The decision


EA (Section 85 (4) explained) Nigeria [2007] UKAIT 00013


Heard at: Field House Date of Hearing: 8 August 2006
Date of Promulgation: 30 January 2007

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Warr
Senior Immigration Judge Batiste




For the Appellant: Ms M Yagnik, instructed by Remar & Co. Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer

The effect of s85(4) of the 2002 Act (as expounded in LS (Gambia) [2005] UKAIT 00085) is not to make the Tribunal a primary decision-maker. The focus must always be on the decision actually made in response to the appellant’s application. An in-country appellant does not succeed by showing that he meets the requirements of the Immigration Rules at the date of the hearing. He can succeed only by showing that the application that he made would be successful at the date of the hearing.


1. This is the reconsideration of the appeal of the appellant, a citizen of Nigeria, against the decision of the respondent on 7 February 2006 refusing to vary his leave in order to enable him to remain in the United Kingdom as a student.

2. He had leave to enter for twelve months on the usual terms applicable to a student. He was subsequently granted leave to remain on 30 November 2005 in order to study for a degree course in accountancy and finance at London Metropolitan University. He did not in fact continue his studies at London Metropolitan University. He began a course at an institution called Anfell College. On 23 November 2005 he applied for leave to remain in order to continue his studies for a Bachelor of Science degree in computer science at Anfell College. Anfell College closed in December 2005. On 7 February 2006 the appellant’s application was refused, the ground of refusal being that Anfell College was not, on that date, on the Department of Education and Skills’ Register of Education and Training Providers. Further, as the college had closed, the Secretary of State was not satisfied that the appellant was enrolled on a course of study meeting the requirements of the Immigration Rules. The appellant thereupon (although having no permission from the respondent to do so) began a course at Holborn College, an institution that he had attended previously. He began studies for a three year accountancy degree. There is no doubt that Holborn College is on the Register.

3. Before the Immigration Judge it was submitted on the appellant’s behalf that, because he met the requirements of the Immigration Rules on the date of the hearing, he was entitled to the benefit of s85(4) of the 2002 Act as interpreted in LS (Gambia) [2005] UKAIT 00085, and that his appeal should be allowed although he did not meet the requirements of the Rules at the date of the decision. The Immigration Judge wrote in her determination as follows:

“I accept the respondent’s submissions that, as Anfell College was not registered with the Department for Education and Skills [the] application was bound to fail as the appellant was unable to meet all the criteria of paragraph 57 of HC 395. The decision of the Secretary of State was thus correct. I do not accept counsel’s argument that the appellant’s subsequent enrolment at London Metropolitan University [sic: no doubt Holborn college is intended] retrospectively fulfilled the requirements of Rule 57. At the time of decision the Secretary of State was correct.”

4. The grounds of reconsideration raise the same point in relation to s85(4) and LS (Gambia) as was raised before the Immigration Judge.

5. Section 85(4) is as follows:

“On an appeal under section 82(1) or 83(2) 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 the decision.”

Section 85(5) provides, by way of contrast, that an appeal against entry clearance or a certificate of entitlement (that is to say, an out-of-country appeal) is to be decided by reference only to evidence relating to the circumstances at the date of the decision. As the Tribunal pointed out in LS (Gambia) s85(4) applies, without any difference of wording, to asylum and human rights appeals and in-country immigration appeals. It follows that, under the 2002 Act, they are governed by the same principles so far as the admissibility of evidence is concerned: that is what s85(4) is about.

6. But the evidence is only admissible in so far as the Tribunal thinks it “relevant to the substance of the decision”. That phrase is important. It is not the evidence’s relevance to the appellant’s claim or his application that is in question: it is its relevance to the decision that was actually made. It may be the case that, as has been suggested a number of times in the Court of Appeal, the issue of whether a person is a refugee at any particular time is “one composite question”; but a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the Rule in question in the context of the application that that person has made.

7. It is thus not open to an appellant to argue simply that, on the date of the hearing, he meets the requirements of the Immigration Rules. He can succeed only if he shows that the decision that was made was one which was not in accordance with the Immigration Rules. Section 85(4) allows him to show that by reference to evidence of matters postdating the decision itself, and it may well be that the effect is that the question for the Tribunal in an in-country case is whether the decision can be justified as a correct one at the date of the hearing. But that does not mean that the Tribunal is the primary decision-maker. The Tribunal’s task remains that of hearing appeals against decisions actually made. The correct interpretation of s85(4) is perhaps best indicated by saying that the appellant cannot succeed by showing that he would be granted leave if he made an application on the date of the hearing: he can succeed only by showing that he would be granted leave if he made, on the date of the hearing, the same application as that which resulted in the decision under appeal. The subsection does not permit an appellant to change his case under the Immigration Rules for being allowed to remain in the United Kingdom. (That is, of course, without prejudice to the fact that s84(1) may allow the appeal to succeed on different grounds entirely.)

8. We have expressed our views on this issue in deference to the grounds and because we gather that the effect of s85(4) is widely misunderstood. In our view the Immigration Judge in this case materially erred in law by apparently rejecting the sub-section altogether and asking herself whether the appellant could be regarded as having “retrospectively fulfilled the conditions of Rule 57”. That was not the question. The question was whether the evidence available to the Immigration Judge showed that, at the date of the hearing, the specific application to study at Anfell College should be granted rather than refused.

9. In those circumstances we would normally go on to make our own determination allowing or dismissing the appeal on its merits. At the hearing before us, however, it appeared that there is a difficulty. As soon as the appellant realised that Anfell College had closed, he supplemented his application by letter indicating that he now sought leave to remain in order to study at Holborn College rather than Anfell College. Mr Avery was able to confirm that the letter was now on file: it was posted on 30 January and received in the Home Office on 2 February, some days before the decision was made. It is evident that it had not reached the file in time, and so the decision related solely to Anfell College without taking account of the amendment to his application that the appellant had submitted. Mr Avery willingly conceded that the decision was bad: the Secretary of State had not taken into account all the materials in the application as a whole.

10. In those circumstances the appropriate decision is that the appellant’s application remains outstanding, awaiting a lawful decision by the Secretary of State. We substitute a decision allowing the appellant’s appeal on those terms.