Recent decisions from the Upper Tribunal
The Upper Tribunal today promulgated a number of decisions raising important points of law and practice.
The Secretary of State has produced a policy, which is intended to give effect to the principles of common law fairness identified by the Upper Tribunal in Patel (relocation of sponsor licence – fairness)  UKUT 211 (IAC). The policy is appended to the determination of the Upper Tribunal for ease of reference.
In essence, the policy provides that, in cases of potential discretionary refusal under paragraph 322 of the immigration rules, Home Office caseworkers should follow the ‘Patel’ process. Where this is not done, the resulting decision will not be in accordance with the law.
The Tribunal also mention at paragraph 13 an interesting issue of practice where a student wishes to obtain a new CAS whilst their passport remains with the Home Office:
‘The appellant, through Mr Murphy, expressed concern that she would not be able to obtain a CAS without her passport and that this was with the Home Office. Mr Deller referred to the internal case working instruction which states that a certified copy of the student’s passport will be given to the appellant because colleges will require evidence of status. We suggested to Mr Murphy that the appellant contacts the respondent forthwith to secure her passport to enable her to vary her application…’
The Upper Tribunal held that where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that it is otherwise in the public interest to determine.
In relation to private life in the UK with reference to Article 8 the Tribunal commented at paragraphs 13 and 14:
‘13. First, something much more substantial by way of private life is required in the case of a person who arrived in the United Kingdom as an adult with limited leave as student and who was never granted indefinite leave to remain before it could be said that removal or deportation was an interference with private life that required justification.
14. Second, any failure to have regard to the July 2012 rules and the two-stage process identified in MF would have been wholly immaterial to the appellant as the new rules make the task of identifying an Article 8 private life that much more onerous where a person has not spent half his life or twenty years here…’
When considering an application for permission to appeal that is out of time, a judge must (i) consider all available material including the material on file and bear in mind the need for evidence to rebut the presumption of service, (ii) consider the extent of the delay and whether any explanation covers the whole of that period; (iii) give brief reasons for the discretionary decision to extend time or refuse to do so. The same principles apply whichever side is the applicant.
The Upper Tribunal explained at paragraph 20:
‘20. It is, however, clear that a judge of the First-tier Tribunal dealing with a permission application which is out of time needs to ensure that he or she has considered all the available material, including indications of when the determination was sent and whether there is any evidence that it was not received in accordance with the deemed service provisions of the Procedural Rules. The judge will also need to consider the extent of the delay and whether the evidence or explanations provided cover the whole of that delay. The decision whether to extend time is the exercise of a judicial discretion, and there should normally be reasons, which may well be very brief, supporting the decision reached. The same rules apply whether it is the individual or the government that seeks an extension of time’.
The Upper Tribunal held that neither section 85A of the Nationality, Immigration and Asylum Act 2002 nor the guidance in DR (Morocco)*  UKAIT 38 regarding a previous version of section 85(5) of that Act has any bearing on an appeal under the Immigration (European Economic Area) Regulations 2006. In such an appeal, a tribunal has power to consider any evidence which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
The President of the Tribunal explained at paragraphs 16 and 17:
‘16. I accept that the Schedule to the EEA Regulations brings section 85(4) of the 2002 Act into play in EEA appeals. Section 85 (4) is in the following terms:-
“‘On an appeal under section 82(1)… against a decision [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.”
Although section 85(4) is subject to subsection 85(5), introducing the exceptions made in section 85(A), none of those exceptions are applicable to an EEA appeal and need not be considered further in this decision.
17. Construing the plain words of section 85(4) without regard either to the exceptions in section 85A and/or the previous guidance in DR (Morocco) relating to a different version of the statute and a different class of immigration decision, the section permits post-decision evidence to be received by the Tribunal about “any matter which the Tribunal thinks relevant to the substance of the decision”.’