Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/03938/2015
IA/03939/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19th August 2016
On 24th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

rana waqas shamshad
mohammed sohail wajid
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms A Jones, Counsel instructed by Farani Javid Taylor Solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants and each of them are nationals of Pakistan whose respective dates of birth are recorded as 19th February 1988 and 13th March 1982. On 8th August 2014 they made application for leave to remain in the United Kingdom as Tier 1 (Entrepreneur) Migrants under the points-based scheme as well as for biometric residence cards. On 13th January 2015 decisions were made in each case to refuse the applications and the Appellants appealed.
2. The appeals were heard by Judge of the First-tier Tribunal Andonian on 8th January 2016, sitting at Taylor House. He made numerous adverse findings of fact against the Appellants and found parts of their evidence inconsistent with one another. He was driven to finding on the issue as to whether or not the Appellants were genuinely intending and were able to establish a business in the United Kingdom, that the application was not genuine and he dismissed the appeal on all grounds.
3. Not content with that decision, by notice dated 28 January 2016 the Appellants and each of them made application for permission to appeal to the Upper Tribunal. The grounds run to eighteen paragraphs. The principal ground was that the judge wrongly required the Appellants to adduce post-decision evidence in order that he would be assisted in determining the principal issue in the case, notwithstanding representations made by Ms Jones, who appeared below, to the effect that not only ought such evidence not be admitted, given the provisions of Section 85A of the Nationality, Immigration and Asylum Act 2002, but that it would be unfair to hold against the Appellants their failure to adduce inadmissible evidence. A further point which the judge had taken against the Appellants related to grammatical errors which were said to be minor but that point falls away in the light of the concession made quite properly by Ms Fijiwala.
4. Section 85A of the 2002 Act provides as follows:
"85 provides - matters to be considered:
(1) An appeal under Section 82(1) against the decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the Appellant has a right to appeal under Section 82(1).
(2) If an Appellant under Section 82(1) makes a statement under Section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of the kind listed in Section 84(1) against the decision appealed against.
(3) Sub-Section (2) applies to a statement made under Section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under Section 82(1), 83(2) or 83A(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.
(5) But in relation to an appeal under Section 82(1) against the refusal of entry clearance or refusal of a certificate of entitlement under Section 10 -
(a) sub-Section (4) shall not apply, and
(b) the Tribunal may consider only the circumstances appertaining at the date of the decision to refuse."
Importantly Section 85(4) is qualified by Section 85A. That provides certain exceptions:
"(1) This section sets out the exceptions mentioned in section 85(5).
(2) Exception 1 is that in relation to an appeal under Section 82(1) against an immigration decision of a kind specified in Section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.
(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 insofar as it relies on grounds other than those specified in sub-Section (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."
5. This was an application made under the points-based system so that Section 85A, Exception 2 applied. I am grateful to Ms Jones who was able to take me to parts of the judge's Record of Proceedings which accord with the notes of the Presenting Officer who appeared below. It is clear that Judge Andonian asked the following question:
"Do you have an up-to-date business plan?
The response was:
"Not at the moment".
Thereafter the judge went on to say that he would have liked to have seen an up-to-date business plan and a future plan for profit and loss. He went on to say that it was an important part of the evidence that was lacking and said that he required it in order to establish whether or not the business was genuine. He went on to criticise the Appellant's solicitors for not having brought the business plan and profit and loss accounts up to date.
6. Further, the judge went on to ask the first Appellant what work he had been doing in the last six months, that is to say prior to the hearing and asked for proof of it. When Ms Jones objected to the line of questioning on the basis that it was not permitted given the provisions of Section 85A, it is common ground that the judge said that the new evidence did not mean what Ms Jones thought it to mean and that since it was the same business it was not new evidence.
7. I observe that insofar as the business is a person in law the Appellants are also the same persons but that does not mean that they can adduce fresh evidence. It is excluded.
8. The difficulty with the decision as it stands is that notwithstanding the numerous adverse findings made, it is perfectly clear that Judge Andonian significantly held against the Appellants the lack of up-to-date evidence and it is not possible to say the extent to which those findings were affected by the absence of evidence which ought not to have been adduced.
9. I would add that even if the evidence had been admissible there was unfairness because the Judge, at the very least, of his own motion, ought to have granted an adjournment for it to be adduced.
10. I am, as I have already said, grateful to Ms Fijiwala who did not seek to argue against the submissions made on behalf of the Appellants. In my judgment there is a material error of law. The question then is whether I can remake the case or whether it needs to be remitted.
11. It is common ground that none of the findings can stand. There will need to be a de novo hearing before a judge other than Judge Andonian and in those circumstances I take the view, having regard to the Senior President's Practice Direction, that the proper course is for the matter to be remitted to Taylor House where the matter will be heard again by a judge other than Judge Andonian. No interpreter is required and it will assist the Resident Judge at Taylor House to know that the time estimate put on this case is three hours.
Notice of Decision
12. The decision of the First-tier Tribunal contained a material error of law and is set aside. The matter is remitted to the First-tier Tribunal where the matter will be heard again with no findings of fact preserved.

No anonymity direction is made.

Signed Date 24 August 2016

Deputy Upper Tribunal Judge Zucker