July 21, 2019

Court of Appeal takes a strict stance on adducing new evidence to the Upper Tribunal

Kabir v The Secretary of State for the Home Department [2019] EWCA Civ 1162 (09 July 2019)

On the topic of fresh evidence (in the context of deception, false documents, bank statements) the Court of Appeal has held that the Upper Tribunal was right to refuse to admit fresh evidence in an immigration appeal where a Tier 1 (Entrepreneur) from Bangladesh had failed to follow the procedure in rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Underhill, McCombe and Haddon-Cave LJJ judged that the Upper Tribunal had been entitled to take into account the principle in Ladd v Marshall [1954] EWCA Civ 1 that the new evidence could, with reasonable diligence, have been made available to the First-tier Tribunal on the initial appeal. Delivering the main judgment, McCombe LJ held that the present case was not one where the new material inevitably resolved the factual issue in the favour of the appellant. Furthermore, it was not a case of clear misapprehension of established and relevant fact. McCombe LJ explained that the principal issue before the court was whether the Upper Tribunal was wrong to refuse to admit on the appeal to it certain fresh evidence which had not been before the First-tier Tribunal. The underlying issue in the case before both tiers of the tribunal related to the genuineness of certain banking documents submitted by Mr Md. Iqbal Kabir with his application for leave to remain. Mr Kabir arrived in the UK as a student in 2009 and extended his stay on that basis until the end of 2012.

Prior to the expiry of his leave he applied for further leave remain in the UK as a Tier 1 (Entrepreneur) and used a letter and bank statement, appearing to have been issued by Brac Bank Limited concerning an account in the name of AKM Monirul Hoque, with a closing balance of 3,05,73,219.10, claimed to be greater than the £200,000 required for an applicant to be granted leave. Accompanying this was a supporting statement from the account holder that he was willing to make this sum available equally to Mr Kabir and his intending business partner, Mr Mohammed Sayed, for the purposes of their planned restaurant business. It was only after two years in February 2015 that the Home Office began inquiries regarding the genuineness of the documents. As a result the Associate Product Manager of Brac Bank responded that the certificates and statements were not issued by the bank. Thus, the decision-maker refused the application under paragraph 322(1A) of the Immigration Rules because false documents had been submitted. Mr Sayed also received a decision along these lines.

First-tier Tribunal

In their appeal to the First-tier Tribunal, Mr Kabir and Mr Sayed provided a letter from a branch manager that the documents submitted with the application were authentic. The letter was dated 11 May 2016. The First-tier Tribunal adjourned the appeal to permit the Home Office to verify the new letter. That process resulted in a Document Verification Report (“DVR”) from the High Commission in Dhaka stating that the earlier letter was not genuine.

The Presenting Officers Unit sent the DVR to Mr Kabir’s former solicitors, but the person concerned failed to take timely notice of it. Six weeks later, when the scheduled for hearing again, it came to the attention of the solicitors who asked for an adjournment to obtain further evidence. But the request was refused and the First-tier Tribunal held that the decision-maker had been justified in refusing the application for further leave to remain. The judge decided that the decision-maker had been justified in refusing the application for leave to remain in the UK, relying upon paragraph 322(1A) of the rules. The judge also rejected the two appellants’ claims based upon article 8 of the ECHR but there was no finding that the assertion in the refusal letter about the use of deception was correct.

Upper Tribunal

Mr Kabir appealed to the Upper Tribunal on the basis that the First-tier Tribunal had been wrong to refuse the adjournment to allow him to respond to the DVR. The Upper Tribunal decided that there was no basis for criticising the First-tier Tribunal refusal to adjourn. Mr Kabir’s application for permission to appeal to the Upper Tribunal, which was granted by the First-tier Tribunal, included new evidence, said to have been obtained from the bank, namely (a) a letter dated 13 November 2016 from the manager of the Natun Bazar branch of the Bank, i.e. the same branch from which the letter of 11 May 2016 and the original documents from 2012 were said to have originated, (b) the manager’s business card, (c) a further declaration from Mr Hoque, the account holder, and (d) documentation tracking the delivery of the documents from Bangladesh.

The Upper Tribunal dismissed Mr Kabir’s appeal. It held that there was no basis for criticising the First-tier Tribunal’s refusal to adjourn. It also refused to admit the new evidence, partly on the basis that notice of the desire to adduce the new evidence had not been given in proper form and the judge opined:

9. Admitting this evidence could lead to the hearing descending into a non-fathomable realm of allegation and rebuttal. The fact is that the Secretary of State, by officers of the High Commission, tried to examine the evidence, took a view, disclosed it to the appellants and the appellants did not take advantage of the opportunity to get their evidence together before the First-tier Tribunal.

The Upper Tribunal refused permission to appeal. Aggrieved, Mr Kabir argued that he served proper notice to include new evidence with the Upper Tribunal and while granting permission Longmore LJ took the view that “it is arguable that, once the further evidence sought to be adduced in response to the DVR was before the Upper Tribunal (even if only informally), it ought to have been considered rather than being dismissed because it could lead to the hearing descending into a non-fathomable realm of allegation and rebuttal.” He opined that on the face of it, the letter dated 13 November 2016 from the manager of the bank’s Natun Bazar branch “carries some conviction.”

The Court of Appeal

Dismissing the appeal Underhill, McCombe and Haddon-Cave LJJ decided that the view of the Upper Tribunal had been correct and it had been entitled to take into account the principle in Ladd v Marshall.

In addition to the decision of the Upper Tribunal, the Home Office submitted that (a) the fresh evidence did not meet the requirements for being admitted on an appeal, either pursuant to the principles in Ladd v Marshall or those appearing in E & R [2004] EWCA Civ 49, (b) the fresh evidence application did not comply with the procedure required by Rule 15(2A) of the 2008 Rules, and (c) even if the new evidence relied upon had been admitted, on the findings made by the First-tier Tribunal, the judge would nevertheless have dismissed the appeal.

(i) Procedure for adducing new evidence

McCombe LJ said that Mr Kabir had failed to comply with the correct procedure to adduce new evidence and this was very obvious from the terms of rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 which requires that a party wishing to adduce new evidence in an appeal to the Upper Tribunal “must send or deliver a notice to the [UT] and any other party” setting out the nature of the evidence and explaining why it was not submitted to the First-tier Tribunal. The proper practice is to use the standard application notice (Form T484) for this purpose and in the present case the solicitors in question failed to issue any such application notice and simply stated the desire to adduce the new evidence in the grounds of appeal by appending copies of the new documents to those grounds. The use of form T484 entails a £255 fee.

(ii) Refusal of adjournment

McCombe LJ found it “impossible” criticise the First-tier Tribunal’s decision to refuse the request for a second adjournment on the material then available to it. There had been one adjournment already and Mr Kabir’s solicitors squandered the opportunity to seek out further evidence in the period that was available to them before the date of the appeal hearing. The court opined that:

32. … It was well within the proper exercise of the First-tier Tribunal’s wide discretion to grant or refuse adjournments to refuse the application in this case. There was no error of law in that decision.

(iii) Refusal to admit fresh evidence

McCombe LJ proceeded to explain that the Upper Tribunal also enjoyed a wide discretion on this issue. The present case was not the type of case where the fresh material inevitably resolved the factual issue in Mr Kabir’s favour.

The new evidence presented similar factual questions to the initial evidence and it was neither a case of clear misapprehension of established and relevant fact nor was it in keeping with ML (Nigeria) [2013] EWCA Civ 844 where it was held a material error of fact, material to a tribunal’s conclusion, will also constitute an error of law (ML involved a series of “egregious errors”). McCombe LJ therefore held that the Upper Tribunal had been entitled to refuse the application in view of the failure to follow the correct procedure and to take into account the Ladd v Marshall principle that this new evidence could, with reasonable diligence, have been made available to the First-tier Tribunal on the initial appeal. He said:

33. … I discern no error of law, therefore, on the Upper Tribunal’s part in the decision that the judge made in declining to admit the fresh evidence.

(iv) Deception

The court also noted that the Home Office did not dispute that neither tier of the tribunal had endorsed the decision-maker’s assertion that Mr Kabir had behaved deceptively when making his application for leave to remain.

It was open to him on any future entry clearance application to contest any reliance upon alleged deception in answer to a refusal of leave to enter, and it would be incumbent upon the decision-maker fairly to assess afresh the evidence presented on the issue.

Comment

The result in this case is a reminder that a failure to follow the correct procedure is fatal for applicants wishing to adduce further evidence in the Upper Tribunal. Equally, the fact that Mr Kabir’s solicitors sought a second adjournment on the day of hearing did not help him either. Mr Kabir was lengthily left in limbo for a period of 6.5 years (2013-2019) while his case was ongoing and the fact that the Home Office dithered on his application for two years prior to taking any action in his case is a testament to its inefficiency and continuing failures in upholding service standards for charged immigration applications such as those in the former Tier 1 (Entrepreneur) category. But of course the failure to properly follow the procedural rules ultimately appears to have been Mr Kabir’s undoing in this appeal and those hoping to avert a similar fate should take on board the decision of the Court of Appeal in Mr Kabir’s case, which is very strict in its nature. We can only hope that the same degree of strictness will be applied to the Home Office if it is the appellant in the Upper Tribunal seeking to adduce new evidence.

Notably, Statement of Changes HC 1919 overhauled the points based system and the Tier 1 (Entrepreneur) and Tier 1 (Graduate Entrepreneur) categories have been replaced by the new Innovator and Start-up categories. But with the UK economy in jitters because of the prospects of a no-deal Brexit, as shown by the Office of Budget Responsibility’s forecast that the UK economy would contract by two per cent in the event of a no-deal Brexit, it is very difficult to see why someone would wish to come to the UK and take risks with their money in very testing economic times. With high levels of political volatility and economic unpredictability, and given that the Home Office loves to short-change migrants their full immigration rights even after they have satisfied the relevant requirements, it is hard to see how someone such as Mr Kabir would wish to waste further energy, time and money by applying for entry clearance to go round the whirligig one more time.

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