Tribunal decisions

The decision

Upper Tribunal Appeal Number: IA/35877/2014
(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision promulgated
on 13 March 2017
on 18 April 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SHARANDEEP KAUR DHINGRA
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Kullan of SH Solicitors
For the Respondent: Ms Aboni Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Parkes (‘the Judge’) promulgated on 22 December 2014 in which the Judge dismissed the appellant’s appeal against the refusal of her application for leave to remain in the UK as a Tier 4 (General) Student Migrant under the points-based system. The respondent refused the application on the basis the nature of the courses undertaken and proposed by the appellant would exceed the maximum permitted period under the Immigration Rules for study below degree level. Evidence provided by the appellant by way of a letter from Walsall College was ruled inadmissible by the Judge pursuant to section 85A of the Nationality, Immigration and Asylum Act 2002.

Error of Law

2. The maximum period permitted under the Immigration Rules for study below degree level is three years, which equates to 1095 days.
3. The Judge found, based on the evidence before the decision maker, that the applicants previous period of study below degree level on a BTEC Extended Diploma in Health and Social Care at NQF Level 3 at Walsall College, due to start on 20 February 2012 and run to 28 February 2014, was a period of 740 days. The application leading to the refusal was to enable the appellant to study on a BTEC Level 5 HND Diploma in Health and Social Care at NQF Level 5. The course was to start on 24 July 2014 and was expected to be completed on 24 July 2015, a total of 366 days.
4. The respondent’s position is that 740 days when added to the 366 days’ totals 1106 days, which is more than the permitted three-year period of study by some 11 days. The letter the Judge refused to admit from Walsall College advised the Tribunal that although the anticipated date of completion of the course was 28 February 2014 the course was in fact completed on 14 February 2014, a total period of study of 726 days. When this period is added to the 366-day duration of the proposed course the total time appellant would be engaged in study is 1092 days which is 3 days less than the maximum permitted period of study below degree level.
5. The Judge noted that the case is governed by paragraph 245ZX of the Immigration Rules and at paragraph 6 of the decision notes that the effect of section 85A is to prevent the consideration of evidence not submitted with an application. The Judge, at paragraph 8, noted the evidence from Walsall College was submitted with the grounds of appeal but found that this is excluded from consideration by the effect of section 85A.
6. The Judge refers to the first period of study undertaken by the appellant from 27 September 2010 on a BSc (Hons) Business and Management course but this was degree level study which the appellant did not complete. It was accepted this lasted for a period of 365 days.
7. It is important to note the terms of the refusal of the 1 September 2014 which allocated to the appellant the 30 points claimed in relation to Attributes – Confirmation of Acceptance of Studies and the 10 points claimed in relation to Maintenance (Funds). The application was therefore not refused based on a point scoring issue.
8. Whilst the Judge’s reference to section 85A of the 2002 Act is correct as a general statement of law, it must also be recognised that the section contains exceptions to the general provisions relating to the admissibility of evidence. Ms Kullan refer specifically to Exception 2. Exception 2 applies to an appeal under section 82(1) if—

(a)the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),
(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System”, and
(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).

9. It is not disputed before the Upper Tribunal by Ms Aboni that these conditions are met or that Exception 2 does not apply on the facts.
10. Section 85A(4) of the Act is in the following terms:

(4) Where Exception 2 applies the Tribunal may consider evidence produced by the appellant only if it-

(a) Was submitted in support of, and at the time of making, the application to which the immigration decision related,
(b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3) (c),
(c) is adduced to prove that a document is genuine or valid, or
(d) is adduced in connection with the Secretary of States reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points-based System”.

11. A reading of the determination shows no reference to section 85(4)(d) which Ms Aboni accepted was applicable on the facts of this case.
12. It is noted in the decision that the Judge refers to the case of Secretary of State for the Home Department v Raju & Ors [2013] EWCA Civ 754 but this appears to be a case which involved a situation where evidence had been adduced in relation to the acquisition of points which would mean any attempt to introduce evidence later would be specifically excluded by the provisions of section 85A.
13. It was not argued by Ms Aboni that the evidence from Walsall College is not admissible when considering the nature of the decision under challenge, the application of Exception 2, and the specific wording of section 85A(4)(d) of the 2002 Act.
14. The position therefore is that the period of study undertaken by the appellant on the first of the below degree level courses totalled 726 days. The issue therefore is whether the period of study is to be calculated by reference to the CAS, in which case the three-year period would be exceed, or the actual period of study in which case the appellant is three days within the permitted period. This issue is relevant to the materiality of the legal error in relation to the section 85A point.
15. Ms Aboni accepted that the proper period of calculation was that of the actual period of study of 726 days. Adding this to the 366-day period for the proposed course it is arguable that the error made by the Judge is material as the evidence shows that the total period of study is less than the maximum permitted. The decision of the Judge is set aside and remade.
16. Following the conclusion of the appeal a direction was sent to the parties in the following terms:

“At the hearing at the Birmingham Employment Tribunal on 13 March 2017 the appellant relied upon Exception 2 and section 85A(4) of the 2002 Act but made no mention of the decision of the Upper Tribunal in Ahmed and another (OBS: admissible evidence) [2014] UKUT 000365 (IAC) despite the duty upon representatives to bring all relevant decisions to the attention of the Tribunal, whether to their detriment or not.

….The parties shall file written submissions no later than 7 days from receipt of this direction, to be sent to Field House for the attention of Upper Tribunal Judge Hanson, in relation to the merits of the appellant’s case in light of the above decision which appears to suggest that the bar on considering post decision evidence applies to both the points and non-points scoring elements of the decision.”

17. No response has been received from the Secretary of State but a letter has been received from the appellant’s solicitors dated 24 March 2017. The directions were posted on 17 March 2017 and hence the response is in time.
18. The appellant’s response is that the appellant in this appeal has been awarded the points sought as a separate exercise by the Home Office and the decision reached in relation to the acquisition of points was not one which required the Secretary of States consideration of the further evidence. It was submitted that as the issue under consideration was not an element relevant to the acquisition of points, which had been awarded in full as sought, the decision did not prevent the Upper Tribunal from considering the Walsall College evidence.
19. As stated, the respondent has not filed a statement setting out an alternative position and as the issue in Ahmed related to a judge accepting a non-scoring points aspect from which the judge then decided on entitlement to a point scoring aspect, based on the evidence before a decision-maker, the decision can be distinguished as that is not the position faced by the appellant in this appeal.
20. The appeal is therefore allowed under the Immigration Rules.

Decision

21. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed.

Anonymity.

22. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such direction pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 11 April 2017