Mahbub Alam (1) Fahad Anwar (2) and Another v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Sullivan,Lord Justice Moore-Bick,Lord Justice Maurice Kay
Judgment Date13 July 2012
Neutral Citation[2012] EWCA Civ 960
Date13 July 2012
Docket NumberCase No: C5/2011/2944, C5/2012/0391, C5/2012/0052

[2012] EWCA Civ 960

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

IA/14881/2011, IA/16337/2011 and IA/11952/2011

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay

Vice President of the Court of Appeal

Lord Justice Moore-Bick

and

Lord Justice Sullivan

Case No: C5/2011/2944, C5/2012/0391, C5/2012/0052

Between:
Mahbub Alam (1)
Appellants
Fahad Anwar (2)
Berenice Eghan (3)
and
Secretary of State for the Home Department
Respondent

Zane Malik and Shahadoth Karim (instructed by Kalam Solicitors) for Appellant (1)

Harshaka Kannangara (instructed by AA Immigration Lawyers) for Appellant (2)

Shaima Ammal for Appellant (3)

Jonathan Swift QC and Mr. Alan Payne (instructed by Treasury Solicitors) for the Respondent

Hearing dates: 29 th & 30 th May 2012

Lord Justice Sullivan

Introduction

1

These three appeals have been listed together because they all raise the same issue. In each case the Appellant applied for leave to remain in the UK as a Tier 4 (General) Student Migrant under the Points-Based System ("PBS") in the Immigration Rules. In each case the application was refused by the Secretary of State because the Appellant had failed to comply with one of the requirements in the PBS to provide specified documentary evidence. Prior to the 23 rd May 2011 the three Appellants appealed against the refusal of their applications. Their appeals were heard by the First-tier Tribunal (Immigration and Asylum Chamber), ("the Tribunal") on various dates after the 23 rd May 2011. At the hearing of their appeals the Appellants produced the missing documentation. Was the Tribunal entitled to consider this new evidence when determining their appeals, or was it prohibited from doing so by section 85A of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") which came into force on 23 rd May 2011 by virtue of The UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 ("the Order")?

The Facts

2

Mr. Alam is a citizen of Bangladesh who entered the UK as a student on 26 th August 2007. His leave as a Tier 4 migrant was due to terminate on 12 th April 2011. On 1 st April 2011 he made an application under Tier 4 of the PBS to enable him to continue with his studies for an ACCA qualification. On 20 th April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation: the bank statements submitted with his application were dated more than one month prior to the application, and could not therefore be taken into account in assessing the points claimed for maintenance (funds).

3

By the time of the hearing before the Tribunal, on 10 th June 2011, Mr. Alam had produced the relevant bank statements. The Tribunal did not permit Mr. Alam to rely on the bank statements and dismissed his appeal under the Immigration Rules. However, the Tribunal allowed Mr. Alam's appeal on the basis that a refusal of his application would be a disproportionate interference with his rights under article 8 of the ECHR in circumstances where he had "clearly established that he meets the requirements of the Rules." On appeal by the Secretary of State the Upper Tribunal (Immigration and Asylum Chamber) held that the Tribunal had erred in determining the article 8 claim on the basis that Mr. Alam had met the requirements of the Immigration Rules when he had not met them, set aside the Tribunal's decision and dismissed both the appeal under the Immigration Rules and the article 8 appeal.

4

Mr. Anwar is a citizen of Pakistan who entered the UK on 26 th February 2010 with leave to enter as a student until 1 st April 2011. On 31 st March 2011 he made an application to extend his leave as a Tier 4 student to enable him to complete an ACCA course. He received a letter dated 5 th April 2011 from the UK Border Agency (UKBA) which said (so far as relevant):

"Thank you for the application by the above-named on Form Tier 4. It will now be passed to a casework unit.

If there is any problem with the validity of the application, either because of the fee paid or another aspect of the application, a caseworker will write to you as soon as possible to advise what action you need to take to make a valid application.

You should expect to receive further correspondence from us giving you instructions for the next steps in making your application……….

We would appreciate it if you did not enquire about the progress of the application before you hear from us. It is not possible to make enquiries in person about the progress of an application at any of our Public Enquiry Offices, Biometric Enrolment Centres or via our Immigration Enquiry Bureau…….."

5

By letter dated 10 th May 2011 the Secretary of State refused the application because a document—"ACCA examination Financial Accounting (F3)—Examination History Detail Document provided"—said to have been used to assess his ability to study and complete the course by the London Business School in its confirmation of acceptance for studies of Mr. Anwar, had not been provided with the application.

6

When Mr. Anwar's appeal was heard by the Tribunal on 23 rd June 2011 he produced document F3 and said that it had been sent with his application form. The Tribunal accepted Mr. Anwar's evidence and allowed his appeal. On appeal by the Secretary of State, the Upper Tribunal set aside the Tribunal's determination on the ground that it was inadequately reasoned, concluded on the balance of probabilities that Mr. Anwar had not sent document F3 with his application, said that the terms of UKBA's letter dated 5 th April 2011 did not impose an obligation on the Secretary of State to notify Mr. Anwar of the omission and invite him to submit the missing document before refusing his application, and dismissed Mr. Anwar's appeal.

7

Miss Eghan is a citizen of Ghana who arrived in the UK on 25 th July 2009 with entry clearance as a student valid until 28 th February 2011. On 20 th January 2011 she made an application for leave to remain as a Tier 4 student to pursue an MBA at City Banking College. Her application was refused by the Secretary of State on 16 th March 2011 because she had failed to provide bank statements showing that she had funds in excess of £1600 for the relevant 28 day period. She appealed against that decision, and received a Notice of Hearing dated 4 th April 2011 from the Tribunal telling her that her appeal would be heard on 4 th May 2011. The Notice contained Directions which required her to send a bundle of all of the documents to be relied on at the hearing no later than 5 days before the hearing date. An amended Notice of Hearing dated 14 th April 2011 told Miss Eghan that her hearing would now be heard on 25 th May 2011.

8

At the hearing on 25 th May Miss Eghan produced the relevant bank statements. The Respondent was not represented, and section 85A was not referred to. The Tribunal allowed her appeal. On appeal by the Secretary of State, the Upper Tribunal set aside the Tribunal's decision on the basis that section 85A had been brought into effect two days before the Tribunal hearing on 25 th May, the Tribunal had not been entitled to consider the bank statements, and had therefore erred in law. The Deputy Judge of the Upper Tribunal said that he was "obliged to dismiss this appeal with regret."

The PBS Scheme

9

Part 6A of the Immigration Rules contains the PBS, which was introduced in November 2008. The PBS is based upon an approach that decisions on entitlement to enter and remain in the UK should be taken by reference to objectively verifiable criteria. Points are allocated to the relevant criteria, eg "Attributes", and "Maintenance (Funds)", and whether the application is granted or refused is determined by the overall points score. The PBS is very detailed and highly prescriptive. An important feature of the PBS is that it specifies the evidence that must be produced with the application in order to demonstrate that the criteria are met.

10

Rule 245A provides, so far as relevant, that where Part 6A or Appendices A (which deals with Attributes) or C (which deals with Maintenance (Funds)) of the Rules "state that specified documents must be provided, that means documents specified by the Secretary of State in…..the Points Based System Policy Guidance."

By way of example, paragraph 118 of Appendix A states that:

"118. No points will be awarded for a Confirmation of Acceptance of Studies unless: (a) the applicant supplies, as evidence of previous qualifications, specified documents that the applicant used to obtain the offer of a place on a course from the Sponsor…." (emphasis added)

Paragraph 13 of Appendix C states that:

"13. Funds will be available to the applicant only where the specified documents show….That the funds are held or provided…..". (emphasis added)

11

Paragraph 10 of the "Tier 4 of the Points Based System—Policy Guidance" deals with the "Documents the student will need to send with his/her application", and advises applicants that:

"10. To claim points, a student must send the required documents listed in this guidance when he/she makes his/her application (paragraph 245AA of the Immigration Rules). We will only accept the documents listed in this guidance as evidence (proof)."

Under the heading "Claiming points for a Confirmation of Studies", paragraphs 97 and 98 of the Guidance state:

"97. If the Tier 4 sponsor has assessed the student's qualifications in order to assign the Confirmation of Acceptance for Studies, the student must send us these qualifications with their application. For each qualification...

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