Unfairness and the restriction on evidence in points-based system appeals
20 January 2012
The Asylum and Immigration Chamber of the Upper Tribunal’s determination in Naved (Student – fairness – notice of points)  UKUT 14 (IAC) focuses on the effects of section 85A of the Nationality, Immigration and Asylum Act 2002, which was brought into force in May of 2011, but the Tribunal’s recognition that its jurisdiction entitles it to allow an appeal against any decision taken by the UKBA on the basis of straightforward unfairness seems to indicate the arrival of a new era in decision making by the First and Upper Tier Tribunal.
Section 85A has always been controversial. It effectively prevents the First Tier Tribunal (and the Upper Tier Tribunal) from taking into account any evidence relevant to that decision in any appeal against a decision taken by the UKBA to refuse to grant a person leave to remain in the UK under the Points-Based System, unless it was sent to the UKBA along with the Appellant’s application.
It’s not overstating things to say that the section 85A evidence restriction is capable of resulting in injustice. The forms people have to fill in when they make their applications under the points-based system are extraordinarily long, leading inevitably to the possibility of missing out an answer to one of the myriad questions or, as often happens, of simply failing to realise the necessity of sending the UKBA a bank statement or another document.
Until last May people who made such mistakes, but could show that at the time they made their applications they did in fact possess the necessary evidence in order to have succeeded in their applications, could present the evidence at their appeals against the UKBA’s decisions, and the First Tier Tribunal could take it into account. The appeal would be allowed if the Tribunal was satisfied that the requirements of the Rule were made out by the Appellant’s evidence, even if he or she had failed to provide it to the UKBA at the time of the application for leave to remain.
The injustice caused to the Appellant in Naved by section 85A was striking. He entered the UK as a student in January 2010. In March 2011 he completed the course he had come to the UK to study and thereafter applied for further leave to remain in order to do another course.
Under the Tier 4 Immigration Rules, people who have already studied in the UK for more than six months and have completed the course they were studying are regarded as having an "established presence” in the UK. This means that they don’t have to show that they have as much money with which to maintain themselves in the UK as they would have to show if they had just arrived.
Upon receiving the Appellant’s application, the UKBA officer considering it emailed the Appellant’s previous college to enquire whether the Appellant had studied there, and was told in the college’s reply that a person whose name was similar to but not the same as the Appellant’s had not completed his course and had moved to another college.
The Appellant knew nothing of the UKBA’s enquiry or of the information provided to them by his previous college. The UKBA went on to refuse his application on the basis that he hadn’t completed his course and was therefore not someone who had an established presence in the UK. He therefore hadn’t shown that he had enough money to meet the necessary maintenance requirements for his new application.
At his appeal, the Appellant provided documents showing that he had indeed completed his course and had passed it. But under section 85A the First Tier Tribunal was prevented from taking those documents into account.
The Upper Tribunal has resolved this matter by reference to its developing case law regarding "unfairness”. In Thakur (PBS decision - common law fairness) Bangladesh  UKUT 00151 (IAC), and latterly in Patel (revocation of sponsor licence – fairness) India  UKUT 211 (IAC), the Tribunal had indicated that where an applicant for further leave to remain as a Tier 4 (General) student had had his or her application refused because, without his or her knowledge, the UKBA had revoked the Tier 4 Sponsor licence held by the college at which he wished to study, the UKBA was bound to notify the student of its decision to revoke that licence and to provide the student with an opportunity to obtain a Certificate of Acceptance for Studies from a different college (that still held its licence). In failing to notify the student of this and to provide him or her with such an opportunity, the UKBA had acted unfairly.
Since the Tribunal had a "public law” jurisdiction (it was permitted under section 84 (1) (e) of the Nationality, Immigration and Asylum Act 2002 to allow appeals where the decision was "not in accordance with the law”), the Tribunal could and should allow appeals in such circumstances.
In Naved, the Tribunal noted that both of its decisions in Patel and in Thakur had been brought to the attention of the Court of Appeal in the case of Sapkota v Secretary of State for the Home Department  EWCA Civ 1320. Quoting Lord Justice Aitken’s remarks in that case, the Tribunal said:
"The Court of Appeal has accordingly confirmed our appellate jurisdiction to conclude that a particular decision is unfair, and so not in accordance with the law. Applying that to the circumstances of the present case, the decision is not in accordance with the law, and accordingly a lawful decision has yet to be made, because the Home Office never put the appellant on notice that such evidence would be required, or gave him any opportunity to answer the result of their inquiries with his college. There was nothing at all in the application form to show that the appellant needed to include documentary evidence of his right to ‘established presence’; and no chance of his producing any evidence to contradict the result of the inquiries, only revealed in the decision itself."
This decision is made by the Asylum and Immigration Chamber of the Upper Tribunal, chaired by its President, Mr Justice Blake. The determination concludes with the Tribunal emphasising that it hasn’t disturbed any part of the section 85A regime, but that it is nonetheless the case that "an application remains outstanding until it is lawfully determined”.
Cases like this where the UKBA makes enquiries of a college (or of an employer) and either provides no evidence of the enquiry or no opportunity for an applicant to challenge the evidence provided by that enquiry are not unusual. Following the Tribunal’s determination it appears the First Tier Tribunal has more a muscular role in its determination of appeals than it perhaps thought it did.
Anyone making any application to the UKBA under the Points-Based System or appealing against a refusal of such an application is strongly urged to seek professional legal advice.