Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04187/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 August 2016
On 11 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

mR M a rahman
(ANONYMITY DIRECTION not MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R. Claire, counsel instructed by VMD solicitors
For the Respondent: Mr C. Avery, Home Office Presenting Officer
_____________________________

ERROR OF LAW & REASONS
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1. The Appellant is a national of Bangladesh, born on 7 December 1983. On 3 September 2014, he applied for further leave to remain as a Tier 1 Entrepreneur Migrant. This application was refused on 17 January 2015 on the basis that the Respondent was not satisfied that the Appellant (a) had genuinely established, taken over or become a director of one or more businesses in the United Kingdom and continued to operate that business or businesses; (b) genuinely intended to invest the money referred to in Table 4 of Appendix A to the Immigration Rules in his business or businesses; (c) that the money referred to in Table 4 of Appendix A is genuinely available to him and will remain available to him and (d) the Appellant did not intend to take employment in the United Kingdom under the terms of paragraph 245DE of the Rules.
2. The Appellant appealed against this decision and his appeal came before First tier Tribunal Judge Cas O'Garro for hearing on 30 July 2015. In a decision promulgated on 27 August 2015, she dismissed the appeal. She found at [31] that the evidence produced by the Appellant at the appeal before her was caught by section 85A of the Nationality, Immigration and Asylum Act 2002 and that section 85A(4) prevents her from taking into account any such evidence, following Ahmed (PBS: admissible evidence) [2014 UKUT 00365. Consequently, she found that the Appellant was not able to demonstrate, based on the documents submitted at the date of his application, the viability and credibility of his business [32]. In respect of Article 8 of ECHR, the Judge was satisfied that the Appellant was unable to meet the private life requirements of the Immigration Rules [35] and that it was not necessary to move on to consider the second stage and Article 8 proportionality because the Appellant's circumstances did not raise any exceptional factors [36].
3. The grounds in support of the application for permission to appeal to the Upper Tribunal and the application to extend time to appeal asserted that the Judge had erred materially in law in that she had not taken into consideration the full facts of the Appellant's case; misunderstood some of the oral evidence presented and failed to appreciate what evidence is permitted under section 85(4)(c) of the NIAA 2002. In particular, it was asserted that the Judge erred at [31] in stating that she could not consider the documentary evidence when a significant amount of the evidence was evidence submitted as part of the original application and other documents should have been accepted under the exception provided at section 85A(4)(c) eg evidence as the genuineness of contracts between the Appellant's company and their clients and proposed works and the veracity of the client D'Ultimate. The reason for the application to extend time was that the decision had only been served upon the Appellant's representatives on 12 October 2015.
4. In a decision dated 19 July 2016, Upper Tribunal Judge Allen granted the application for permission to appeal on the basis that it was arguable that the Judge did not give adequate attention to documents which fell appropriately for consideration at the hearing and the oral evidence at the hearing and that arguably the decision does little more than endorse the respondent's decision without demonstrating an independent evaluation of the evidence by the judge herself.
Hearing
5. At the hearing before me, Mr Claire submitted that the Judge did not give adequate attention to documents which fell appropriately for consideration at the hearing. The Appellant was entitled to know why his claim has been refused, but the entirety of his evidence was not referred to, nor was any reference made to the grounds of appeal. The Appellant gives rational and reasonable explanations for the discrepancies in his account and section 85A(4)(c) permits evidence to be adduced to show that a document is genuine or valid so the Appellant's oral evidence is admissible. There was no reference to any explanation given by the Appellant as to the genuineness of the contracts. The Judge was under a duty to give reasons and the determination contains material errors of law for the reasons given in the grounds of appeal.
6. In his response, Mr Avery submitted that section 84(5)(c) was not applicable in that nothing arose from the documents but rather the discrepancy arose from the information given at the interview. The Judge clearly took a correct approach in light of the decision in Ahmed, which made clear that the Judge was confined to consideration of the evidence before the decision maker. With respect to the oral evidence at [8] of Ahmed the Judge is precluded from hearing evidence which goes to the acquisition of points. In respect of contracts with third parties, given the approach at [5] of Ahmed the Judge was confined to consideration of the documents before the Secretary of State. Mr Avery submitted that the only way the Appellant could advance his argument is to say that Ahmed is wrong.
Decision
7. I reserved my decision, which I now give with my reasons. The case essentially turns on whether the Judge correctly applied the decision in Ahmed (PBS: admissible evidence) [2014] UKUT 00365 where the Upper Tribunal held inter alia as follows:
"4. ? The relevant law is contained in s 85A(3) and (4), expressed as an exception to a general rule that all relevant evidence may be considered:
"(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'."
5. The purpose of that provision is quite clear. It is that where a Points Based application is made and refused, the assessment by the Judge is to be of the material that was before the decision-maker rather than a new consideration of new material. In other words the appeal if it is successful is on the basis that the decision-maker with the material before him should have made a different decision, not on the basis that a different way of presenting the application would have produced a different decision?
6. As is apparent from her judgement, the judge took into account material other than that which was before the decision-maker. In a spirited defence of her procedure Mr Asme has submitted that the way in which the letter was divided into Non-Points Based and Points Based matters demonstrates that in assessing whether the business plans were genuine the decision-maker was refusing the application on grounds which were not related to the acquisition of points under the Points Based System. If that is right, Mr Asme submits, then the Judge was at liberty to look at further evidence. We are satisfied however that that is a submission which cannot succeed. There are two connected reasons for that.
7. The first is that in paragraph 245DD(k) of the Statement of Changes in the Immigration Rules, HC 395 (as amended) is the following:
"If the Secretary of State is not satisfied with the genuineness of the application in relation to a points scoring requirement in Appendix A those points will not be awarded."
That clearly links the assessment of the genuineness of the scheme to the acquisition of points and rules out, in our judgement, the submission that the assessment of the genuineness of the scheme was a ground not related to the acquisition of points under the Points Based System. On the contrary, the wording of the Rule links the two matters inextricably.
8. Secondly, as we pointed out to Mr Asme in the course of his submissions, if he were able to show that the Judge was entitled to look at the genuineness of the scheme for the purposes of the appeal before her, she would nevertheless not be able to reach a decision that because of her view about the genuineness of the scheme, points should have been awarded. That is because that would itself link the genuineness of the scheme to the acquisition of points, and she is prohibited from hearing evidence which does go to the acquisition of points."
8. Thus it is clear from Ahmed at [6] that the Judge is precluded from taking into account any material that was not before the decision maker. This would include additional evidence that post dated the decision.
9. This issue was subject to further consideration by the Court of Appeal in Olatunde v Secretary of State for the Home Department [2015] EWCA Civ 670 where Lord Justice Moore-Bick held as follows at [26]:
"? I am inclined to think that section 85A(3) would prevent the tribunal from taking into account new evidence that related to the genuineness of the application insofar as it was adduced to show that the requirements of sub-paragraphs (b), (c) and (d) were satisfied; and the failure to obtain the required number of points would inevitably lead to the refusal of the application."
10. Whilst His Lordship refers to new evidence rather than material, I do not consider that oral evidence given at the hearing is always necessarily to be excluded. For example, had the decision maker made a material error in respect of the assessment of the evidence before him or her then I consider that the oral evidence of an Appellant could be admitted to explain this. However, that is not the case in respect of this Appellant, whose application was refused on four separate grounds. Whilst he gives a plausible explanation as to why his and his business partner's answers varied in respect of the amount of money received from their client, Saregama, because they were interviewed at different times and the Appellant provided updated information as to their income, he also accepts at [9] of his witness statement that he provided incorrect dates for the contracts he supplied with his application and some of the contracts he relies upon are post decision. There are also further issues that the Respondent was entitled to place reliance on which went unexplained at the date of decision: conflicting responses by the Appellant and his business partner about the market research carried out; the Appellant's response in interview about local competitors and the absence of a listing for the business at its registered address.
11. For these reasons, I find that the First tier Tribunal Judge was bound by the decision in Ahmed (PBS: admissible evidence) [2014] UKUT 00365 and there was no material error of law in her decision.

Deputy Upper Tribunal Judge Chapman

11 October 2016