Tier 1 Entrepreneur appeal – admitting new evidence

Another Tier 1 Entrepreneur case (“Kabir”) hits the Court of Appeal and, like many such cases, it presents a long – very long in this instance – and tangled tale.

Mr Kabir is a Bangladeshi national and he wanted to switch from Tier 4 Student to Tier 1 Entrepreneur. He intended to rely on investment funds provided by a third party which were held in a Bangladeshi bank called “Brac Bank Ltd”.

The application was submitted in December 2012 but, remarkably, it appears that the Home Office did not investigate the case until about two years later. In February 2015 they wrote to the bank about a letter and the bank statement purportedly from the bank which Mr Kabir had submitted with his application and asked if they were genuine.

The reply from the bank must have been shocking:

“…attached Certificates and statements Not issued by our Branches”.

 The capital “N” seems to provide emphasis. Anyway, after recovering from the shock the Home Office refused Mr Kabir’s application (but not until June 2015), with the words:

“In your application, you have submitted a letter and a bank statement from Brac Bank Limited. We are satisfied that these documents are false because we sought verification of these documents from Brac Bank Limited. Brac Bank Limited confirm that those documents are not genuine… … we are also satisfied that you have used deception in this application”.

 In those balmy days back in 2015 there was the right of appeal to the First-Tier Immigration Tribunal for Tier 1 Entrepreneur visa refusals, and Mr Kabir appealed. And in the appeal papers he included a new letter dated 11 May 2016 from the branch manager of the relevant branch of the bank (let us call it “Branch 1”) which stated that the bank statement and previous letter had been genuine and that the previous information given that they were fake was incorrect.

The appeal hearing came up in June 2016 but the Tribunal adjourned the case so that the Home Office could conduct enquiries about this new letter. But the Home Office ultimately concluded that this letter was also “non-genuine”. (“Non-genuine” is a special word that the UK visa authorities use, and it means “fake”.)

This conclusion was reached on the basis of a meeting they had held with a branch manager of the bank – but of a different branch. Let us call it “Branch 2”. This branch manager of Branch 2 had said that the letter of 11 May 2016 just did not look right to him, and that he had phoned the branch manager of Branch 1, who had said that letter of 11 May 2016 must be fake because he did not recognise the name of the purported writer of the letter.

At this point things were not looking very good for Mr Kabir, and they then got slightly worse, because an email sent from the UK visa authorities to his solicitors (but not until September 2016) about these crucial matters apparently did not get passed on to the right person.

And then the next month, October 2016, the adjourned appeal hearing came up again, and Mr Kabir’s lawyer told the Tribunal with admirable honesty that he had not seen this email until that very day and he asked the judge for another adjournment so that new evidence could be obtained about it.

But the judge refused this request and the appeal proceeded. And – not surprisingly on the basis of the evidence – the judge held that the Home Office’s decision was fair, and so Mr Kabir lost the appeal.

But this was not the end of the story. Mr Kabir appealed to the Upper Immigration Tribunal on the basis that it was wrong of the First-Tier Tribunal to have refused the request for an adjournment. And he had in the meantime managed to obtain yet more evidence from the manager of Branch 1 indicating that the evidence was all genuine, and denying that Branch 1 had ever received any phone call from the manager of Branch 2.

We hope you are following so far.

In any event, the Upper Tribunal was not impressed; they said that it was reasonable for the First-Tier Tribunal judge to have refused the adjournment request, and also that Mr Kabir had not used the correct procedure to submit the new evidence, and they refused to consider it.

Then Mr Kabir appealed to the Court of Appeal and they accepted the application.

The question before the court was: was it right of the Upper Tribunal to have refused to consider the new evidence?

Caselaw and rules operate in such a way that in some situations – eg appealing to the Upper Tribunal against a decision of the First-Tier Tribunal – there are strict limitations on the production of new evidence.

And after some very deep deliberations the Court of Appeal decided (in a decision of July 2019) that it was legally acceptable for the Upper Tribunal to have refused to consider the new evidence, and so Mr Kabir was again unsuccessful.

This is a dysfunctional tale that revealed problems with both the Home Office and the appellant’s lawyers. There is not much we can do about the Home Office, but if you find yourself tied up one of these complicated cases you are well advised to instruct efficient and competent lawyers.