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The Appellant is a citizen of India whose date of birth is recorded as 10 th March 1989. On or about 23 rd May 2014 he made application as a Tier 1 (Entrepreneur) Migrant under the points-based system. On 16 th June 2014 the application was refused and a decision was made to remove him by way of directions pursuant to Section 47 of the Immigration, Asylum and Nationality Act 2006. In refusing the application the Secretary of State relied on paragraph 322(1A) and (2) of the Immigration Rules, it being suggested that the Appellant had submitted a documentary evidence that was not genuine.
Although this is the Appellant's appeal I heard from Mr Wilding first. He sought to persuade me that although at paragraph 14 of her Statement of Reasons the judge had expressed the burden of proof as being on the Appellant, still there was no material error because the offending document had been demonstrated not to be genuine by reason of an email from the Punjab National Bank, which the judge had considered and made reference to at paragraph 52 of the Statement of Reasons.
The judge agreed that the email of 11 th June 2014 did not answer all the questions that had been raised by the Respondent nor did it give details of the identity of the sender of that email but she said this:
�I find that it did raise sufficient doubt (my emphasis) over the genuine nature of the documents supplied by the Appellant. I further find that the Appellant did nothing to show the Respondent that their findings were incorrect.�
In my judgement this Statement of Reasons simply cannot stand. The burden of proof was plainly upon the Secretary of State and it was for the Secretary of State not simply to raise a prima facie case but to prove it on balance of probabilities. Of course there was an evidential burden on the Appellant. He was required to produce or adduce sufficient evidence, if he could, to meet the case of the Secretary of State but it is for the judge to be satisfied on balance of probabilities that the Secretary of State�s case is made out.
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