AO v The Entry Clearance Officer, Lagos

The appellant, a citizen of Nigeria, appealed to the Tribunal against the decision of the respondent on 16 August 2007 refusing him entry clearance as a student. The Immigration Judge dismissed the appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.

The reason for the refusal was that, according to the respondent, the appellant had submitted both a bank statement and an educational certificate which did not bear comparison to “known genuine examples”. The Immigration Judge dealt with the matter without a hearing, as he had been asked by the appellant to do. The Entry Clearance Officer, following what appears to be a usual practice, had failed to comply with either the Tribunal’s Procedure Rules (which are a Statutory Instrument) or the Tribunal’s directions: so the papers which should have been before the Immigration Judge were not. As he observed, however,

“Other than a lengthy generalised comment on both the documents the appellant has made no effort to provide documentation either from the Union Bank or from WAEC confirming the authenticity about these documents. It would have been simplicity itself to have written to the bank with the extract with the critical comments in the letter of refusal and enclose a copy of the bank statement and inviting the bank to comment on the allegations and then submitting a copy of the letter to the bank and their reply through the AIT. This elementary step has not been taken and I have no hesitation in finding that this bank statement is not a document upon which the appellant can rely.

One might have thought that a similar procedure to be followed the WAEC [sic]or at least an attempt made to verify the original certificate: I know not whether it would be easy or otherwise to obtain confirmatory documentation but certainly I do hold against the appellant that no attempt has been made to verify this document… .”

The Immigration Judge thus found that he could agree with the Entry Clearance Officer. He dismissed the appeal.

In his grounds for reconsideration the appellant complains that he did indeed send to the Tribunal a letter from his father’s bank confirming that funds were in the account, and a scratch card that would enable the authenticity of his educational certificate to be checked. It was on that basis that reconsideration was ordered. The Senior Immigration Judge wrote:

“The grounds show an arguable case that there was an error of fact amounting to an error of law in that the Immigration Judge did not have before him possibly relevant documents that the appellant might reasonably have expected him to have before him and I order reconsideration on each point taken in the grounds.

Certainly there is now on file a “scratch card”. Exactly how this can be used evidentially may prompt some interesting argument.”

At the hearing before us there was no appearance by or on behalf of the appellant. His representative is, like him, in Nigeria. We decided to proceed with the hearing in his absence.

Mr Avery repeated the concerns set out in the explanatory statement, the bundle now being before the Tribunal, and confirmed that he had no objection to our using the scratch card if we could, and taking into account whatever results we obtained.

We have looked at the documents before us in the light of the grounds for reconsideration. The letter purporting to confirm the appellant’s father’s finances is an unimpressive document. It is dated some two weeks after the date of the Immigration Judge’s determination, so it could not have been before him in any event. The typed content of the letter is very badly out of alignment with the colour printing which purports to authenticate it.

We note what the Immigration Judge said about attempts that might be made by the appellant to secure authentication of financial details from the bank. We would, however, express a reservation. It seems to us that the suggestion that a dispute about a document can be resolved by the appellant’s obtaining another document purportedly from the source needs to be received with some caution. It is difficult to see that a party who had expressed doubts about documents produced by the other party would regard a determination based on further documents produced in the same way as particularly persuasive. It is, however, important to be fair to both sides. The position here was that the Entry Clearance Officer had failed to provide to the Tribunal the documents he was by law obliged to provide. In these circumstances it may be right to allow a certain amount of breadth to the appellant in producing the evidence he needs in order to discharge the burden of proof.

The scratch card is a device enabling the appellant’s educational record to be authenticated on a limited number of occasions by the use of a password at the WAEC website. We used the scratch card as instructed on it, entering the details given to the Tribunal by the appellant. We obtained a result, and noted that it was in the appellant’s name and tallied with the examination number and date of examination that he had given. We printed the result from the computer, signed and dated it and have added it to the file. We suggest that that is the appropriate procedure, and should be adopted in the future in the very rare cases when evidence is properly obtained from the internet.

Although the details of the candidate, the examination number and the examination session are the same as those recorded in the certificate produced to the Entry Clearance Officer and to us by the appellant, the results are not. The WAEC record shows results in nine subjects: the certificate gives only eight. Of those eight, the grades in four are different from those given by the WAEC website. In fact, the record on the website is of a person who was substantially more successful in the examination than the appellant’s certificate shows: that does not, however, help the appellant to establish that the certificate is a genuine document or, perhaps, that it refers to him at all.

The WAEC certificate is clearly unreliable. The letter from the bank looks as though it is. We decline to place any weight on either of them. We agree with the Entry Clearance Officer and the Immigration Judge that the appellant has failed to discharge the burden of proof. We find that the Immigration Judge made no material error of law and order that his determination dismissing this appeal shall stand.