The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/15793/2013


Heard at Field House
Determination Promulgated
On 22 November 2013
On 27 November 2013
Prepared 22 November 2013




mohammed feruje
shamima sultana
shabib feruje



For the Appellants: Mr P Turner, Counsel
For the Respondent: Mr T Wilding, Home Office Presenting Officer


1. The appellants, who were born respectively on 1 December 1980, 13 June 1982 and 10 March 2001 are citizens of Bangladesh. The second appellant is the wife of the first appellant and the third appellant is their minor son.
2. The first appellant arrived in this country on 2 October 2004 and was granted leave to remain as a student until 31 October 2006. Thereafter he was granted various extensions of leave to remain, most recently on 5 February 2011 when he was granted leave to remain as a Tier 1 (Post-Study Work) Migrant until 5 February 2013.
3. On 30 January 2013, the first appellant made an application for leave to remain as a Tier 1 (Entrepreneur) Migrant. The second and third appellants made applications to remain as his dependants.
4. The first appellant's application was refused on 22 April 2013, and the application of the other appellants was also refused then. At question 23 of the application form, the first appellant had been asked to say whether or not one or more contracts had been supplied or no contracts had been supplied, and he ticked the box saying "yes, one or more contracts had been supplied". In fact, by mistake, the first appellant had not supplied any contracts with his application, because he made a mistake.
5. When refusing the application, the respondent's caseworker gave as a reason that the first appellant had not provided contracts detailing the services that his business offered and that "as you 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". The refusal letter continues by stating that, "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".
6. The appellants appealed against this decision and their appeals were heard before First-tier Tribunal Judge Pacey, sitting at Hatton Cross on 5 August 2013. However, in a determination promulgated on 15 August 2013, Judge Pacey dismissed the appeals, stating at paragraph 17 that "the evidential flexibility policy does not apply here since this does not require UKBA actively to seek to fill gaps in the evidence provided by a claimant".
7. The appellants now appeal before me, permission having been granted by Upper Tribunal Judge McGeachy on 2 October 2013.
8. Before me, on behalf of the respondent, Mr Wilding accepted that there was an error of law in Judge Pacey's determination regarding the manner in which she had dealt with the question of evidential flexibility. It was accepted by the respondent, as set out in the grounds of appeal, that in fact the appellant had ticked the box saying "contracts are included". That was contrary to what was said in the refusal letter. The basis upon which the refusal was made was that the first appellant had said that no contracts had been included with his application. That was simply wrong.
9. Because the first appellant had ticked the box saying that contracts were included, the decision maker should have noticed that this box had been ticked and accordingly, pursuant to paragraph 245AA of the Rules, he should have turned his mind to whether or not though contracts had been included, and because they had not he should have contacted the appellant to give him the opportunity of correcting this mistake.
10. As this error by the decision maker had been the central thrust of the refusal letter, and the reasons for refusal, Judge Pacey should have found that the decision maker should indeed have contacted the appellant, and it was a material error of law for her not so to find.
11. I agree with Mr Wilding, for the reasons which he gave, that Judge Pacey's determination did contain a material error of law, and that the decision must now be re-made.
12. Both parties being agreed that the appropriate course was for this Tribunal to find simply that the decision was not in accordance with the law, I will so find.
I set aside the determination of the First-tier Tribunal as containing a material error of law, and substitute the following decision:
This appeal is allowed to the extent that the respondent's decision being appealed against was not in accordance with the law.

Signed: Dated: 22 November 2013

Upper Tribunal Judge Craig