New evidence in combined appeals involving Points Based System applications

In Olatunde v Secretary of State for the Home Department [2015] EWCA Civ 670, (Judgment dated 1 July 2015) the Court of Appeal considered section 85A of the Nationality, Immigration and Asylum Act 2002 (“NIA Act 2002”) and its applicability to appeals against the refusal of Points Based System (PBS) applications when combined with other appeals against an immigration decision of another kind under section 82(2) of the NIA 2002 – in this case a notice of intention to remove.

The cases of HO and K were heard together as they both raised issues relating to the interpretation of Section 85 of the NIA 2002.

HO

HO’s application for leave to remain as a Tier 1 (General) Migrant had been refused as he failed to submit evidence of his income in the required format. Along with the refusal decision, a notice of intention to remove was also served under section 47 of the Immigration, Asylum and Nationality Act 2006 (IANA 2006).

He appealed against this decision to the First-tier Tribunal and sought to rely on evidence of his earnings that had not previously being submitted. His appeal was dismissed on the basis that the evidence now submitted did not meet the requirements of the Immigration Rules.

In his appeal before the Upper Tribunal, HO sought to rely on documents he had obtained since the refusal of his application by the Secretary of State and submitted that the First-tier Tribunal Judge failed to give sufficient weight to them. The Upper Tribunal however held that this evidence was not admissible by virtue of Section 85A (3) and (4). The appeal was dismissed.

K

K had applied for leave to remain as a Tier 1 Entrepreneur. Her application was refused for a number of reasons, namely that the Secretary of State was not satisfied that she genuinely intended to set up a business of the kind that she described; did not think that her business plan was realistic; did not think that the advertising that had been put in place reflected a genuine attempt to obtain business of the kind she proposed to carry on and did not think that the contract on which she relied as evidence of trading activity was a genuine agreement for work. The Secretary of State concluded that the application was not genuine and awarded no points in relation to the availability of funds. Like HO, a notice of intention to remove was served under section 47 of the 2006 Act.

K lodged an appeal to the First-tier Tribunal. She relied on a contract with a clothing company but this was accorded no weight by the Judge as he did not find it to be a genuine document.  K also relied on invoices issued to the same clothing company. However, as the documents postdated the application for leave to remain, they were not admitted by virtue of Section 85A. The Judge of the First-tier Tribunal also held that funds available to K and her partner could not be regarded as available to the business and dismissed the appeal.

The Upper Tribunal did not accept the argument that the First-Tier tribunal Judge had found the contract to be a forgery. In any event, it ought to have been excluded under section 85A as it had come into existence after the date of application. The Upper Tribunal relied on Ahmed (PBS: admissible evidence) [2014] ULUT 00365 (IAC) which held that in cases where provisions relating to point-scoring are inextricably linked to decisions that are not, section 85A applies to both.

Section 85A of the Nationality, Immigration, Asylum Act 2002 (NIA 2002)

The right to appeal against an immigration decision is contained in section 82 of the NIA 2002. Section 82(2) defines an immigration decision and includes a refusal of leave to remain if the result of that refusal is that the person concerned has no leave to remain [82(2)(d)] and also a decision that a person is to be removed by way of direction under section 47 of the Immigration, Asylum and Nationality Act 2006 [82(2)(ha)]

Section 85(4) of the NIA 2002 states that on appeal, the tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of decision, subject to Exception 1 and 2. Only Exception 2 is relevant to this case:

“(3) Exception 2 applies to an appeal under section 82(1) if –

(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d)

(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System” and

(c) the appeal relies wholly or partly on grounds specified in section 84(1) (a)(e) or (f)

(4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it –

(a) was submitted in support of, and at the time of making, the application to which the immigration decision related

(b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c)

(c) is adduced to prove that a document is genuine or valid, or

(d) is adduced in connection with the Secretary of State’s reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points Based System”.

The Appellants’ advocate argued that neither HO’s appeal or K’s appeal fell within Section 82A(3) as this applied to simple appeals against refusal of leave to remain whereas this appeal encompassed two separate decisions – one under 82(2)(d) and the removal notice under 82(2)(ha).

The Court of Appeal held that the rationale behind section 85(1) was to ensure that all decisions against which an individual has a right of appeal are considered and disposed of at the same time and that proceedings should not be considered to be indivisible, even though it includes separate challenges to separate decisions.

Furthermore the Court held that the policy underlying Section 85 and 85A was for the Tribunal to consider a wide range of evidence in relation to appeals generally but only a limited range of evidence in relation to Points Based System appeals. This therefore supported the conclusion that section 85(A)(3)(a) ought to be read as referring to a part of appeal proceedings involving a challenge to a decision under 82(2)(a) or (d), regardless of whether there is also a challenge under a separate paragraph of 82(2). It was held that Parliament could not have intended for section 85A(3) to apply only where there was an immigration decision specified in 82(2)(a) or (d) as it would mean that one set of evidential rules would apply to a decision where no removal decision had been made with the refusal of leave to remain, and a different set of rules where a removal decision is deferred to after an appeal against the refusal of leave to remain has been determined. The Court relied on the decision of Mushtaq v Secretary of State for the Home Department [2013] UKUT 00061 (IAC) which held that section 85A(3) applied when an appeal is brought under section 82(2)(a) or (d) irrespective of whether an appeal is also brought against another immigration decision.

The case therefore confirms that where an appeal has been brought against a decision relating to a Points Based System application, the exception under 85A(3) bites regardless of whether other decisions are being appealed against simultaneously. This will only apply to appeals that are currently in the system as the Immigration Act 2014 abolished full appeal rights for Points Based System applications on 2 March 2015.