Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27626/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th October 2017
On 7th December 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mr MD Mostafa Belal
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Walker (Senior Home Office Presenting Officer)
For the Respondent: Mr T Shah (Solicitor)

DECISION AND REASONS ON ERROR OF LAW
1. The appellant's appeal against a decision to refuse his application for leave in the Tier 1 (Entrepreneur) category and to remove him by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act") was allowed by First-tier Tribunal Judge Veloso ("the judge") in a decision promulgated on 12th January 2017.
2. The judge found that the Secretary of State included reasons for finding the appellant not to be a genuine entrepreneur, in the "non-points scoring reasons" part of her decision letter. Under the heading "points scoring", the Secretary of State recorded in the same letter an award of 75 points under Appendix A to the immigration rules ("the rules"), 10 points under Appendix B and 10 points under Appendix C. The judge went on to find, at paragraph 35 of the decision, that the grounds on which the application was refused were not related to the acquisition of points. The judge decided that the appellant was therefore not prevented, under section 85A of the 2002 Act, from relying on new evidence, in other words evidence which was not before the decision maker when the adverse decision was made.
3. The judge heard oral evidence from the appellant and found him to be a credible and reliable witness. His evidence clarified concerns regarding several service agreements, letters from directors having failed to provide the necessary clarification. Her overall conclusion was that the appellant had shown that his business plans were viable and credible, that he had the necessary educational and business experience to fulfil his chosen role as an IT consultant, and that he remained a director of the business and genuinely intended to invest funds as claimed. He did not intend to take employment other than under the terms of paragraph 245DE of the rules. The appeal was allowed on the basis that the relevant requirements of the rules were met.
4. The Secretary of State applied for permission to appeal. She contended that the judge failed to apply guidance given in Ahmed and Another [2014] UKUT 365 and misdirected herself at paragraph 35 of the decision in finding that refusal of the application under the rules in paragraph 245DD was not related to the acquisition of points. Also flawed was her consequential finding that the appellant was able to rely on new evidence which was not before the decision maker. The headnote in Ahmed and Another made it clear that where the rules provide that points will not be awarded if the decision maker is not satisfied as to another (non-points scoring) aspect of the rules, the non-points scoring aspect and the requirement for points are inextricably linked. As a result, the prohibition on new evidence in section 85A(4) of the 2002 Act applies to the non-points scoring aspect of the rule.
5. The judge erred by engaging with evidence which was not before the decision maker, as shown by paragraphs 35 to 37 of the decision. This evidence was wrongly taken into account as part of the judge's assessment of the genuineness of the enterprise.
6. The grounds also contained a submission that the rules provide that points will not be awarded in circumstances where refusal is made under paragraph 245DD(k), where the decision maker is not satisfied as to the non-points scoring aspects of the rule.
7. Permission to appeal was granted by a First-tier Tribunal Judge on 1st August 2017.

Submissions on Error of Law
8. Mr Shah handed up written submissions by way of a response under rule 24. In brief, it was submitted on the appellant's behalf that the judge made no material error of law and that what appeared in paragraph 35 of the decision was immaterial to the reasons for allowing the appeal.
9. Mr Walker said that paragraph 35 of the decision showed that the judge had fallen into error. She found that the grounds of refusal were not related to the acquisition of points. The headnote in Ahmed and Another gave guidance on paragraph 245DD(k) of the rules. There was new evidence before the Tribunal, not before the decision maker, and the judge erred in engaging with it at paragraphs 36 and 37 of the decision.
10. On page 4 of the Secretary of State's decision letter, dated 27th July 2015, was a table which showed that the points awarded matched those claimed for the purposes of Appendices A, B and C to the rules. This was, nonetheless, merely clarification to enable the appellant to see how the decision was reached. The operative part of the decision letter was the second paragraph from the top on the same page, where the Secretary of State made it clear that the application for leave was refused under paragraph 245DD, as the appellant did not meet the requirements of the rules at paragraphs 245DD(h), with reference to paragraph 245DD(i) and paragraph 245DD(a).
11. Mr Shah relied on his written submissions. The key was to assess whether any error on the judge's part was material. The appellant's stance was that any error was plainly not material to the decision. It might be accepted that at paragraph 35 of the decision, the judge summarised the law inaccurately.
12. What was the new evidence which was not before the decision maker? It consisted of four letters from directors of companies. At page 3 of the written submissions it was contended that Ahmed was distinguishable from the present appeal. Moreover, it was clear that there were two types of evidence before the Secretary of State. There was evidence from the appellant, who was interviewed by the decision maker and found to be credible and documentary evidence. The judge recorded the decision maker's favourable assessment of the appellant following the interview. She went on in the decision to say that she had considered written statements. The appellant's witness statement was taken into account by the judge but this could not be properly characterised as new evidence as the contents of the statement were already before the Secretary of State. The appellant was cross-examined and gave answers to questions, which the judge found resolved any difficulties.
13. Paragraph 12 of the written submissions recorded the appellant's case that Ahmed was not intended to exclude oral evidence but only new documentary evidence which was not before the decision maker. In any event, the appellant's oral evidence was the same in substance as what he said in interview before the decision on his application was made.
14. The judge found the appellant to be a credible witness on the basis of oral, and documentary evidence and, contrary to what appeared in the grant of permission to appeal, the judge gave no weight to the four letters from directors, these items being the new evidence. Instead, the judge gave weight to the appellant's oral evidence, including what emerged in interview, and to other supporting documents. This was what the judge referred to when she said that she had considered all the evidence in the round, at paragraph 54 of the decision.
15. Although at the end of the decision, on page 12, in the fee award part, the judge expressly stated that the appeal was allowed following oral evidence and the consideration of documents "including witness statements not before the respondent at the time of her decision", in substance the judge allowed the appeal only on the basis of evidence which was before the decision maker and she gave no weight to the new documentary evidence.
16. The appellant might have been in difficulty if no interview had taken place before the decision was made and if the interviewing officer had not found the appellant to be a credible witness. There was, however, an interview in which the appellant's case emerged. There was nothing in Ahmed and Another which prevented oral evidence from emerging at a hearing. In the fee award part of the decision, the judge might have intended to refer merely to what the appellant said in interview. The case turned on the credibility of the business.
17. Returning to Ahmed and Another, Mr Shah said that nothing in that decision could be read as excluding oral evidence or indeed a witness statement. On the facts in Ahmed and Another, no points were given in the maintenance (funds) category. In that case new documents were before the judge, which justified the award of points. The appellant's case was rather different. The judge did not allow the appeal on the basis of the new evidence, consisting of the letters from the directors. These were found to have no weight. The judge found the appellant to be a credible witness.
18. Mr Walker had nothing to add to his earlier submissions.
Decision on Error of Law
19. I am grateful to the representatives for the succinct way in which they put their respective cases. Notwithstanding Mr Shah's detailed submissions I find that the judge materially erred in law.
20. The decision letter, dated 27th July 2015, begins on the first page with a clear adverse finding based on non-points scoring reasons. The Secretary of State set out there the reasons why she was not satisfied that the appellant genuinely intended and was able to establish his enterprise or that he genuinely intended to invest the funds referred to in Table 4 of Appendix A. She was also not satisfied that the funds were genuinely available and would remain available until spent on the business. On the fourth page of the decision letter, there is a clear finding that the requirements of the rules were not met in this regard and so the application fell to be refused under paragraph 245DD of the rules.
21. The next part of the decision letter deals with "points scoring" and the appellant was awarded all the points in the attributes, English language and maintenance (funds) categories. That might appear odd but the decision under appeal in Ahmed and Another [2014] UKUT 365 shared this feature (save that whereas the appellant succeeded in all the categories, the appellants in Ahmed and Another did not succeed in the attributes category).
22. It is clear from Ahmed and Another that the prohibition on new evidence in section 85A(4) of the 2002 Act applies to the non-points scoring aspect of the rule, the purpose of that provision being, as the Upper Tribunal held, to ensure that where a points-based application is made and refused, the assessment by the judge is to be of the material that was before the decision maker rather than a new consideration of new material.
23. Turning to the decision giving rise to the present appeal, the critical question is this: did the judge consider and take into account new material? The clear answer is "yes". Paragraph 35 of the decision includes a finding that the grounds for refusal of the application were not related to the acquisition of points. This self direction cannot be reconciled with the guidance given in Ahmed but, if it were clear that the assessment by the judge proceeded only on the basis of what was before the decision maker, the error might not be material. The difficulty is that in the paragraphs which follow, it is apparent that new evidence was considered and taken into account.
24. Mr Shah emphasised that the new evidence consisted of four letters provided by directors of companies. At paragraph 30 of the decision, the judge stated that she had taken all the documents before her into account. Plainly, that included the four letters. Paragraph 42 referred to the same items, which were described as supporting the appellant's case. Paragraphs 42 and 43 refer in some detail to the letters. The judge's assessment was that the appellant's claim was supported by three of the four letters provided. At paragraph 49, the judge noted that the authors of the letters did not attend and so they were not questioned on the contents of their letters. At paragraph 54, the judge referred to all the evidence in the round, including the oral and documentary evidence and her detailed comments on that evidence, all showing that the appellant was a credible witness. Some concerns remained about the service agreements, which the judge assessed as having not been "answered by the four directors' letters", although the concerns were "clarified by the appellant in considerable detail in his witness statement and in part by the supporting documents".
25. In the last part of the decision, where the judge explains why she decided not to make a fee award, having allowed the appeal, there is the following:
"The appeal was allowed following detailed oral evidence and the consideration of a number of documents including witness statements not before the respondent at the time of her decision."
26. I am unable to accept Mr Shah's submission that the judge gave sustainable reasons for allowing the appeal which were unrelated to the new evidence before her. The decision cannot be read as showing that the judge concluded that the appeal should be allowed only on the basis of the evidence which was before the decision-maker. Even though the overall conclusion is clear in itself, it is plain that in reaching it, the judge took into account and assessed evidence which should not have been considered by the Tribunal in the light of section 85A(4) of the 2002 Act.
27. The decision has been carefully prepared but, for the reasons set out above, I conclude that it contains a material error of law. As was the case in Ahmed and Another, it is impossible to say what conclusion the judge would have reached if she had not taken into account evidence which she was not entitled to hear.
28. The decision must be set aside and remade. In view of the extent of the fact-finding required, the appropriate venue is the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal is set aside. It will be remade in the First-tier Tribunal, before a judge other than First-tier Tribunal Judge Veloso.

Signed Date

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY
The judge made no anonymity order or direction and none has been sought. I make no order or direction on this occasion.

Signed Date

Deputy Upper Tribunal Judge RC Campbell