Upper Tribunal (Immigration and asylum chamber), 2012-10-19, [2012] UKUT 368 (IAC) (Ali (s.120 - PBS))
| Jurisdiction | UK Non-devolved |
| Judge | Mr D K Allen, Mr R Chalkley |
| Status | Reported |
| Date | 19 October 2012 |
| Published date | 29 October 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 20 August 2012 |
| Subject Matter | s.120 - PBS |
| Appeal Number | [2012] UKUT 368 (IAC) |
IAC-FH-GJ-V6
Upper Tribunal
(Immigration and Asylum Chamber)
Ali (s.120 – PBS) [2012] UKUT 00368(IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 20 August 2012 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE CHALKLEY
Between
MANSOOR ALI
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Z Malik, instructed by Malik Law Chambers Solicitors (Bethnal Green Road)
For the Respondent: Ms M Tanner, Senior Home Office Presenting Officer
(1) In a PBS case the exception set out in section 85A(3) and (4) of the Nationality, Immigration and Asylum Act 2002 precludes a section 120 statement from being used in order to adduce evidence of compliance with a different requirement of the PBS.
(2) What is said in AQ (Pakistan) [2011] EWCA Civ 833 regarding the material date in respect of evidence adduced does not apply to s.85A cases.
DETERMINATION AND REASONS
1. The appellant is a national of Pakistan. He appealed to a First-tier Tribunal judge against the Secretary of State’s decision of 16 March 2011 refusing to vary leave to remain in the United Kingdom.
2. The appellant had applied on 29 January 2011 for leave to remain in the United Kingdom as a Tier 1 (General) Migrant under the points-based system and for a biometric residence permit. He was not awarded any points for qualifications under Appendix A of the Immigration Rules as the MBA issued by Liverpool John Moores University was not included in the list of MBA eligible programmes as stated in the published guidance, and the evidence provided did not show that he had been awarded the qualification at the date of application. It was considered that the further documents he had submitted from Pakistan did not satisfy the requirements of the published guidance and could not be considered. As regards his claimed earnings, he had provided one payslip each from the two employers to whom he referred. Also the bank statements provided only covered the period of 2 October 2010 to 31 December 2010 and did not cover the period shown in the payslips which were both dated 14 January 2011. This meant that he had only supplied one type of document as evidence of earnings, as the payments could not be corroborated by the relevant bank statements and therefore no points were awarded for earnings. The evidence did not include the date of award of the degree or confirmation that he had completed and had been awarded the qualification claimed. Also as regards the ten points he claimed for English language, the score he had obtained in the ESOL examinations did not satisfy the necessary minimum standard.
3. In his grounds of appeal the appellant had submitted a statement of additional grounds in which he stated that:
“There is no pressing social need to deny the appellant the right to remain in the United Kingdom as he also qualifies for leave to remain in the UK as a Tier 1 (Post Study Work) Migrant.”
It was argued on his behalf that the Tribunal was obliged to consider and determine his additional ground in line with what had been said by the Court of Appeal in AS and NV [2009] EWCA Civ 1076.
4. The judge considered the submissions, but concluded that the application was under the PBS and was fixed in time and the position had to be considered at the date of application. She considered it was for the appellant to make a further application on the basis of the award of the Master’s degree which would enable him to satisfy a different requirement of the Rules. Article 8 was raised in the grounds of appeal but the judge commented that it was not diligently pursued before her. She accepted that the appellant had established private life as a student in the United Kingdom, however she concluded that the decision to remove him was legitimate and there was nothing in his circumstances to show that the decision was disproportionate.
5. The appellant sought and was granted permission to appeal on the basis that the judge had come to conclusions which were inconsistent with the decision of the Court of Appeal in AQ (Pakistan) [2011] EWCA Civ 833 and also with other authorities. It was further argued that the appeal should have been allowed under Article 8. The case was not one of a “near-miss” but of a “no-miss”. Permission to appeal was granted on the appellant’s grounds.
6. Mr Malik adopted and developed the grounds before us. He took us through the relevant statutory provisions and also the relevant authorities including AS and NV, MS [2010] UKUT 117 (IAC), MU [2010] UKUT 442 (IAC), AQ (Pakistan), JM [2006] EWCA Civ 1402 and Alam [2012] EWCA Civ 960. He argued that the case was not one of a specific timeline, as identified in MS, and that the facts in AQ were not materially different from those in MS. In the instant case the degree had been awarded on 11 March 2011, six days before the date of decision on 17 March, and it was clear from the concession as recorded in AQ at paragraph 22 that the relevant date for the assessment of evidence was the date of the Secretary of State’s decision and not the date of the application to her. It was clear from JM that the appellant should not be required to commit a criminal offence as in effect he would have to on the basis of the Secretary of State’s argument. There was also the risk of a multiplicity of actions, a point in respect of which the Court of Appeal had expressed concern in AS and NV.
7. In her submissions Ms Tanner argued, with respect to section 85A(3)(b) and (4) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) that it was clear that the former referred to the points-based system (PBS) and the latter referred to evidence adduced at the time of the application. Clearly despite AS and NV and the other authorities and the seeming concession about date of decision as the key date, that was the position unless it was refuted or altered by legislation. It was clear from these provisions that in a PBS case the exception applied and it was the date of application as had been found by the judge. Section 120 merely underlined to the appellant that it was appropriate to make any representations but it was not an encouragement to make another application for which a fee would have to be paid. It was an opportunity to say why he should not be required to leave the United Kingdom. The judge had not erred as to the date of application being the key date as set out at paragraph 10 of the determination. In any event it was far from certain whether the appellant would have succeeded under a different rule as the refusal letter referred not only to the degree certificates required but also evidence about employment. Even if only one type of evidence were required, the bank statements did not reflect the period shown on the payslip and the refusal in respect of English language. The judge had dealt properly with Article 8. There was no error of law.
8. By way of reply Mr Malik argued firstly that with respect to the points he had made that had not been dealt with by Ms Tanner it could be inferred that there was no answer to what he had submitted. Secondly, he argued that though the Secretary of State’s reasons for decision were defended by the Presenting Officer, and he accepted that these were accurate with regard to the general category, however they were different from the immigration decision and it took the Secretary of State no further. Thirdly, it was argued that in respect of section 85A the point made on behalf of the Secretary of State was irrational. For example, if a student applied for leave to remain while a Tier 4 Student and got married while the application was pending and then made a One-Stop Statement, the Secretary of State was saying that that could be considered but section 85A barred putting forward evidence to back the statement up, yet the evidence of the marriage could not have been submitted with the application. In the instant case the degree had been awarded after the application was made and the Tribunal was required to consider the point left open by Sullivan LJ in Alam at paragraph 42. In any event, Ms Tanner had not addressed his argument about section 85(5) and his case was based on section 85(2). As long as that subsection and section 120 were in the legislation the Tribunal was obliged to determine any ground raised in a section 120 statement. Fourthly, with regard to Article 8 his point had not been addressed about this not being a near-miss case but a no-miss case, and if the requirements of the Rules were met at the date of decision and at the hearing it could not be said that the interference was proportionate.
9. We reserved our determination.
10. It will be convenient to set out the relevant provisions of the 2002 Act.
“82. Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal [to the Tribunal].
(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...
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