Tribunal decisions

The decision

IAC-FH-ar-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09121/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 June 2015
On 13 October 2015

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

PRONOY barua
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Miss A. Everett, Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant is a citizen of Bangladesh whose date of birth is 1 January 1985. He appealed against the respondent's decision dated 31 January 2014 to refuse to vary his leave to remain to that of a Tier 1 (Entrepreneur) Migrant. He appeals to the Upper Tribunal against the decision of First-tier Tribunal Judge Clarke who dismissed his appeal in a decision promulgated on 24 September 2014.
2. The appellant entered the UK on 6 February 2010 with entry clearance as a Tier 4 (General) Student that was valid until 30 November 2011. On 29 December 2011 he was granted an extension of leave to remain as a Tier 1 (Post-Study Work) Migrant until 29 December 2013. On 28 December 2013 he applied to vary his leave to remain to that of a Tier 1 (Entrepreneur) Migrant. He proposed to enter into an entrepreneurial team with Mr MD Emran Hossain in order to run an IT services company called BE Tech Solutions Ltd.
3. The respondent refused the application in a notice of decision dated 31 January 2014. The Secretary of State noted that the appellant had failed to provide a number of documents that were required in paragraph 41-SD of Appendix A of the immigration rules, which included a recent bank or building society statement. He also failed to provide relevant documentation relating to third party funding. He failed to provide contracts as evidence of trading. He had also failed to provide a Current Appointments Report as evidence to show that he was a director of the company.
4. The Secretary of State also pointed out that other pieces of evidence did not contain the correct information. This included the letter from the Halifax dated 27 December 2013, which did not show the appellant's account number as required and also included a letter relating to Mr Md Emran Husain, also dated 27 December 2013, which the Secretary of State rejected because it did not state that the appellant had access to the funds held in the account as required in the rules.
5. The appellant appealed against the decision of the First-tier Tribunal on the ground that the judge erred in failing to give consideration to the evidential flexibility policy outlined in paragraph 245AA of the immigration rules. The grounds also argued that the judge failed to give adequate consideration to Article 8 because the appellant had established a private life and a business in the UK.
6. On 9 March 2015 Deputy Upper Tribunal Judge Sheridan granted permission to appeal because it was at least arguable that the judge had failed to give consideration to paragraph 245AA although the judge said: "It is far from clear that the appellant's failings would have been saved by paragraph 245AA". In response the respondent submitted that the number of failures in the evidence means that the provisions of paragraph 245AA would not avail the appellant in any event and that there is no error of law in the First-tier Tribunal decision.
7. The matter comes before the Tribunal today to decide whether there is an error of law in the First-tier Tribunal decision.
8. The appellant did not attend the hearing and was unrepresented. The Tribunal was in receipt of a letter from the appellant dated 12 June 2015 in which he said that he was unable to attend the hearing and asked for it to be decided on the papers already before the Tribunal. In light of this correspondence I was satisfied that I could proceed to decide the appeal in the absence of the appellant.

Decision and reasons
9. After having considered the documentary evidence, the grounds of appeal and oral submissions I am satisfied that the First-tier Tribunal decision does not disclose any material errors of law. The fact that the judge did not deal explicitly with paragraph 245AA is a matter that could amount to an error of law but I find that it is not a material error for the following reasons.
10. Paragraph 245AA states the following:
"(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 document;
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.
(d) If the applicant has submitted a specified document:
(i) in the wrong format; or
(ii) that is a copy and not an original document;
the application may be granted exceptionally, provided the UK Border Agency is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The UK Border Agency reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b)."
11. Although the judge did not specifically refer to paragraph 245AA it was quite clear that she took into account the fact that the appellant had failed to provide a number of the documents required in the immigration rules. At the hearing before the First-tier Tribunal it was accepted that the appellant failed to provide some of the documents but it was said that this was an oversight and that some of the other documents were merely in the wrong format. The judge was correct to say that she could only consider documents that were submitted with the application and was unable to consider the further evidence that was produced at the hearing by virtue of section 85A of the Nationality, Immigration and Asylum Act 2002 (as amended at the relevant date).
12. The appellant's grounds of appeal seek to argue that his failure to provide the contract was merely part of a series of documents because he had supplied two invoices relating to trading of the company. The grounds also sought to argue that the omission of the Current Appointment Report was irrelevant because it was a minor document.
13. It is true to say that the First-tier Tribunal judge did not consider the appellant's arguments in relation to paragraph 245AA. However, it is quite clear to me that the provisions of 245AA would not have assisted the appellant in any material way even if the judge had considered those provisions. Paragraph 245AA(c) states quite clearly that the UK Border Agency will not request further documents where it is not anticipated that the omission or error would lead to a grant because the application would be refused for other reasons.
14. In this case, although there were some documents that were arguably in the wrong format, for example, the letters from the Halifax, there were other documents that were clearly missing, which included a recent bank statement, contracts as evidence of trading and the Current Appointments Report to show that the appellant was a director of the company. In such circumstances paragraph 245AA would simply not be engaged because the appellant failed to provide so many fundamental pieces of evidence that were required that it would not lead to a grant of leave to remain. There was no onus on the Secretary of State to contact the appellant when he had simply failed to produce sufficient evidence to support the application.
15. It is the case that applicants may occasionally make errors in an application for leave to remain now that a large number of documents are often required for such applications. However, the onus is still on the applicant to ensure that they have carefully checked the requirements of the immigration rules and have provided the specified evidence. Paragraph 245AA is designed to assist an applicant to rectify very minor errors in the evidence but is not designed to assist an applicant who falls far short of providing the specified evidence required to support the application as in this case.
16. For these reasons I conclude that although the judge did not specifically refer to paragraph 245AA of the immigration rules this did not amount to a material error of law because it would not have made any difference to the outcome of the appeal. Paragraph 245AA would not have assisted the appellant in any event.
17. I find that the grounds relating to Article 8 are unarguable and disclose no error of law. The appellant made nothing more than a bare assertion relating to his private life in the UK. The appellant's witness statement before the First-tier Tribunal did not contain any detail about the ties that he might have established in the UK. He has only been resident for a period of five years and nominal evidence was produced relating to the running of the business in the UK. The appellant has produced wholly insufficient evidence to show that the consequences of removal would be of sufficient gravity to engage the operation of Article 8. For these reasons I find that the First-tier Tribunal decision relating to Article 8 do not disclose any material errors of law.
18. For the reasons given above I conclude that the First-tier Tribunal decision does not involve the making of a material error of law and the decision shall stand.
DECISION
The First-tier Tribunal decision did not involve the making of an error of law
The decision shall stand

Signed Date 01 October 2015

Upper Tribunal Judge Canavan

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09121/2014

THE IMMIGRATION ACTS

Decision & Reasons Promulgated

On 13 October 2015

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

PRONOY BARUA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION TO SET ASIDE
Rule 43 of The Tribunal Procedure (Upper Tribunal) Rules 2008
1. It appears from consideration of the file following an application for permission to appeal to the Court of Appeal that, owing to an administrative error, an uncorrected and unsigned draft of the decision was issued in error. The draft had not been approved by the judge and the purported decision was sent out as a result of a procedural error.
2. The Tribunal is satisfied that it is in the interests of justice that the purported decision is set aside pursuant to rule 43(2)(d) of The Tribunal Procedure (Upper Tribunal) Rules 2008. The final, correct version of the decision is to be promulgated at the same time as this order.
3. The effect of this decision is that by operation of section 13(8)(e) of The Tribunals, Courts and Enforcement act 2007 the earlier decision is an excluded decision for the purposes of section 13 of the Act and there is no right of appeal to the Court of Appeal against a decision which has now been set aside. Therefore the pending application for permission to appeal to the Court of Appeal has no effect.
4. The final and correct version of the decision now promulgated is not an excluded decision and there is a right of appeal to the Court of Appeal against that decision provided that an application for permission is made in time. Time will run from the date of promulgation of the new decision.

Signed Date 01 October 2015

Upper Tribunal Judge Canavan