LS (Post-Decision evidence – Direction – Appealability) Gambia
| Jurisdiction | England & Wales |
| Judgment Date | 19 April 2005 |
| Date | 19 April 2005 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Mr C M G Ockelton (Deputy President), Mr L V Waumsley (Senior Immigration Judge) and Professor A Grubb (Senior Immigration Judge)
Representation:
Ms K Mustapha of K M Immigration Services, for the Claimant;
Mr P Deller, Home Office Presenting Officer, for the Respondent.
Cases referred to in the judgment:
DR (ECOPost-decision Evidence) Morocco* [2005] UKIAT 00038; [2005] Imm AR 205; [2005] INLR 117
Legislation judicially considered:
Nationality, Immigration and Asylum Act 2002, ss 82(2), 85(4), 85(5), 87(1), 87(4) and 101(1)
Post-decision evidence ss 82 and 85 of the Nationality, Immigration and Asylum Act 2002 circumstances appertaining at the date of decision students right of appeal Adjudicator's directions
The Claimant, a citizen of Gambia, achieved marks graded as poor failure on the course for which he had originally been admitted to the United Kingdom. His leave expired on 31 March 2003 and on 2 April 2003 he made an application to the Secretary of State for the Home Department for leave to remain in order to pursue a further full-time course lasting one year. At the time of this application, therefore, he had no valid leave to remain. Over a year later, the application was refused as a result of his poor marks: the Secretary of State did not consider that the Claimant had the ability to pursue his proposed course of study. The Secretary of State did not explicitly cite Rule 60(v) of the Immigration Rules HC 395 (as amended), which required applicants to show evidence of satisfactory progress in their courses, as a reason for the refusal.
The Claimant's appeal to an Adjudicator was not heard until September 2004. By this time the Claimant had undertaken the course for which he had sought leave to remain, had passed all his examinations and had been accepted for study on a further degree course. The Adjudicator accepted the Claimant's explanation that his poor marks were a result of distress caused by his father's illness and death. The Adjudicator had regard to the terms of s 85 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), which set out the matters that could be considered in specified appeals. He decided that the Claimant's appeal should be allowed if he met the requirements of the Immigration Rules at the date of the Adjudicator's consideration of the matter. He concluded that the Claimant had met those requirements since he had passed his exams on the later course, whatever might be said about his ability on the previous course. The Adjudicator allowed the Claimant's appeal and directed that he be granted leave to remain as a student. The Secretary of State appealed, contending, inter alia, that the Adjudicator had erred in law as he should only have considered the circumstances that existed at the date of the Secretary of State's decision.
Held, allowing the appeal:
(1) s 85 drew a clear line between refusals of entry clearance and certificates of entitlement and all other cases: only in the former two types of case was there a prohibition on the consideration of evidence of circumstances appertaining after the date of decision; in all other cases Adjudicators were under no such restriction and it followed that if a claimant asserted that a decision was not in accordance with the Immigration Rules, then he or she was entitled to present evidence as to the position as at the date of the hearing, even where it was clear that the requirements of the Immigration Rules were not met at the date of the decision itself (para 9);
(2) it was because s 85 gave Adjudicators the power, in relation to in-country appeals, to look at all relevant circumstances at the date of their decisions that the appellate process was able to settle claimants' rights meaningfully in a single process, without running the risk of claimants having undetermined rights (para 10);
(3) it was clear from ss 87 and 101 of the 2002 Act that parties could appeal specifically against the terms of an Adjudicator's direction: however, in a case where the Secretary of State had chosen not to do so, and where the Adjudicator was shown not to have erred in allowing the appeal, the direction had to stand in the terms in which the Adjudicator made it (para 15);
(4) a refusal of leave to remain in respect of a person who did not have leave at the time that decision was made was not a decision that could be appealed under s 82(2) of the 2002 Act; in this case, as the Claimant's leave had expired on 31 March 2003 and his application was made on 2 April 2003, he had no right of appeal from the refusal of the application; as a result, neither the Adjudicator nor the Tribunal had jurisdiction to hear the case, and the Adjudicator's determination and direction could have no effect (paras 16 and 17);
(5) the parties should proceed as though the Secretary of State's appeal had been allowed in full and the Tribunal had substituted a determination dismissing the Claimant's appeal to the Adjudicator (para 17).
Determination and Reasons
C M G Ockelton, Deputy President
[1] The Appellant, a citizen of Gambia, applied to the Respondent for leave to remain in the United Kingdom as...
To continue reading
Request your trial
-
VT (Dublin Regulations: Post-Removal Appeal) Sri Lanka
...9152/09 KRS v United Kingdom 2008 ECHR 32733/08 (dec) LS (post-decision evidence—direction—appealability) Gambia [2005] UKAIT 00085; [2005] Imm AR 310; [2006] INLR 61 MSS v Belgium and Greece 2011 ECHR 30696/09; (2011) 53 EHRR 2; [2011] INLR 533 NS v Secretary of State for the Home Departme......
-
SGC and Others (EEA – Date of decision – 1999 act) Ireland
...Case C200/02, ECJ; [2004] Imm AR 754; [2005] INLR 1 LS (Post-decision evidencedirectionsappealability) Gambia [2005] UKIAT 00085; [2005] Imm AR 310; [2006] INLR 61 Marks & Spencer v Customs and Excise Commissioners Case C62/00, ECJ; R v Immigration Appeal Tribunal ex parte KotechaWLR [1983]......
-
SA (Ambit of s 85(5) of 2002 act) Pakistan
...[2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247 LS (Post-Decision evidenceDirectionAppealability) Gambia [2005] UKAIT 00085; [2005] Imm AR 310; [2006] INLR 61 R (on the application of Mahmood) v Secretary of State for the Home Department [2000] EWCA Civ 315; [2001] Imm AR 229; [2001......
-
YZ and LX (Effect of section 85(4) – 2002 act) China
...Officer, for the Secretary of State Cases referred to: LS (Post-decision evidencedirectionsappealability) Gambia [2005] UKIAT 00085; [2005] Imm AR 310; [2006] INLR 61 Legislation judicially considered Immigration Rules HC 395 (as amended), Rules 317(i)(c) and 317(i)(e) The Nationality, Immi......