Tribunal decisions

The decision

IAC-HX-GM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12981/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 12 December 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE PINKERTON

Between

MR MOHAMMAD OMAR FARQUE
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Md M Islam
For the Respondent: Mr E Tufan

DETERMINATION AND REASONS
1. The appellant is a citizen of Bangladesh who applied for leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant under the points-based system. His application was refused and he appealed. The appeal was heard by First-tier Tribunal Judge Napthine who dismissed the appeal in a determination promulgated on 24 September 2013.
2. In granting permission to appeal that decision, on a renewed application, Upper Tribunal judge Grubb noted that the appellant relied upon a declaration of funds available from a third party overseas. Those funds were not taken into account by the respondent because of the appellant’s failure to prove a letter (in the appropriate form) from an overseas legal representative “attesting” the declaration. In dismissing the appeal Judge Napthine rejected the argument that the respondent’s decision was unfair as the respondent had not applied her “flexibility” policy and requested the missing document. Judge Grubb found that the appeal raises an important arguable point as to whether the “flexibility” policy continues to apply after paragraph 245AA came into force on 6th September 2012. He states that the point was left open in Rodriguez (Flexibility policy) [2013] UKUT 00042 (IAC). If the flexibility policy applies it is arguable that the respondent acted unfairly in not requesting the document but if it does not then the terms of paragraph 245AA may not apply to a missing document which is not part of a sequence.
3. The respondent filed a Rule 24 response opposing the appellant’s appeal. It is submitted that paragraph 245AA of the Rules does not apply to the document in question, which was a letter from an overseas legal representative attesting the declaration of funds available from a third party overseas. The evidential flexibility policy did not apply. Caseworkers applying that (Policy) were not required to make speculative requests for new information, as arguably this would have been. The caseworker could not have been expected to know that the document in question existed on the basis of the application that was made.
4. Before me it became evident that I would not need to decide the point that Upper Tribunal Judge Grubb had raised. I do not need to do so because of the following matters.
5. The appellant made his application for leave to remain on 25 October 2012. Following refusal of that application his appeal was heard on 9 September 2013. At that hearing the appellant was represented by Mr Islam who appeared before me in the Upper Tribunal. He pointed to the fact that a bundle of documents was lodged with the First-tier Tribunal on 5 September 2013, i.e. prior to the hearing, and that he had referred to that bundle when addressing the judge at the hearing.
6. I have checked in the file and it is clear that the appellant’s bundle was lodged a few days before the hearing although there appears to be no specific reference to it in the judge’s determination. At paragraph 4 the judge says to the effect that he has the respondent’s bundle containing the application, the refusal notice with explanatory paragraphs and the appeal statement and goes on to say “also enclosed are documents that accompanied the application and those which accompanied the appeal” so it is not clear exactly what was before the judge. Be that as it may I have no reason to doubt what Mr Islam on behalf of the appellant said to me, namely that he specifically addressed the judge on a letter that was sent to the appellant which is dated 15 March 2013. In that letter the respondent refers to the application and says that on 30 January 2013 the government announced changes to the Immigration Rules to take effect from 31 January 2013. Those changes were made in response to evidence that some applicants were seeking to abuse the Immigration Rules. There is then reference to the changes which would include applications submitted prior to 31 January.
7. There is then the important paragraph which states at its beginning:-
“The UK Border Agency will contact you in the coming weeks to advise you how these changes will affect your application and what steps (if any) you will need to take before we make a decision on your application.”
There is then an apology for any inconvenience that would be caused by the delay in issuing a decision on the application.
8. However, despite that letter having been written on 15th March the refusal of the application was sent on 9 April 2013. There is no suggestion that the respondent did what was said would be done in the letter of 15 March 2013. The appellant heard nothing between receipt of that letter and the refusal of the application of 9 April 2013. That I find to be conspicuously unfair to the appellant.
9. What I also find to be most surprising, however, is that the grounds of appeal do not specifically refer to that letter and it does not appear from the Record of Proceedings to have been referred to directly in the evidence that was taken by the First-tier Judge. If he had done so he could not possibly have found that the respondent had acted fairly or more properly the judge should have found that the respondent had not acted in accordance with the law.
Decision
10. I announced my decision at the hearing that the decision of the judge would not be upheld for the above reasons and it is set aside.
11. As to the disposal of the appeal thereafter, Mr Islam said that his client had been waiting for more than a year already and urged me to make a fresh decision. However, after considering that request I declined on the basis that the application should go back to the respondent because the original decision that was made was not in accordance with the law and is still outstanding before her and this is for the reasons explained above.
12. Accordingly the application remains before the respondent to remake the decision in accordance with the law.
13. No application for anonymity was made and in all the circumstances it has not been demonstrated that such a direction is required in this determination.

Signed Date

Upper Tribunal Judge Pinkerton