Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/25434/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 September 2016
On 30 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

ms xuan wu
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr S Kandola, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal from the decision of First-tier Tribunal Judge Aujla promulgated on 24 January 2016. The appellant has represented herself during the course of the appeal and has had a Mandarin interpreter present with her. I should make the primary observation that her English is good and fluent and there were no difficulties in communicating. The appellant is self-evidently an intelligent woman, well able to understand immigration process and procedures, and she has undertaken a considerable amount of legal research in order to present her case in an articulate and thorough manner.
2. The immigration history dates from a period when she had various student and post-study work visas. However, the particular issue with which I am concerned is an application for leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant made under the points based system. That application was refused for the reasons appearing in a Home Office refusal letter dated 10 June 2014. Removal directions have been made the implementation of which is stayed pending the resolution of this appeal.
3. When the matter first came before the First-tier Tribunal, the hearing was adjourned because the appellant stated she needed a Mandarin interpreter, she was confused about the law, had not brought documents with her, and she needed legal advice. At the adjourned hearing the appellant stated that she was not a travel agent (as the respondent had determined her occupation to be) and that in order to explain that she wished to adduce evidence from a witness, possibly an expert witness, who was unable to attend on that occasion. At the appellant's request there was a second adjournment.
4. When the matter next came before the First-tier Tribunal, an interpreter was present and there were various loose and unpaginated documents before the Tribunal which the judge marked as AB1, AB2 and AB3. The judge records the following at paragraph 12:
"Although the appellant had submitted numerous loose and unpaginated documents, there was no witness statement from her or from any witness who she proposed to call. She stated that there was no witness to give evidence."
The appellant choose not to give evidence herself although she asserted before me that she felt in some way coerced by the judge into so doing. There is nothing in the judgment that hints of coercion. On the contrary it strikes me as indicative of scrupulous fairness with an experienced judge providing every possible accommodation for a litigant in person.
5. The decision of the First-tier Tribunal examines the points-based system relevant for a Tier 1 (Entrepreneur) Migrant and makes specific findings in relation to the appellant's occupation. In paragraph 28 the judge says as follows:
"The Appellant had to demonstrate that she was working in an occupation skilled to National Qualification Framework level 4. The contract the Appellant provided was clearly headed 'Ticketing Services Contract' and the substance of the document clearly stated that it was a travel agency undertaking."
The judge consequently concluded in accordance with the codes provided that the appellant's work was in respect of a travel agency which was at level 3.
6. In paragraph 29 the judge records attempts by the appellant to argue that her business activity was at level 4. The judge took into account matters contained in a skeleton argument which the appellant had produced but rejected those assertions. The judge was of the view that the nature of the business and the core services which the business provided were those of a travel agency.
7. When granting permission to appeal, Upper Tribunal Judge Kebede indicated that there was arguable merit in the first ground advanced by the appellant in relation to documentation allegedly before the judge which was not referred to. It was suggested that there was material evidence which the judge failed to take into account.
8. In responding to the appeal Mr Kandola stated that under Section 85A of the Nationality, Immigration and Asylum Act 2002, a judge is precluded when determining an appeal from looking at material which was not submitted with the application other than in circumstances where the veracity of that material falls for determination. That provision he indicates, and I accept, was in force when this matter was being determined, the refusal letter being dated 10 June 2014. It was therefore not open to the appellant to adduce additional material whether in one of the numbered bundles or otherwise.
9. The appellant makes the point that although she may not have wished to adduce fresh documentary evidence, it was the oral testimony of her so-called expert witness upon which she had wished to place reliance. The difficulty with this, however, is that the appellant elected not to call that witness notwithstanding that the proceedings had been adjourned expressly so that he could be called to give oral evidence and to explain, if necessary, the nature of the contractual arrangement.
10. The appellant tells me that the letter from Mr David Slocombe dated 17 January 2016 was intended to stand either as a witness statement or as an expert report. It did not comply with the legal requirements for either but, in any event, the appellant choose not to call him. This is clearly evident from the extract at paragraph 12 which I have already recited.
11. It therefore follows that from the manner in which the appellant chose to conduct matters before the First-tier Tribunal, there was nothing before the judge that might have assisted in coming to a conclusion other than that at paragraph 28. I can see no reason for considering this conclusion to have been reached by error of law or misdirection. Making every possible allowance for the fact that the appellant was not legally represented at the time, it was nonetheless a conclusion open to the judge on the material before her.
12. A final matter which has been referred to in the course of oral argument from the appellant is that she now believes herself to have achieved a right of residence through long residency and she seeks to add as part of her appeal the additional ground of this long residence entitlement. She concedes that this point was not raised in the First-tier Tribunal and that it could not have been so raised because at the time of the First-tier Tribunal consideration the qualifying period had not yet been reached.
13. This argument, however, is not open to the appellant. The only power the Upper Tribunal has is to consider whether or not there was an error of law on the part of the First-tier Tribunal. I have concluded that there was no such error. Had I found an error, the decision would have had to have been remade and it is conceivable that long residence may have been raised at that stage but as I have not set aside the decision, it does not arise.

Notice of Decision
The appeal is dismissed.
No anonymity direction is made.

Signed Mark Hill Date 30 September 2016

Deputy Upper Tribunal Judge Hill QC