EA (Section 85 (4))

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
JudgeC M G OCKELTON,DEPUTY PRESIDENT
Judgment Date30 January 2007
Neutral Citation[2007] UKAIT 13
Date30 January 2007

[2007] UKAIT 13

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Warr

Senior Immigration Judge Batiste

Between
EA
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation

For the Appellant: Ms M Yagnik, instructed by Remar & Co. Solicitors

For the Respondent: Mr C Avery, Home Office Presenting Officer

EA (Section 85 (4) explained) Nigeria

The effect of s85(4) of the 2002 Act (as expounded in LS (Gambia) [2005] UKAIT 00085) is not to make the Tribunal a primary decision-maker. The focus must always be on the decision actually made in response to the appellant's application. An in-country appellant does not succeed by showing that he meets the requirements of the Immigration Rules at the date of the hearing. He can succeed only by showing that the application that he made would be successful at the date of the hearing.

DETERMINATION AND REASONS
1

This is the reconsideration of the appeal of the appellant, a citizen of Nigeria, against the decision of the respondent on 7 February 2006 refusing to vary his leave in order to enable him to remain in the United Kingdom as a student.

2

He had leave to enter for twelve months on the usual terms applicable to a student. He was subsequently granted leave to remain on 30 November 2005 in order to study for a degree course in accountancy and finance at London Metropolitan University. He did not in fact continue his studies at London Metropolitan University. He began a course at an institution called Anfell College. On 23 November 2005 he applied for leave to remain in order to continue his studies for a Bachelor of Science degree in computer science at Anfell College. Anfell College closed in December 2005. On 7 February 2006 the appellant's application was refused, the ground of refusal being that Anfell College was not, on that date, on the Department of Education and Skills' Register of Education and Training Providers. Further, as the college had closed, the Secretary of State was not satisfied that the appellant was enrolled on a course of study meeting the requirements of the Immigration Rules. The appellant thereupon (although having no permission from the respondent to do so) began a course at Holborn College, an institution that he had attended previously. He began studies for a three year accountancy degree. There is no doubt that Holborn College is on the Register.

3

Before the Immigration Judge it was submitted on the appellant's behalf that, because he met the requirements of the Immigration Rules on the date of the hearing, he was entitled to the benefit of s85(4) of the 2002 Act as interpreted in LS (Gambia) [2005] UKAIT 00085, and that his appeal should be allowed although he did not meet the requirements of the Rules at the date of the decision. The Immigration Judge wrote in her determination as follows:

“I accept the respondent's submissions that, as Anfell College was not registered with the Department for Education and Skills [the] application was bound to fail as the appellant was unable to meet all the criteria of paragraph 57 of HC 395. The decision of the Secretary of State was thus correct. I do not accept counsel's argument that the appellant's subsequent enrolment at London Metropolitan University [sic: no doubt Holborn college is intended] retrospectively fulfilled the requirements of Rule 57. At the time of decision the Secretary of State was correct.”

4

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27 cases
  • As (Afghanistan) v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 October 2009
    ...is not the primary decision-maker in immigration cases. It hears appeals against decisions taken (see, EA (s 85(4) explained) Nigeria [2007] UKAIT 00013 at [7] clarifying the relevance in appeals of post-decision facts and the application of s 85(4) of the 2002 Act). Consequently, the focus......
  • Patel and Others v Secretary of State for the Home Department [Sup Ct]
    • United Kingdom
    • Supreme Court
    • 20 November 2013
    ...correct" the approach of the Asylum and Immigration Tribunal ( EA (Nigeria) v Secretary of State for the Home Department [2007] UKAIT 00013), which had read these words as meaning that the new evidence had to be "relevant to the decision actually made", and had added at para ......
  • Raju and Others
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 15 January 2013
    ...for a period of time wholly or partly subsequent to the date of application was not enough. 16. In EA (section 85(4) explained) Nigeria [2007] UKAIT 00013, the Tribunal had held that it was necessary to demonstrate compliance with the requirements of the Immigration Rules at the date of the......
  • AQ (Pakistan) v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 July 2011
    ...for a period of time wholly or partly subsequent to the date of application was not enough. 16 In EA (section 85(4) explained) Nigeria 2007 UKAIT00013, the Tribunal had held that it was necessary to demonstrate compliance with the requirements of the Immigration Rules at the date of the app......
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