Upper Tribunal (Immigration and asylum chamber), 2010-03-23, [2010] UKUT 117 (IAC) (MS (AS & NV considered))
| Jurisdiction | UK Non-devolved |
| Judge | Mr D K Allen |
| Status | Reported |
| Date | 23 March 2010 |
| Published date | 23 April 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 07 December 2009 |
| Subject Matter | AS & NV considered |
| Appeal Number | [2010] UKUT 117 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
MS (AS & NV considered) Pakistan [2010] UKUT 117 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House (AIT Procession House) |
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On 2 November and 7 December 2009 |
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Before
SENIOR IMMIGRATION JUDGE ALLEN
Between
mS
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Z Malik, Counsel instructed by Malik Law Chambers Solicitors
For the Respondent: Mr M Blundell, Home Office Senior Presenting Officer
(i) The effect of AS and NV [2009] EWCA Civ 1076 is to make the Tribunal the primary decision maker in an increased number of cases where a new ground is raised for the first time, but it does not have the effect of requiring the Tribunal to consider as a section 120 statement a re-formulation of the original ground on which leave to remain was sought.
DETERMINATION AND REASONS
1. The appellant is a national of Pakistan. He appealed to an Immigration Judge against the decision of the Secretary of State on 27 April 2009 refusing to vary leave to remain in the United Kingdom. The appellant’s wife, Ghulam Fatima and their sons Muhammad Awais and Muhammad Hamza are dependent on his appeal.
2. The appellant had applied for leave to remain as a Tier 1 (Post-Study Work) Migrant. His application was rejected because he had not satisfied the Secretary of State that he met the maintenance requirements of paragraph 245Z(e) and Appendix C of HC 395.
3. It was common ground that the appellant had made his application to remain as a Tier 1 (Post-Study Work) Migrant on 20 March 2009 and that it was treated by the Secretary of State as being made on 23 March. It was also common ground that the appellant had not had the necessary sum of £2,399 for the entirety of the three month period, in that he had not had the minimum required amount in the period 16 December 2008 – 1 January 2009.
4. It was shown at the hearing on 24 June that the appellant had maintained a balance in excess of £2,399 for over five months.
5. It was argued before the Immigration Judge that on a proper reading of Section 85(4) of the Nationality, Immigration and Asylum Act 2002, consideration could be given to the more recent bank statements. It was argued that the substance of the decision was simply the refusal to vary leave to remain, and reliance was placed on what had been said by the Tribunal at paragraph 9 in LS (Gambia) [2005] UKAIT 00085.
6. The Immigration Judge, however, founding himself on a recent decision of the Tribunal in NA and Others [2009] UKAIT 00025, concluded that any reference to “the substance of the decision” had to be a reference to the specific issue or issues which led the Secretary of State to refuse to vary the previous leave to remain. He considered that it was clear, in particular from what was said at paragraph 49 in NA, that the relevant provisions required appellants to show they had the requisite amount of personal savings during the three months immediately before their application and therefore it was not possible to consider the subsequent state of the bank account.
7. The appellant sought reconsideration of this decision, arguing that in the context of the one-stop appeal mechanism in Section 120 of the 2002 Act it was appropriate to interpret the notion of the substance of the immigration decision differently from that concluded by the Immigration Judge and that the more recent state of the bank account could be taken into account. It was also argued that the Secretary of State had not issued directions to remove the appellant from the United Kingdom, and that this operated unfairly to the appellant since he could not challenge the decision in that regard other than by remaining in the United Kingdom unlawfully. The ambit of the decision of the Court of Appeal in TE (Eritrea) [2009] EWCA Civ 174 was raised as an associated issue.
8. A Senior Immigration Judge ordered reconsideration on all grounds.
9. The hearing before me took place on 2 November and 7 December 2009, Mr Z Malik, instructed by Malik Law Chambers Solicitors (Bethnal Green Road), appeared on behalf of the appellant. Mr M Blundell appeared on behalf of the Secretary of State.
10. Mr Malik referred to the recent decision of the Court of Appeal in AS (Afghanistan) and NV (Sri Lanka) [2009] EWCA Civ 1076 and also provided a copy of TE (Eritrea). A copy of Odelola [2009] UKHL 25 was also provided.
11. Mr Malik had referred to the impending decision in AS and NV in his grounds and it was now of course decided. It was argued that AS and NV had clear implications for the earlier decision of the Tribunal in EA [2007] UKIAT 00013. It was said in AS and NV that the substance of the Section 85(4) decision meant the decision on the detailed eligibility of an individual in the context of the rule.
12. The Tribunal was referred to paragraph 78 and onwards in AS and NV. The substance of the decision was the refusal to vary leave to remain. Paragraph 80 was also relevant. If a Section 120 statement had been made then the Tribunal must consider and determine the appeal in relation to that. In AS and NV the appeal had been allowed and the Tribunal had been ordered to consider the matter under the International Graduate Scheme, although no decision had been made by the Secretary of State on that. As an example of how this would operate, if a student applied for further leave to remain as a student and was refused and appealed, making a Section 120 statement in which they now said they qualified for leave to remain as a post-study migrant, on the basis of the reasoning in AS and NV the Tribunal must consider this and if the matter were made out the appeal should be allowed. To obtain leave to remain it was necessary to show £800 over three months prior to the date of application. If there were no application then in accordance with what was said in AS and NV the Tribunal had to consider the post-study migrant matter and determine it. It was necessary to treat the Section 120 statement as a fresh application. Its date would be considered as the date of application for the purpose of the post-study migrant rules. In this case the facts were not in dispute. The appellant had applied on 23 March 2009. It was accepted that the balance between 23 December 2008 and 1 January 2009 was less than the required amount so on the basis as decided by the Tribunal in NA the appeal could not succeed. At the hearing the appellant had made a Section 120 statement in the form of a witness statement in which he had explained why he should not be removed from the United Kingdom and should be granted leave to remain. The balance had fallen below the requisite figure for fewer than seven days but he had been maintaining the balance since 1 January and if he applied now would succeed. The Tribunal was under an obligation to treat the Section 120 statement as a fresh application. If so the appellant would succeed, as the balance had always been over the requisite amount since 1 January.
13. Also, in support of that, if the appellant were refused he would have to make another application to the Secretary of State enclosing recent bank statements, and clearly the legislative framework discouraged this. Reference was made to paragraph 102 in AS and NV and also paragraph 3. There was a preference for one-stop appeals and a view that the process should not encourage successive applications and this favoured the interpretation argued for in respect of Section 85(4) and Section 120.
14. Ground 2 was concerned with the proper interpretation of the decision of the Court of Appeal in TE. No removal directions had been issued so the Tribunal’s jurisdiction was limited to the Immigration Rules and Article 8 and it did not encompass any argument as to whether discretion had been exercised outside the Immigration Rules. If that had been done then it would invoke paragraph 395C and the Tribunal could have concluded that even if the appellant did not succeed under the Immigration Rules he should not be removed, bearing in mind the paragraph 395C factors. In the absence of removal directions that could not be considered however. It was argued that this was unfair to the appellant and unlawful. The matter had been considered at paragraph 15 in TE, quoting from what had been said by Laws LJ in JM [2006] EWCA Civ 1402 at paragraphs 16 to 18 and 22 and 23. If the appellant’s current appeal was unsuccessful then the Secretary of State would have to issue removal directions and when he did so the appellant would have another right of appeal and could then argue in respect of paragraph 395C before the Tribunal. The price he would pay for this would be that of committing a criminal offence by overstaying, as would his employers if they continued to employ him and this, as had been said by Laws LJ, was wrong in principle. Mr Malik also referred to paragraphs 19 and 20 of TE and the Section 47 issue. There had been no reason given for segregating removal directions from the substantive decision and this was unfair and was not in accordance with the law.
15. Mr Blundell was in some difficulties, not having seen a...
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