IA/12505/2013

• Status of case: Unreported
• Hearing date: 27 Mar 2017
• Promulgation date: 28 Mar 2017
• Publication date: 21 Mar 2022
• Last updated on: 21 Mar 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12505/2013


THE IMMIGRATION ACTS


Heard at Stoke
Decision & Reasons Promulgated
On 27th March 2017
On 28th March 2017


Before

UPPER TRIBUNAL JUDGE HANSON


Between

ZAHEER SHAH
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: no attendance – written submissions made.
For the Respondent: Mr C Bates Senior Home Office Presenting Officer


DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Tully promulgated on 17 September 2013 in which the Judge allowed the appellant’s appeal under the Immigration Rules against the refusal of the appellant’s application for further leave to remain as a Tier 4 (General) Student Migrant under the Points-Based Scheme and direction for the appellant’s removal from the United Kingdom pursuant to section 47 of the Immigration Nationality and Asylum Act 2006.
2. The Judge sets out findings of fact at [11 – 20] of the decision under challenge in relation to the appeal under the Rules. The Judge deals with two issues, the first relating to the appellant’s bank statements. The appellant was required under the Rules to show that he had £1600 available for a consecutive period of 28 days up to the date of the application. Bank statements were provided but not on headed paper showing the bank’s logo and did not show the name of the account holder and were therefore not in compliance with the requirement for mandatory information set out in paragraph 1B of Appendix C of the Rules. The appellant’s case was that in the interests of fairness the respondent should have written to the appellant before refusing the application.
3. The Judge relied upon the decision of the Upper Tribunal in Rodriguez (Flexible Policy) [2013] UKUT 00042 (IAC) and at [16 – 17] wrote:

16. This is clearly a case where the appellant has met the financial requirements of the PBS scheme save for the mandatory document, which is not in the prescribed form. There is no evidence before me that suggests that the respondent followed its own policy on this when faced with issue. In view of the policy outlined above the respondent ought reasonably to have written to the appellant and giving him the opportunity to produce the full bank statement. The respondent does not say that he wrote to the appellant and that the appellant failed to respond and Mr Malcolm could not assist further on this point. On the balance of probabilities I find that the respondent failed to apply her policy and did not write to the appellant. In line with the case law regarding evidential flexibility I find that the respondent has not complied with its obligations to observe the requirements of a procedurally fair decision making process.

17. The appellant would clearly have been able to produce the document in question, as he has done now. I find respondent’s decision to award no points for funds was not made in accordance with the law.

4. The second issue the Judge considered was that relating to the English-language certificate. The respondent maintained that the appellant must show that he had a knowledge of English equivalent to B2 of the CEFR in all four components of reading, writing, speaking and listening. As the appellant, did not meet any of the exemptions he was required to produce an original English language test certificate from an approved provider as specified in Appendix O, which the respondent says he did not.
5. It was not disputed before the Judge that the appellant did not produce the test certificate with the application. The grounds of appeal assert the appellant told the respondent when making the application that he had taken a test and that the certificate would be forwarded when available. A test certificate produced at the appeal hearing showed that the test that the appellant eventually passed was taken on 27 July 2013. The Judge found that had the appellant been contacted as per the evidential flexibility policy and been unable to produce the certificate before the decision was reached, as seems likely in the circumstances, the decision of the tribunal might be different, but the Judge states that in light of the finding that the decision was not reached in a way that was procedurally fair and cannot stand as the respondent failed to apply her policy and did not write to the appellant in relation to the missing certificate, what may have happened had the appellant been contacted was not found to be material. The Judge also found based on the evidential flexibility policy, as it applied to the English-language certificate, that the decision was not in accordance with the law.
6. At [21] the Judge found the decision to remove was not in accordance with the law by reference to the decision of the Upper Tribunal in Adamally and Jaferi [2012] UKUT 00414. There is no challenge to this aspect of the First-tier decision meaning a lawful removal decision is still awaited.
7. Permission to appeal was granted by another judge of the First-tier Tribunal on the basis that the challenge in relation to the English language test was arguable such as to warrant a grant of permission to appeal.

Error of law

8. The policy for applications under the points based system was incorporated into the Rules at paragraph 245AA on 6 September 2012.
9. A ‘specified’ document which is in the wrong format (e.g. a letter is not on headed notepaper, as specified), or is a copy rather than the original, or does not contain all the specified information, can trigger a request for the correct version of the document. A ‘missing’ document can only be requested if it is one of a sequence, e.g. one bank statement from a series has been omitted, but not if it is the sole “specified” document. Thus, if an English language certificate should have accompanied the application but did not, the caseworker will not contact the applicant to request it. In other words, the applicant will not be given an opportunity to take an English language test if he has not already passed it.
10. In Mandalia [2015] UKSC 59 Mr Mandalia's application was made on 7 February 2012. It was said that it was "agreed that the process instruction represented agency policy which in principle applied to it. It should be noted, however, that, in respect of all applications made on or after 6 September 2012, the process instruction was withdrawn and the facility for a caseworker to seek further information or evidence prior to determining an application was instead governed by a new rule, namely rule 245AA, inserted into the rules. The new rule, which was amended with effect from 13 December 2012 and re-amended with effect from 1 October 2013, seems to give caseworkers substantially less flexibility than did the process instruction. But the encouragement to contact an applicant survives if "[s]ome of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing)". This case is of narrow application, particularly as the provision in question has since been amended.
11. At the date of the decision paragraph 245AA stated:

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 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, providing 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).

12. The bank statements were clearly in the wrong format. In R(on the application of Patel) v SSHD 2014 EWHC 1861 it was held that the purposes of paragraph 245 AA of the Immigration Rules that the word format in the phrase went in the wrong format" did not extend to mean the information contained within the document. Format meant the way in which something was arranged or set out and the appropriate question was whether the balance certificate was simply in the wrong format but nevertheless confirmed that the availability of funds. Where the balance certificate did not include the information required by the rules, and proof that the necessary funds were held for a 28-day period, the certificate failed to meet the requirements as a matter of content not format.
13. It is arguable that the finding of the Judge that the Secretary of State failed to follow her own policy in not writing to the appellant to seek bank statements in the correct format in accordance with the policy which reflects the wording of 245 AA(b)(ii) is arguably correct, but must be considered subject to 245AA(c).
14. The English language test is a different issue, as the appellant himself accepted that did not have the test certificate at the relevant date and indeed did not take the test until 27 July 2013 two and a half months after the date of the decision under appeal.
15. The Judge has erred in law in failing to consider the provisions of the rule and respondent’s policy set out in 245 AA (c) which provides:

(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.

16. The English language certificate had not been submitted with the application as it did not exist at that time. There is no legal obligation upon the Secretary of State to request a document that had not been submitted and which was missing. The Judge also erred in relation to the bank statements, in finding the respondent had been in breach of policy, for the above provision makes it clear that there is no obligation on the Secretary of State to request a specific specified document if it is not anticipated that addressing the omission or error referred to will lead to a grant, because the application will be refused for other reasons. The failure to provide the English language certificate was, on its own, sufficient to warrant the appeal be dismissed.
17. The case relied upon by the Judge, that of Rodrigues, has been overturned by a subsequent decision of the Supreme Court, but even based upon the respondents published policy and relevant immigration rule the decision of the Judge is infected by legal error material to the decision to allow the appeal under the Rules. The written submissions received from the appellant’s representatives did not specifically address this requirement of the Rules.
18. That aspect of the decision is therefore set aside and the decision remade dismissing the appeal under the Immigration Rules.
19. As stated the finding in relation to the removal decision is not challenged and has not been shown to be a decision infected by arguable legal error. This part of the decision shall therefore stand.

Decision

20. The First-tier Tribunal Judge materially erred in law in relation to the appeal being allowed under the Immigration Rules. I set aside the decision of the original Judge so far as it relates to the Immigration Rules. I remake that aspect of the decision as follows. This appeal is dismissed.
21. The finding by the Judge that the decision to remove was not in accordance with the law is not challenged by the Secretary of State and shall therefore stand to the extent that the appeal was allowed on that basis. The appellant therefore still awaits a lawful direction for his removal from the United Kingdom.

Anonymity.

22. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.


Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 27 March 2017