Tribunal decisions

The decision

IAC-FH-GJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08374/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22 October 2013
On 24 December 2013

Before

UPPER TRIBUNAL JUDGE PETER LANE

Between

Muhammad Nadeem Khan
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Spurling, Counsel, instructed by Kanth-Kanth Solicitors
For the Respondent: Mr Z Kiss, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant, a citizen of Pakistan, born on 22 December 1973, originally arrived in the United Kingdom in 2005 as a student, and was granted further leave to remain on that basis. On 17 September 2012, he applied for leave to remain as a Tier 1 (Entrepreneur) Migrant, based on his establishment of KN Security Services Limited. The appellant’s application was refused by the respondent on 28 February 2013. The respondent did not consider that the appellant had supplied evidence of contracts between third parties and his company, such as to show that he was engaged in business activity as claimed. Indeed, at G23 of the application form, under the rubric “the applicant must provide one or more contracts for work to demonstrate trading” the applicant had ticked the box marked “no – no contracts have been supplied”.
2. In the respondent’s decision letter, we find this:-
“Also you have stated on your application form that no contracts have been submitted, there is no indication that any exist and this document does not form part of a series of documents. For this reason, we have not requested any additional evidence from you as per paragraph 245AA(c) of the Immigration Rules, as paragraph 245AA(b) does not apply to your application.”
3. At the date of the decision, paragraph 245AA read as follows:-
“245AA. Documents not submitted with applications
(a) Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).
(b) If the applicant has submitted:
(i) a sequence of documents and some of the documents in the sequence have been omitted (for example, if one bank statement from a series is missing);
(ii) a document in the wrong format; or
(iii) a document that is a copy and not an original,
The UK Border Agency may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.
(c) The UK Border Agency will not request documents where a specified document has not been submitted (for example, an English language certificate is missing), or where the UK Border Agency does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.
…”
4. At [30] to [37] of the First-tier Tribunal’s determination, the judge set out his reasons for finding against the appellant on this issue. Before the judge, it was part of the appellant’s case that he had, in fact, submitted, before the respondent took her decision, a written contract for services between his company and Bay Tree Stratford Limited, a company running a hotel. The judge, however, found as a fact that the appellant had not proved on balance that he had sent the contract to the respondent, as claimed. That is a finding of fact, which the First-tier Tribunal judge was plainly entitled to reach on the evidence before him. It has not begun to be shown that his decision was irrational or otherwise unlawful. Indeed, Mr Spurling, quite correctly, did not seek to persuade me otherwise.
5. Instead, Mr Spurling put the appellant’s case on the alternative basis that, even accepting that the relevant contract was not submitted at the date of the application, the respondent had an extant policy to seek that document from the appellant, by contacting him after receipt of the application. Mr Spurling founded this submission on the determination of the Upper Tribunal in Rodriguez (flexibility policy) [2013] UKUT 00042 (IAC). In particular, Mr Spurling relied upon the passages of the determination in that case, which dealt with the letter from the UKBA of 19 May 2011, set out at Appendix A to the Tribunal’s determination. In that case, the Upper Tribunal held that, unless and until the respondent demonstrated that the letter had ceased to have effect, the result of the letter was to give every applicant under the points-based rules a right to be “contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected” (last paragraph of the letter).
6. At [44] of the determination in the present case, the First-tier judge referred specifically to Rodriguez. Having done so, the judge said:-
“The appellant was clearly aware of the need to supply one or more contracts for work to demonstrate trading when he lodged his application as he indicated in his application form that no contracts were supplied (G23). According[ly] the respondent was under no obligation to contact the appellant about this deficiency. His contract with Bay Hotel Stratford Limited post-dates his application by many weeks.”
7. I have to say that I have very considerable doubt whether the quoted wording from the letter of 19 May 2011 is properly to be interpreted as constituting a policy whereby every points-based applicant would be contacted where any mandatory evidence was missing, whatever the circumstances. But, even if that were correct, any such policy did not, I find, survive the coming into force of paragraph 245AA. That paragraph was inserted in the Immigration Rules with effect from 6 September 2012 and certain further amendments were made to it, so as to place it in the form I have quoted, with effect from 13 December 2012. Indeed, paragraph 245AA was inserted with effect from 6 September 2012 (according to HC 565), eleven days before the appellant made his application as an Entrepreneur Migrant.
8. I find that it is impossible to conclude that, even reading the letter of 19 May 2011 in the sense contended for in Rodriguez, any policy of contacting all applicants whenever mandatory evidence was missing ceased on the coming into force of paragraph 245AA. That policy is entirely incompatible with the subsequent adoption of the new Immigration Rule. If the policy were still in force, then paragraph 245AA would have no rationale and its endorsement by Parliament would have been irrational.
9. Mr Spurling did not seek to persuade me that the appellant could succeed, either by reference to the evidential flexibility policy of June 2011, set out as Appendix B to the determination in Rodriguez, or under paragraph 245AA. Accordingly, the only arguable basis for impugning the determination of the First-tier Tribunal judge, upon analysis, dissolves.

Decision
The determination of the First-tier Tribunal does not contain an error of law, such as to make it liable to be set aside. The appellant’s appeal is accordingly dismissed.

Signed Date

Upper Tribunal Judge Peter Lane