Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA 21548 2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 11 April 2014
On 23 April 2014

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SADIAT AJIKE FASOLA
Respondent
Representation:
For the Appellant: Mr G Jack, Senior Home Office Presenting Officer
For the Respondent: Mr C Igezie Solicitor from Curling Moore Solicitors
DETERMINATION AND REASONS
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing an appeal by a citizen of Nigeria, hereinafter "the claimant", against a decision of the Secretary of State to refuse her leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant under the points-based system.
2. For reasons that I shall explain, I have no hesitation in saying that the First-tier Tribunal materially erred in law. I set aside the decision of the First-tier Tribunal and I remake the decision dismissing the claimant's appeal against the Secretary of State's decision.
3. The points-based system represented a sea-change in immigration law in the United Kingdom. The Rules are extremely prescriptive, allowing very little discretion and in many cases requiring documents or other kinds of evidence to be produced when the application is made.
4. Frequently appeals are little to do with what might be thought to be the inherent merits of the application, such as a person's means or suitability, but are entirely technical and relate to whether or not certain things were produced or proved in a particular way at a particular time as prescribed by the rules. We are not going to make any progress in our consideration of these appeals unless all of us who deal with them, applicants, practitioners and judiciary, move away from ideas learned over many years where we were concerned about a person's ability to comply with the Rules when the appeal was heard and look instead at what we are required to look at, which is whether or not the very strict prescriptive requirements of the Rules were met.
5. The determination, on the face of it, is astonishingly short. With the considerable assistance of representatives for both parties, it has taken me most of the morning to get to the position I am in now and whilst First-tier Tribunal Judges might have more experience in this kind of work I fear that until we are all very familiar with the Rules, assuming that they remain in force in their present form for long enough for that familiarity to develop, cases under these Rules are going to be tedious and time consuming.
6. It is unclear exactly what the First-tier Tribunal decided. The key paragraph is paragraph 7 which states:
"After careful consideration of the evidence and the submissions made by both representatives I am of the view that the appellant provided substantially the required documents which he is obliged to provide to satisfy the Rules. The Tribunal accepts the submission that?"
7. It is hard to see why an appellant who provided documents substantially required can be thought to have satisfied the requirements of the Rules where all of them have to be satisfied. This paragraph is criticised on the basis that the meaning was obscure and I have to say that criticism is well-founded. I do not know from reading the determination exactly what the First-tier Tribunal Judge decided except that he decided to allow the appeal. The reasoning is not sufficient reasoning.
8. Reference is made to "evidential flexibility" but is not explained and I cannot ascertain why that might be thought to be relevant in this context. I have to say that the First-tier Tribunal Judge did not identify and grapple with the issues raised and the decision to allow the appeal is not explained adequately.
9. I remind myself that from the perspective of the claimant, who thought that she had won her appeal, it is particularly upsetting for me to set aside that decision and replace it with another decision and I should only do that if I am quite satisfied that the First-tier Tribunal Judge's decision is defective. But it is defective. It is not clear what was decided, still less why it was decided, and I cannot uphold it.
10. Mr Igezie, for the claimant, did not spend much time trying to persuade me that the determination was entirely satisfactory. Rather he said that there were no material errors. The way he put his case is quite simple. He said that the claimant produced all the documents she was required to produce and the Secretary of State either lost them or did not look at them and the Secretary of State wrongly relied only on documents produced at a subsequent interview and made mistakes because the Secretary of State had not looked at the right things. This is a highly cogent argument capable of being right but it is not right for reasons I will explain. In short the documents that were relied on by the claimant did not meet the requirements of the rules. It follows that nothing useful would be served by deciding what else may have been produced. Obviously I would have resolved this issues if it could have made a difference. It may well be that the claimant did provided better documentation with the application and supplemented them with inadequate documentation at her interview and that the inadequate documentation has been considered and the better documentation ignored. However I have not seen any evidence that the claimant ever produced ALL of the documentation that was required of her.
11. The determination of the First-tier Tribunal record that there was no cross-examination by the respondent about the documents. This is not an admission that the documents were genuine or adequate in any way. It is merely a record that there was no cross-examination by the respondent. A possible explanation for that is the respondent did not want to give the claimant an opportunity to repair any damage. I suspect that is being overly sophisticated and in reality there was nothing about which cross-examination was appropriate. The documents were to be considered for what they were and what they showed.
12. The reasons for refusal letter dated 20 May 2013 is in a standard form and puts in boxes the number of points claimed and the number of points awarded.
13. The first is titled "Appendix A - Attributes" and requires evidence about funds to be proved in a particular way. This is a case where the appellant was relying on third party funds. The Rules provide for that and they require confirmatory documents from a legal representative. The particular part of the Rules is set out in paragraph 41-SD(d)(ii) of Appendix A to HC 395. Sub-paragraph (ii) is in the following terms:
"A letter from the legal representative confirming the validity of signatures on each third party declaration provided, which confirms that the declaration(s) from the third party/parties contains the signatures of the people stated. It can be a single letter covering all third party permissions, or several letters from several legal representatives. It must be an original letter and not a copy, and it must be from the legal representative permitted to practise in the country where the third party or money is. The letter must clearly show the following:
(i)-
(ii)-
(iii)-
(iv) The applicant's name (and the name of the applicant's team partner if the applicant is applying under the provisions of paragraph 52 of this Appendix).-"
14. Mr Jack says, and I find that he is right, that although one or more letters can be relied upon, every letter that is relied upon must meet these requirements and it must show the applicant's name.
15. There were letters relied on in the bundle but they did not show the applicant's name. There was a letter at page 36 in the appellant's bundle and another at page 38 in the appellant's bundle from solicitors; in one case a firm practising in the Broadway in Rainham in Essex and in another case a firm in Lagos that identified the signature but did not identify the claimant. Not only is this a requirement of the Rules, it is obviously a matter of very considerable importance because it is a convenient way of showing that the attestation relates to the right document. In these two cases the Rules were not met.
16. In a sense that is sufficient to deal with the application under the Rules but there is more to be said. It is a further requirement of the Rules that the applicant produces certain evidence of her trading activities. Again, it is prescribed, this time at paragraph 41-SD(c)(iii) of the Appendix. The specified documents are in the alternative. Three of them relate to advertising material, trade information from a trade fair, or newspaper article showing both the applicant's name and the business activity. The evidence relied on by the claimant does not. Her name is shown but her business activity is not.
17. There is a fourth way of complying with this Rule and that is the certificate showing personal registration with a trades body linked to the applicant's occupation. This the applicant tried to do and referred to a document allegedly from a trade body at page 58 of the bundle which showed the appellant's membership of the Academy of Pharmaceutical Sciences. I know nothing about the Academy of Pharmaceutical Sciences. It may be this is just because I am ignorant about something which is well known to the appellant but the burden of proof is on her and there is nothing before me to show that this is indeed an organisation properly described as a trade body in accordance with the Rules. It follows that in my judgment this part of the Rules was not satisfied either.
18. In respect of the defective documents, Mr Igezie sought to rely on part 6A of the Immigration Rules at paragraph 245AA and particularly 245AA(d). This does not assist him at all. Firstly, I am not satisfied that it is a Rule in force at the relevant time. Nobody produced the commencement dates. Mr Jack's view is that it was not in force at the time. I think Mr Jack is right but even if it was in force it does not help because it is not a general power to decision makers but it is a power granted to named people, that is an Entry Clearance Officer, an Immigration Officer, or the Secretary of State and it is an enabling provision which in certain circumstances permits a particular decision maker (not a judge) to allow an application that would otherwise have to be refused. Unless it is a power that is in someway governed by policy, and this has not been suggested, then I see no basis on which an appellant before the Tribunal can complain that the decision has not been given exceptionally on this basis. Certainly there is nothing here which assists the claimant before me addressing the deficiencies in the documents that she has produced.
19. Other deficiencies alleged related to funds held in regulated financial institutions and funds disposable in the United Kingdom but no findings were made about that and I see no reason why they should be. They were not made because the claimant could not satisfy an earlier part of the Rules.
20. It is also said that the claimant had not provide a statement from Lloyds Bank in the prescribed form. Again, this, I think, has to be right. Documents I have seen in the bundle were original documents but they were produced from the internet. They were not stamped and it is a requirement that they were.
21. All of these Rules had to be satisfied. None of them were.
22. It follows therefore that the appellant has not proved to the balance of probabilities that she produced the required documents in the required way at the required time and therefore her appeal against the present appellant's decision has to be dismissed.
23. I acknowledge receipt rather belatedly of a skeleton argument from the respondent. I was able to read it briefly. I do not think it raised any point that had not been raised in argument before me and Mr Igezie certainly presented his case firmly and determinedly.
24. I am aware that this is an unhappy outcome in a way that must frustrate the claimant but the Rules have to be applied I have no alternative but to make the decision that I have.
25. For the sake of completeness, I record that human rights were not raised or argued before me. There is nothing in the case to suggest that that would have been anything other than a time wasting exercise and Mr Igezie is to be commended for not taking that course.
26. It follows therefore that I have no alternative but to make the decision I have and I summarise it again. I find the First-tier Tribunal erred in law. I set aside the decision of the First-tier Tribunal and I substitute a decision dismissing the claimant's appeal against the Secretary of State's decision.
27. I also want to make it plain that I have not made any findings about what was actually produced. I do not see we can ever get to the bottom of that. On the evidence before me, if it had been a worthwhile exercise, in the sense that if all the documents could have been proved that the appeal could have been allowed I might have had to deal with this matter differently, but that is not the case.

Decision
The First-tier Tribunal erred in law. I set aside the decision of the First-tier Tribunal and substitute a decision dismissing the claimant's appeal against the Secretary of State's decision.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 17 April 2014