Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01176/2013

THE IMMIGRATION ACTS

Heard at : Field House
Determination Promulgated
On : 18 June 2013
On : 24th June 2013

Before

LORD BURNS
UPPER TRIBUNAL JUDGE KEBEDE

Between

mohammed falah hasan al-khateeb
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms S Saifolahi
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Iraq born on 27 July 1989. He has been given permission to appeal against the determination of First-tier Tribunal Judge Grant-Hutchison dismissing his appeal against the respondent’s decision to refuse his application for leave to remain as a Tier 2 (General) Migrant.

2. The appellant entered the United Kingdom on 21 September 2009 with entry clearance conferring leave to enter as a Tier 4 (General) Student Migrant until 30 November 2010. On 8 December 2010 he was granted leave to remain as a Tier 1 (Post-Study) Migrant until 8 December 2012. On 30 October 2012 he applied for leave to remain as a Tier 2 (General) Migrant under the Points Based System.

3. The appellant’s application was refused on 19 December 2012 under paragraph 245HD(f) and under Appendix A as he had failed to achieve the required points for Appropriate Salary. The reason for that was that his Certificate of Sponsorship stated that his prospective employment most closely corresponded to occupation code 2132 on the Codes of Practice specified under Appendix J of the immigration rules. His sponsor had stated that his occupation most closely related to the occupation of an analyst programmer. The minimum acceptable rate of pay for a 37.5 hour working week for his prospective employment was £29,100 per annum, as stated in code 2132, but his certificate of Sponsorship stated that his salary would be £22,500 per annum. His prospective salary was therefore not at or above the minimum rate as specified in the Codes of Practice and accordingly he was not awarded any points in that category.

4. In his grounds of appeal to the First-tier Tribunal, the appellant stated that the decision had been made in reliance on his employer’s email of 30 November 2012 to the UKBA. However, as a result of the UKBA’s failure to provide his employer with the full and correct list or updated Code of Practice, she had, in error, selected the role of Analyst Programmer from the limited choices available. Had she had the full list, there were two jobs that matched his role and for which he received the appropriate salary. His employer had set out her explanation for choosing the wrong job role in a letter dated 4 January 2013, which he was enclosing. Had the correct job role been selected, his current salary would have met the Appropriate Salary requirements. The appellant enclosed, with his grounds of appeal, a copy of an email sent by his employer to the UKBA, dated 31 December 2012, explaining her error.

5. In accordance with the appellant’s request, his appeal was determined on the papers, without an oral hearing, by the First-tier Tribunal. Judge Grant-Hutchison considered that, in accordance with section 85A of the Nationality, Immigration and Asylum Act 2002, he was unable to take into account the letter from the appellant’s employer, since it was not before the respondent at any time from the date of the application to the decision. He found that the respondent could not be held responsible for an employer rushing an application which she misunderstood in order to complete the Certificate of Sponsorship and that the appellant could have checked the Code himself before submitting his application. He found that the respondent’s decision was therefore in accordance with the law and the immigration rules. He accordingly dismissed the appeal under the immigration rules, although finding that the accompanying section 47 removal decision was unlawful.

6. Permission to appeal to the Upper Tribunal was sought on the grounds that the First-tier Tribunal Judge should have considered the respondent’s evidential flexibility policy, that the judge failed to recognise that the respondent’s decision was flawed by reason of procedural irregularity, and that the respondent had provided the First-tier Tribunal with the wrong list of SOC codes and salaries.

7. Permission to appeal was granted on 26 April 2013, primarily on the first ground.

Appeal hearing and submissions

8. In her submissions, Ms Saifolahi clarified the different lists of jobs in the Codes of Practice, which was reflected in Appendix J, and explained the order of events leading to the refusal of the appellant’s application. The appellant’s employer had been contacted by the UKBA to clarify the appellant’s job description and she had erroneously responded by reference to the shorter list which was in the version dated April 2012 rather than the wider list giving more choices. Ms Saifolahi submitted that the judge had erred by failing to consider the evidential flexibility policy and the case of Rodriguez (Flexibility Policy) [2013] UKUT 00042 in that respect. At paragraph 10 of his determination, the judge erred in finding that the appellant could have checked the Code himself, since the Code used was correct. Furthermore, the respondent had acted unfairly by not contacting the appellant himself, as the evidential flexibility policy required. He had therefore had no opportunity to correct any errors. There was also unfairness in that the appellant’s employer had not been informed by the UKBA why the enquiry was being made and the consequences of providing the wrong employment title and neither had the employer been provided with the full list of occupations or the link to that list. Ms Saifolahi submitted that these were all matters that were relevant to an Article 8 consideration but no such assessment had been made by the judge.

9. Mr Deller submitted that this was not a case in which the evidential flexibility policy had not been followed by the respondent, since enquiries had been made by the UKBA of the person who was expected to be able to provide the correct information, namely the appellant’s employer. It was reasonable for the employer, rather than the appellant, to have been contacted, since she was the person who was best placed to answer the query. It was not for the respondent to spoon-feed the applicant and the respondent could not, therefore, be criticised for having failed to follow their own policy. This was not a Naved (Student – fairness – notice of points) [2012] UKUT 14 type situation since the appellant’s employer was acting in his interests. An Article 8 argument would struggle to survive alone, without there being any unfairness established.

10. We advised the parties that, in our view, the judge had made an error of law in his determination such that it had to be set aside and re-made. We also decided to re-make the decision by allowing the appeal on the basis that the respondent’s decision was not in accordance with the law. Our reasons for so finding are as follows.

Consideration and findings

11. Whilst, in the absence of an oral hearing, there were no specific submissions made before the judge in regard to the evidential flexibility policy and Rodriguez or Article 8 of the ECHR, nor grounds of appeal before him making specific reference to such issues, we consider that it was nevertheless incumbent upon him to consider them, given the circumstances of the case and the issues that were raised by the appellant in his grounds of appeal. That is particularly so, given the reference, in the written grounds, to the rules of natural justice and to the application being prejudiced, which ought indeed to have alerted the judge to considerations of common law fairness, as laid down in recent cases such as Naved. In the circumstances, and whilst he properly found that the appellant could not meet the specific requirements of the rules, we find that the judge erred by failing to go on to consider material matters, namely the evidential flexibility policy, fairness and Article 8. As such, his decision has to be set aside.

12. In re-making the decision we agree with Mr Deller’s submission that the evidential flexibility policy does not require the UKBA to nursemaid or spoon-feed applicants and that, in the appellant’s case, there had been regard to the policy. The appellant’s employer had been contacted by the UKBA to clarify his job role within the category of Code 2132 and had acted upon the response as set out in the email of 30 November 2012. This is not, therefore, a case that we believe involves a failure to consider and apply the evidential flexibility policy. However, what we do find is that it is one to which the principles of common law fairness apply, as expressed in the case of Naved, albeit in different circumstances, and where we consider that there has been unfairness.

13. Whilst we would not disagree with the findings of Judge Grant-Hutchison, that the respondent cannot not be held responsible for an employer rushing an application which she misunderstood, we do find that the respondent must bear some responsibility in the advice they give in circumstances where, owing to the complex nature of the rules they have introduced, enquiries are made for clarification. It is the appellant’s employer Ms Herbertson’s evidence, in her letter of 11 June 2013, that she telephoned the UKBA for assistance, after being asked to clarify the appellant’s job role, and told them that none of the role descriptions in the table she had before her matched the appellant’s role and that she was told to just pick one. It seems to us that, given the substantial and recent change in the Code of Practice, and the vastly increased range of jobs and salaries in the Codes of Practice, within the Code 2132, and in view of the particular concerns expressed by Ms Herbertson, that the person with whom she was making her enquiry at the UKBA bore some responsibility in ensuring that she was looking at the correct and most up-to-date list rather than dealing with her in what she indicates in her letter to have been a somewhat perfunctory manner. There has been no challenge to the explanation given by Ms Herbertson in her letter and we see no reason not to accept her account of events. It seems that she did everything she could do, acting upon the advice of the UKBA, and that the error in the job role she chose arose not so much because she was careless and rushed matters, but because she acted upon incorrect, or, at the very least, incomplete advice from the UKBA. As such, we find there was unfairness in the way in which the appellant’s application was dealt with by the UKBA.

14. We note what was said by the Upper Tribunal in their decision in Naved at paragraph 21:
“21. …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.
22. 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.”
15. We consider that the appellant’s circumstances fall within this situation and we accordingly allow the appeal on the basis that the decision was not in accordance with the law. The appellant now awaits a fresh and lawful decision in his application. That being the case, we have not considered it appropriate to go on to consider Article 8.

DECISION

16. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision has been set aside. We re-make the decision in the appeal by allowing it to the limited extent as stated above.

Signed

Upper Tribunal Judge Kebede

Date: 21 June 2013