immigration rule and also the wrong burden and standard of proof. Thirdly, that the Upper Tribunal Judge was wrong not to find an error of law. Fourthly, the Upper Tribunal judge should have admitted the new evidence. Fifthly, a general ground, that there are good reasons for the grant of permission to appeal.

In his succinct and clear submissions today Mr Yeddu has provided four points in support of his application for permission to appeal. First, the refusal of leave to remain was based on a shortfall of £5.00 for five days. I point out, immediately, that it was not only because of a shortfall of funds but also because of the conclusion that the bank letter was false. Secondly, and this relates to the letter provided by the applicant, when the Home Office called the bank in India there was a new person there who was not able to provide the proper information. Thirdly, the applicant himself called the bank and he brought positive evidence to the court. It was late because he had not been able to go to India and could only seek to obtain the evidence by telephone. Fourthly, the applicant urges upon me that he is now very integrated into life here and is working as a civil engineer mainly dealing with flood related matters.

I propose to address the arguments advanced by the applicant by reference to the grounds of appeal. As to the first, I agree with Underhill LJ that the First-tier Tribunal judge was entitled to decide not to adjourn the hearing. In my view, there is no prospect of the Court of Appeal being persuaded that this was wrong. As to the second ground, it was submitted before Judge Perkins that the evidence was not sufficient to justify the Secretary of State concluding that the bank letter was false. References were made to the burden and standard of proof. I again agree with Underhill LJ that the First-tier judge’s finding that the document was false was not an error of law. He was entitled to find on the evidence that the respondent had proved that fact. Ground 3 is a repetition of ground 2. As to ground 4, it was well within Judge Perkins’ discretion not to admit the new evidence given its very late production. Ground 5 adds nothing.

Having carefully considered the applicant’s grounds of appeal and the additional points made by him in the course of his submissions today, I am satisfied that permission to appeal should not be granted. There is no real prospect of the appeal being successful. In my judgment, no important point of principle or practice is raised. Accordingly, I refuse the application for permission to appeal the Upper Tribunal’s decision.