IN A determination promulgated on 13 January 2012, the United Kingdom’s Upper Tribunal (Immigration and Asylum Chamber) held that:
“Fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known, failing which the resulting decision may be set aside on appeal as contrary to law (without contravening the provisions of s. 85A of the Nationality, Asylum and Immigration Act 2002).”
The case is Naved (Student – fairness – notice of points)  UKUT 14(IAC) and it was heard by the Upper Tribunal on December 9, 2011, at Field House. For a copy of the determination, please CLICK HERE.
Naved is a student from Pakistan who was admitted to the UK with a valid entry clearance. He attended his course and wished to obtain further leave to remain in the UK to do another course. He submitted his application before the expiry of his leave and completed the prescribed form for T4 (General) student. His application was valid and duly considered by the Home Office.
The only issue in the case was whether he has an established presence in the UK or not. Under the policy guidance for T4 (General) student, in order to be awarded the 10 points for maintenance, a student who has an established presence in the UK is required to show that he maintained £800.00 (inner London) and £600.00 (out of London) to a maximum of two calendar months as opposed to up to nine months for those who have no established presence in the UK.
Upon further investigation, the UKBA refused Naved’s application for further leave to remain on the basis that he had no established presence in the UK and hence did not maintain the requisite amount of money for maintenance. The UKBA relied on an email that they received from the college attended by Naved confirming that he enrolled at the college but did not finish his course. The UKBA did not contact Naved following their investigation to put to him their finding that he did not complete his course and afford him the opportunity to respond to it.
Naved lodged his appeal with the Tribunal. The Tribunal dismissed his appeal and upheld the decision to refuse his application for further leave to remain. Naved applied for permission to appeal to the Upper Tribunal and his application was granted. The case came before the Upper Tribunal and was heard by Mr Justice Blake (President of the Tribunal) and UT Judge Freeman.
The Upper Tribunal concluded that the Secretary of State had acted unlawfully and unfairly in Naved’s case and that he should have been afforded the opportunity to respond to the allegation that he did not complete his course. Naved had evidence to prove that he had completed his course. He, however, had not submitted the necessary document with his visa application and hence he was prevented from relying on the document at the appeal stage by virtue of the new Section 85A of the Nationality, Immigration & Asylum Act 2002 which prohibits the introduction of evidence at appeal which was not submitted at the application stage.
Nevertheless, the UT concluded that the document could be relied on in relation to other grounds of appeal under section 84 of the 2002 Act to prove that the decision of the Secretary of State was wrong and unlawful. The Secretary of State should have allowed Naved to respond to the allegation. By failing to do that, the Secretary of State had failed to act fairly in contravention of her public law duty.
The Upper Tribunal referred to some of its recent decisions which emphasised that the Secretary of State has a duty in public law to act fairly in certain circumstances, where applicant would be disadvantaged through no fault of theirs.
The UT allowed Naved’s appeal on the basis that the decision of the Secretary of State was otherwise not in accordance with the law and sent the case back to the Secretary of State for further consideration. The UT observed that in light of their findings, Naved met the requirements for extension of leave as a T4 (General) student and that he should be given such leave although it refrained from giving a direction to the Home Office.
This decision is remarkable as very often Immigration Judges refrain from entertaining and determining appeals on public law points, especially following the introduction of Section 85A of the 2002 Act in relation to Points Based System (PBS) appeals. The Secretary of State’s action was conspicuously unfair and common sense dictated that she should have contacted Naved before proceeding to refuse his application on a basis that he was unaware of and could never have been aware of before the decision to refuse his application.
In a nutshell, the important points to take from this case are:
# The Secretary of State has a public law duty to act fairly and failing that her decision would be unlawful regardless of the substantive reasons for refusal and any technical bars e.g. section 85A of the 2002 Act.
Further, applicants and/or their legal representatives must not only rely on one ground of appeal under section 84 of the 2002 Act if there is/are other ground(s) to be put to the Tribunal e.g. public law duty of fairness (otherwise not in accordance with the law) or discretion or paragraph 395c of the immigration rules.
#Despite the introduction of section 85A of the 2002 Act, if an application remains pending consideration and no decision has been made, applicants or their legal representatives may always rectify omissions before a decision is made on the application; hence, avoiding the draconian consequences of section 85A of the 2002 Act.
For instance, if the applicant forgot to submit a specific document for whatever reason and realised before a decision has been made that such a document has not been submitted with the application, action must be taken immediately to submit the document before a decision has been made by the Secretary of State.
# The Upper Tribunal emphasised that the scheme of s.85A remains undisturbed by this determination. Applicants for extension of leave in a points-based system will need to read carefully the application form, and any lawful guidance associated with it, to ensure that they supply all relevant information in the application they are making. Omissions will no longer be able to be corrected on appeal. An application is outstanding (and therefore information can be supplied to support it) until it is lawfully determined. Parliament enacted the exclusionary rule in s.85A against the background of the Secretary of State’s duty to act fairly, and in the expectation that the duty would be complied with.
# The UT also emphasised that where that duty has not been complied with, the Tribunal judge can so decide and allow the appeal on that ground. In such cases it remains for the respondent to make a lawful decision in the light of the Tribunal’s determination and the information then available to her.
Clement Kulang is a senior legal advisor at Genesis Law Associates and can be reach by email firstname.lastname@example.org or mobile +44 (0) 7928 204791. Genesis Law Associates Ltd is a specialist immigration firm based in Birmingham. For more information about Genesis Law and its services please visit www.genesislaw.co.uk
This article or commentary is written for information purposes only. It does not, and is not intended to, amount to legal advice to any person. Views expressed in this article are those of the author only, not Genesis Law Associates as a whole. I strongly encourage those in need of legal advice in relation to their cases to seek legal advised from qualified lawyers as such advice would be tailored to their particular circumstances