Ls (Post-Decision Evidence; Direction; Appealability)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 19 April 2005 |
| Neutral Citation | [2005] UKAIT 85 |
| Court | Asylum and Immigration Tribunal |
| Date | 19 April 2005 |
[2005] UKAIT 85
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton (Deputy President)
Mr L V Waumsley (Senior Immigration Judge)
Professor A Grubb (Senior Immigration Judge)
For the Appellant: Ms K Mustapha of K M Immigration Services
For the Respondent: Mr P Deller, Home Office Presenting Officer
LS (post-decision evidence; direction; appealability) Gambia
1. Save in the case of appeals against decisions of the types listed in s 84(5) (and perhaps where the appeal incorporates a review of the exercise of a discretion) an Adjudicator or the Tribunal is concerned with facts both at and after the date of the decision. 2. The terms of a direction lawfully made by an Adjudicator must be separately appealed if they are to be challenged separately from a challenge to the determination.
The Appellant, a citizen of Gambia, applied to the Respondent for leave to remain in the United Kingdom as a student. The Respondent refused. The Appellant appealed to an Adjudicator, Mr J K H Rintoul, who allowed the appeal and directed that the Appellant be granted leave to remain as a student. The Respondent applied, and was granted, permission to appeal against that determination to the Immigration Appeal Tribunal. Following the commencement of the appeal provisions of the 2004 Act, the grant of permission takes effect as an Order for reconsideration of the Appellant's appeal, limited to the grounds upon which permission to appeal was granted.
The Appellant's application was made on 2 April 2003, at which time the Appellant had been in the United Kingdom for about eighteen months. The Appellant sought permission to remain in the United Kingdom for a one year full-time course ending on 30 June 2004. The Respondent took a considerable time to consider the Appellant's application, but eventually refused it on 8 March 2004. The reason for the refusal was that the Appellant had achieved only marks graded as “ poor failure” in all four papers taken at the end of the course for which he had been originally admitted to the United Kingdom, and therefore the Respondent considered that he did not have the ability to follow his proposed course of study. (Despite the Appellant's record of failure, the Respondent did not cite paragraph 60(v) as a reason for the refusal.)
The Appellant appealed. The appeal was heard by the Adjudicator on 20 September 2004. By that time, the Appellant had undertaken the course for which he had sought leave to remain. He had made good progress, had passed all his exams and had been accepted for study on a further (degree) course, from which he was exempted from the first year as a recognition of the diploma he had obtained from the course he had now passed. The Adjudicator heard and accepted the Appellant's explanation that his failure in the earlier course had been attributable to distress at his father's illness and death. The Adjudicator considered the terms of section 85 of the 2002 Act (which we set out below) and specifically took into account not merely the requirements of paragraph 57 of the Immigration Rules but also that of paragraph 60(v) to which we made reference above. He concluded that the Appellant was entitled to succeed if, at the date of the Adjudicator's consideration of the matter, he met the requirements of the Immigration Rules. The Adjudicator concluded that at that date he did meet those requirements. It is a material part of his decision that (whatever might be said about the ability that the Appellant had always had, as demonstrated by his recent results) he was only able to meet all the requirements of the Immigration Rules, including paragraph 60(v) because he had now passed his exams. The Adjudicator allowed the Appellant's appeal under the Immigration Rules and directed that he be granted leave to remain as a student, for a period not specified by the Adjudicator.
The Secretary of State's grounds of appeal, on the basis of which permission was granted, are as follows:
“It is submitted that the Adjudicator's assessment of his jurisdiction to consider post-decision evidence in paragraph 15 of the determination is flawed because:
1. S85 of the Nationality, Immigration and Asylum Act 2002 (“The Act”) needs to be read in conjunction with s84 of The Act, which sets out the limited grounds upon which one can challenge a decision of the Secretary of State. In particular, in this case the only legitimate challenge was under s84(1)(a) that the decision of the Secretary of State on 10/05/2003 to refuse to vary leave was not in accordance with the law.
It is not in dispute that the Respondent had failed all of his exams taken in December 2002 at the Chartered Institute of Marketing.
2. It is submitted that S85(4) of The Act whilst it gives the possibility for evidence to be considered which concern a matter arising after the date of decision; this is qualified on the basis that such evidence can only be considered when it is relevant to the substance of the decision. It is submitted that the substance of this case is whether the Secretary of State in May 203 was correct under the terms of the Immigration Rules to refuse to vary leave.
It is submitted that the fact the Respondent had subsequently studied further different courses with some degree of success was not relevant to the substantive decision under appeal.”
Three separate points arose during the hearing. We heard Mr Deller on all of them, but needed to call on Ms Mustapha only in respect of the last.
The first is the point squarely raised by the grounds. In determining an appeal against an immigration decision, is the Adjudicator limited to circumstances pertaining at the date of the decision, or should he also take into account circumstances or facts coming into existence after the date of the decision? As Mr Deller pointed out, the drafting of the 2002 Act might be regarded as not entirely clear on that point. We will set out the relevant provisions.
“82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part “immigration decision” means–
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
…
84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds–
(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c.74) (discrimination by public authorities);
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and...
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