This case – read judgment here – establishes that a failure by an ECO (“Visa Officer”) to supply documentary evidence under rule 13 of the Asylum and Immigration Tribunal (Procedural) Rules 2005 may result in directions being issued by the Tribunal which indicate that unless the ECO complies with the rules of procedure, the Tribunal will proceed on the assumption that the appeal is not opposed by the ECO.
The case also makes the point that where the ECO breaches the rules of procedure by failing to provide documentation to the First Tier Tribunal and it issues a “reasoned decision” upon the evidence, a further challenge by the ECO stemming from “sufficiency of reason” will have a minimal likelihood of success in an application for permission to appeal to the Upper Tribunal.
The facts are that Mr Cvetkovs was a stateless person who lived and studied in Riga, Latvia (where he applied for a visa to enter the UK in order to visit his sister). Mr Cvetkovs’ sister and her partner submitted evidence that they would sponsor him and bear all the expenses for his journey and stay. Mr Cvetkovs had visited the UK in the past and he had always opted to leave rather than stay on. Yet, quite oddly, the ECO did not find any merit in this history.
The ECO in Warsaw (sorry to digress but this would be the extraterritorial immigration control point in the last post) refused Mr Cvetkovs’ application as the ECO was not satisfied that Mr Cvetkovs had sufficient ties to Latvia.
Another reason for the refusal was that Mr Cvetkovs had provided documents which were in a foreign language. Subsequent to the refusal, upon appeal, Mr Cvetkovs furnished further evidence of sponsorship for his visit.
In the first instance hearing before the Tribunal, Rowlands IJ’s was confronted with the problem that the ECO had failed to provide the application form and documents which were submitted by Mr Cvetkovs when he applied for his visa. Rowlands IJ allowed Mr Cvetkovs’ appeal because (i) he had left the UK in the past; and (ii) there was evidence of adequate maintenance from his sponsors.
The ECO appealed the IJ’s decision on the grounds that the IJ had not sufficiently explained his view in relation to Mr Cvetkovs’ intentions. Permission was granted and neither party followed the Tribunal’s directions for submitting documentary evidence.
Mr Justice Blake (President of the Upper Tribunal) considered it to be “unfortunate that permission to appeal was granted in this case given the Visa Officer’s clear default in failing to provide the IJ with the relevant documents” (see at ). Moreover he also explained that the ECO was not entitled to complain of the Tribunal’s inadequacies about the material it had had sight of because “the ECO’s default has prevented the IJ from having the documents he was entitled to have before him”. Mr Justice Blake also found that the first instance Tribunal had not erred in law and that Rowlands IJ had correctly discharged his duty as a judge by giving a reasoned decision.
Paragraph 10 of the Upper Tribunal’s determination is worth quoting in full:
“For the future, we consider that Immigration Judges of the First-tier Tribunal, Immigration and Asylum Chamber are entitled to be robust in determining Entry Clearance appeals where the Visa Officer is not satisfied as to the purpose of the visit from the documents produced but fails to provide those documents to the Tribunal. We trust that Visa Officers will give effect to Rule 13 and provide the application documents. The importance of doing so will become even more apparent when s. 85A of the Nationality Immigration and Asylum Act 2002 inserted by s. 19 of the UK Borders Act 2007 comes into force on 23 May 2011. That section has the effect of significantly reducing the opportunity for supply of documents that were not before the decision maker at the material time.”
Mr Justice Blake (at ) also explained that where the ECO failed to provide documents the Tribunal was entitled to make directions for providing documents promptly in the absence of which “the appeal will be decided on the basis that the Visa Officer no longer opposes the appeal or supports any contention that he makes in the decision letter.” (My italics.)
Thereafter, the appeal could be determined on the papers and in the absence of a mandatory ground of refusal and evidence the chances of its success would be quite high (“likely”). Mr Justice Blake clarified that Tribunal judges should “generally refuse” applications for permission to appeal by ECOs on grounds of “insufficient evidence” because:
“It is not in the public interest that a public official in flagrant breach of the obligations upon him or her should be able to dispute the Judge’s assessment on such information as was available … this is certainly the case where there has been no prompt response …
Mr Justice Blake also added that he recognised:
“that different considerations may arise where there are mandatory reasons to refuse, but even then the starting principle should be that it is for the respondent to provide the information that can be independently assessed.”
Accordingly, Mr Justice Blake ordered the ECO to reconsider Mr Cvetkovs’ application in light of Rowlands IJ’s decision.