Shahzad (s 85A: commencement)
| Jurisdiction | UK Non-devolved |
| Judge | Mr C.M.G. Ockelton,Southern |
| Judgment Date | 04 October 2011 |
| Neutral Citation | [2012] UKUT 81 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 04 October 2011 |
[2012] UKUT 81 (IAC)
THE IMMIGRATION ACTS
Mr C.M.G. Ockelton, Vice President
Upper Tribunal Judge Southern
For the Appellant: Mr Zane Malik instructed by Malik Law Chambers (for Shahzad, Patel and Patel) and Mr Zane Malik and Mr Sheryar Khan instructed by Farani Taylor LLP (for Khan)
For the Respondent: Mr Peter Deller, Home Office Presenting Officer
Shahzad (s 85A: commencement)
On its true construction, Article 2 of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 amends s85 of the Nationality, Immigration and Asylum Act 2002 and introduces s85A in the 2002 Act only in relation to applications made to the Secretary of State on or after 23 May 2011.
These appeals have been listed together, with the agreement of the parties, because they all raise the same issue. Each of these appellants seeks in the appeal to rely upon additional documentary evidence in support of their application under the Points Based scheme. In each case the respondent says that this additional evidence, not submitted with the application, cannot be considered because it is excluded by ss 85–85A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) as amended by s 19 of the UK Borders Act 2007 (“the 2007 Act”) now that a Commencement Order has given effect to the amendment to s 85 found in s 19 of the 2007 Act.
The appellants challenge the decisions of the First-tier judges on a number of grounds. They argue that, because their applications were submitted before the Commencement Order was laid before Parliament, they could not have known that they would have been prevented from relying upon post- application evidence. It is said on behalf of the appellants that, given that the purpose of the transitional provisions contained within the Commencement Order must have been to mitigate the unfairness in applying the new provisions to such an applicant whose appeal had got under way before implementation of the amendment to s85, and because those transitional provisions, on a literal reading, fail to achieve that, the new arrangements disclose such unfairness as to be unlawful.
Thus the challenge raised is not to the vires of s85A itself, but to the scope of the transitional provisions which, on their face, do not achieve what, it is said, must have been intended.
Before identifying the legal framework in detail and examining the competing submissions, it is helpful to set out the salient facts relating to each of these appellants.
Muhammad Shahzad, the first appellant, first arrived in the United Kingdom in March 2004 with leave to enter as a student. This leave was progressively extended, initially as a student and then as a Tier 1 (Post Study-Work) Migrant until 18 March 2011. On 4 March 2011 he submitted an application for further leave to remain as a Tier 1 (General) Migrant. The application was refused on 20 April 2011 because the respondent was not satisfied that the appellant had established the income he claimed to have from self employment. His appeal against that decision was lodged on 11 May 2011. Following a hearing on 13 June 2011, the immigration judge dismissed the appeal because he agreed with the respondent that the documentation submitted with the application in support was not sufficient and because he declined to take account of additional evidence offered to him because he found that he was precluded from doing so by s85A of the 2002 Act, in its amended form.
Three grounds were advanced in challenge to that determination:
a. The immigration judge erred in excluding the new material because, notwithstanding the terms of s85A of the 2002 Act, this was a question of adjudicative jurisdiction rather than constitutive jurisdiction;
b. The Tribunal was required to have regard to all the evidence in determining the appeal in order to give effect to the one stop procedure provided by s120 of the 2002 Act;
c. The immigration judge erred in giving no reasons for dismissing the appeal on human rights grounds and so failed to engage with the claim brought under article 8 of the ECHR.
Kunal Patel, the second appellant, arrived in the United Kingdom in September 2005 with entry clearance as a student. That leave was progressively extended and, in February 2009, he also was granted further leave to remain as a Tier 1 (Post-Study Work) Migrant until 26 February 2011. On 19 February 2011 Mr Patel submitted an application for further leave to remain as a Tier 1 (General) Migrant. There was a concurrent application on behalf of his wife, who had joined him in the United Kingdom as his dependant in May 2008. The outcome of her application, and her appeal, are dependant upon that of her husband.
The respondent refused the application on 29 March 2011. That was because the appellant had not provided with his application the specified documents required to establish his earnings during the relevant period. His appeal was lodged on 11 April 2011. The immigration judge dismissed the appeal following a hearing on 26 May 2011 because, although the appellant now offered the complete set of bank statements to support the evidence of the wage slips sent with the application to establish earnings, he found that that was not the position on the basis of the evidence the appellant had chosen to submit with his application. The judge dismissed the appeal on human rights grounds also, finding that the interference with the appellant's private life that would arise from the refusal to grant further leave did not amount to a disproportionate interference such as to infringe Article 8 of the ECHR.
Permission to appeal was sought on grounds that are identical to those submitted for the first appellant.
Malik Khan, the third appellant, first came to the United Kingdom in November 2007 with entry clearance until 31 March 2011 as student. On 29 March 2011 he submitted an application for further leave to remain as a Tier 4 (General) Student Migrant. That was refused on 5 May because he had failed to submit with his application some specified documents that were required by Appendix A to the Immigration Rules, namely the certificates from the colleges at which he had studied to support what was stated in the Confirmation of Acceptance for Studies (“CAS”). He lodged his appeal on 17 May 2011.
Following a hearing on 20 June 2011 the immigration judge dismissed the third appellant's appeal. That was because the appellant's evidence was that the CAS letter stating that he had been assessed on the basis of a certificate of Degree Foundation from the School of Technology and Management and a Certificate of Education from Westminster College (which is in Islamabad) was “printed in error”. He sought to rely upon an amended CAS letter referring only to the qualifications he did in fact have which, of course, was not sent with his application. But the immigration judge was unable to accept that the first letter had been printed in error and held that, in any event, the amended CAS letter could not be relied upon because it had not been submitted with the application.
The grounds for seeking permission to appeal were that:
a. The immigration judge was wrong to refuse to have regard to the amended CAS letter. That was because the appeal was “lodged” and therefore “instituted” before 23 May and so the transitional provisions applied.
b. The judge erred in not allowing the appeal on human rights grounds, on the basis that there would be a disproportionate infringement of article 8 of the ECHR.
In each case permission to appeal to the Upper Tribunal has been given on the basis that it was arguable that the First-tier Tribunal judges may have applied s85A incorrectly. It was said that the challenge to the rejection of a claim under article 8 of the ECHR, where raised, was not arguable but permission was not specifically refused on that ground.
Before the Upper Tribunal Mr Zane Malik, appearing for each of the appellants, advances and expands upon those grounds as “six consolidated issues” to be addressed by the Upper Tribunal. We reproduce those issues, as set out in his skeleton argument:
Issue A: Whether s85A has any application in relation to an appeal which is triggered by an immigration decision made on an application submitted to the Secretary of State at any time prior to 23 May 2011?
Issue B: Whether the question as [to] which evidence “the Tribunal may consider” under s85A(4) is a question of adjudicative jurisdiction, as opposed to constitutive jurisdiction? If yes, what follows?
Issue C: Whether the expression “application” in s85A(4)(a) includes “additional grounds for the application” under s 120 — and/or whether the additional grounds under s120 are “the grounds other than those specified in [s85A(3)(c)]” for the purpose of s85(4)(b)? If yes, what follows?
Issue D: Whether s85A has any application to appeals before the UT?
Issue E: Whether, in presence of a provision like s85A, the common law duty of fairness requires the Secretary of State to contact the applicants when mandatory evidence is missing and give them the opportunity to provide it before making a final decision?
Issue F: How should the question of proportionality under Article 8 be approached in a case where an appellant's appeal under the immigration rules fails solely because of the effect of s85A?
As originally enacted, but modified to reflect the present appellate structure, sub-ss (4) and (5) of s85 of the Nationality, Immigration and Asylum Act 2002 were as follows:
“(4) On an appeal under section 82(1) against a decision the Tribunal may consider...
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