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

LADY JUSTICE KING: This is an application for permission to appeal by JK, who was born on 23 June 1985, from a determination of the First-tier Tribunal (Immigration and Asylum Chamber) of 21 August 2014 that the Appellant had submitted a false document with an application that she had made for leave to remain in this country.

The Appellant does not appear before the court today. The matter has previously been adjourned because on the last occasion the matter was listed before the court, the Appellant fell down a couple of steps within the precinct of the court and it became necessary for her to attend at the local accident and emergency unit at Guy's and St Thomas' NHS Trust.

The report from the hospital prepared and submitted to the court dated 4 February 2016 set out that the Appellant had presented at A and E with lower back and right ankle pain after falling down a few stairs. There were no mid line tenderness or bruises. There was some tenderness over her right ankle, but x-rays were unexceptional so she was discharged with "soft tissue and back injury advice".

The Appellant subsequently asked for this renewed hearing to be adjourned on the basis that she was not sufficiently well to attend. She did not, however, provide a medical certificate, saying at that stage that because of her immigration status she was unable to register with a GP in the UK.

Through me, the proposed Appellant was informed that the matter would not be adjourned and that contrary to her submissions, there was nothing within her immigration status that would prevent her from registering with a GP. Unhappily, she had not provided the court with either a telephone number or an e-mail address, so a refusal of her application to adjourn had to be sent by post.

This morning a letter has been received whereby she renews her request for an adjournment on medical grounds. She said that she had been examined by a private doctor who had confirmed that she should be exempt from the hearing, at which she interpreted as meaning that the hearing should be adjourned to a later date when she was fit to attend.

I have had the benefit of the doctor's letter, which is, in my view, wholly unsatisfactory. It is dated 5 March 2016 and simply says:

"I have reviewed this patient today who suffered a physical and mental trauma in early February. She is due a court hearing in two days. I recommend she is exempt from the same on medical grounds."

There is no assessment of her medical condition, no reference to any sort of physical examination and no reference as to why she is unable to attend.

Accordingly, having the benefit as I have of detailed grounds of appeal and a lengthy skeleton argument, I intend to deal with this matter in the absence of the Appellant, bearing in mind all the submissions she makes within her written material.

The position is that this matter has now been considered, or today will have been considered, by four different judges. On 21 August 2014, as noted, the First-tier Tribunal, Judge Miles, dismissed her application. On 9 December 2014 the Applicant’s appeal from his decision was dismissed by the Upper Tribunal Judge. On 19 June 2015 her application for permission to appeal to this court was refused by Kitchin LJ. The matter now appears again in front of me, on each occasion based on the same facts and putting forward effectively the same submission.

This is clearly a case to which the second appeal test applies. That is to say that permission will not be granted unless some important point of principle or practice or some other compelling reason is put forward on behalf of the proposed Appellant. In my judgment, there is no question of the proposed Appellant satisfying that test.

In brief, on 29 August 2013 the proposed Appellant applied for leave to remain as a Tier 4 (General) student migrant. In support of her application, she submitted what purported to be an official transcript of results from a course she had been attending at St John's College at Gayton Road, Harrow dated 30 April 2013. It appeared to be from the college operating from that address and showed the Appellant's results up to 12 April 2013 relating to exams taken in March.

However, the Respondent Secretary of State visited the college premises on 5 February 2013, a number of months before the date of the certificate, and found that the college had closed and therefore, on 8 February 2013 had written to the college suspending its sponsor licence with immediate effect.

In the decision promulgated on 21 August 2014, Judge Miles found, after having heard the Appellant give evidence and be cross-examined and having had the opportunity of reading her statement in support, that she had submitted various assignments to the college in December 2012, but that on attending the college premises in January 2013 had been told there would be no more classes.

The judge went on to find, as he was entitled to do, that the Appellant had thereafter submitted a false document, namely the transcript of results in support of the application. The judge analysed the Appellant's evidence, which included the fact that after attending the college in January 2013 she did not go back to the college again and made no effort to contact either her college lecturers or the college itself.

The judge was satisfied that the document was false. That led to a mandatory refusal pursuant to paragraph 322(1A) of the Immigration Rules which says:

"Where false representations have been made or false documents or information have been submitted (whether or not material to the application and whether or not to the applicant's knowledge) or material facts have not been disclosed in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application."

The only issue, therefore, was whether on the evidence the Respondent Secretary of State had proved that the document was false.

The First-tier Tribunal found at paragraph 21:

"In my judgment, the only proper inference that can be drawn from the transcript document is that it purported to represent that on the day it was issued the college was in operation and that it was operating from the registered address of Gayton Road, Harrow on the Hill. In my judgment, based on the unchallenged evidence that the college had no presence at those premises on February 5, 2013, together with the fact that the Appellant's evidence is that she was told in January 2013 that there would be no more classes, which is also inconsistent with the information on the transcript letter, I find that the Respondent has proved on the balance of probabilities that the transcript document is a false document and therefore the appeal must fail under rule 322(1A) HC 395."

The Appellant's case, as put in writing and before the courts below, is that there was an important point of principle and/or practice which means that she should overcome the high bar of the second appeals test. She argues that the question raised is whether the Respondent can rely on the apparent closure or movement of a sponsoring college to argue that a document is false. The Applicant says that since this case about the interpretation of a rule central to all points-based systems applications, it has a very wide reaching impact which requires a grant of permission to appeal.

In her substantive submissions, she goes on to allege that the Secretary of State did not do enough to verify the document was fake such as contacting the college offices or to confirm that it was not issued by them and that the immigration judges failed to appreciate her account.

Having carefully read the judgment and the submissions of the Applicant, I have no hesitation in dismissing the application. Deputy Upper Tribunal Judge Trabu found that Judge Miles had made no error in finding as he did and observed that the document had told manifest lies, in that it had stated that the Applicant was a student at the college and had secured certain results in an examination in March which clearly had not taken place.

I agree with Kitchin LJ, who said in refusing permission on paper that what the Applicant now seeks to do is to re-argue her case again on essentially the same grounds that she deployed before the Upper Tribunal. In my judgment, such an appeal would not have a real prospect of success and does not raise an important point of principle or practice and there is no other compelling reason for an appeal to be heard.

Accordingly, I would dismiss the application for permission to appeal.