Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/41862/2014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Determination & Reasons Promulgated
On 19th April 2016
On 14th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Paul Adedeji Ajayi
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No legal representation
For the Respondent: Mr J Parkinson (HOPO)

DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge John Hollis, promulgated on 11th February 2015, following a hearing "on the papers" on 23rd January 2015, whereupon the judge dismissed the appeal of the Appellant. The Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a male, a citizen of Nigeria, who was born on 31st July 1985. He appealed against the decision of the Respondent to refuse his combined application for leave to remain as a Tier 2 (Minster of Religion) Migrant and a biometric residence permit under paragraph 245HD of HC 395.
The Appellant's Claim
3. The Appellant's claim is that he used to work as a director of evangelism at the Northampton branch of the Christ Apostolic Church, and that his duties includes preaching, teaching, and advising on evangelical beliefs of the church. He used to liaise with the senior pastor through minister of religion about the evangelical strategy needed for wherever he is located. This is clear from a letter from the Christ Apostolic Church, dated 15th September 2014, written by the Reverend S. O. Oluwasola, chairman of the board of trustees, to the Secretary of State in the Appellant's application.
4. The Respondent Secretary of State refused the application on the basis that the Appellant did not meet the requirements of paragraph 245HD, namely, that the Appellant's Sponsor the Christ Apostolic Church, New Testament Assembly,
"Has not performed an 'appropriate resident labour market test as defined in Appendix A. The Respondent was therefore unable to award any points under Appendix A: Attributes in the Appellant's point-based application'". (See paragraph 4).
5. The Appellant, however, complains that the vacancy of the job he now feels was advertised with the universal job match on 17th April 2014, that he saw the advert and he printed a copy of it on 22nd May 2014 and that he "enclosed a copy alongside other supporting documentation", and that this alone is 35 days which is more than the minimum required 28 days that the advert was still online for until June 2014. The Appellant claims that his Sponsor told him the advert was made for 60 days (paragraph 5 of the determination).
6. In his determination, the judge stated that, "Exception D of form IAFT-1 the Appellant states that he is sending a copy of his 'certificate of sponsorship (detail)' and a copy of the advert" (paragraph 7). However, the judge then stated that, "I can find no trace of a document entitled 'certificate of sponsorship' in the documents before me" (see paragraph 7). The judge also observed that, "additionally, there is no letter from the Sponsor to show that the Appellant has, in fact, been appointed to the position advertised (paragraph 8). The judge concluded that, "I, therefore, find that the Appellant has failed to submit a 'certificate of sponsorship' as showing the details required by paragraph 245HD" (see paragraph 9).
7. The appeal was dismissed.

Grounds of Application
8. The grounds of application state that the judge erred in law because the evidence complained of had in fact been submitted. The certificate of sponsorship had been submitted. A letter showing that he was employed had been submitted.
9. On 20th May 2015, permission to appeal by the First-tier Tribunal was refused, but not without the observation that it was not clear why the judge had failed to locate the certificate of sponsorship because it was in the Respondent's bundle and it was also annexed to the Appellant's Grounds of Appeal. Permission was refused because this was a PBS case and it was incumbent on the Tribunal not to take the grant of evidence that was not submitted in support of, and at the time of making, the application to which the immigration decision related.
10. On 22nd July 2015, however, the Upper Tribunal granted permission on the basis that the judge should have considered the certificate of sponsorship, "when it is contended in the renewed grounds that it was within the bundle of documents before him [i.e. the judge]".
11. On 21st August 2015, a Rule 24 response was entered to the effect that the Sponsor had not performed the resident labour market test as defined in Appendix A and this meant that the appeal could not in any event have succeeded.
Submissions
12. At the hearing before me on 19th April 2016, the Appellant, who was unrepresented, stated that the certificate of sponsorship was before the Tribunal and it was in the bundle that was sent to the Tribunal and ought to have been considered. Second, he drew my attention to the letter of 15th September 2014 from the Christ Apostolic Church, signed off by the Reverend S. O. Oluwasola, the chairman of the board of trustees, confirming that the Appellant had "just been employed by the church/charity with a certificate of sponsorship number C2R8E7500T2V". The letter explained that the duty of the applicant was to work as a "director of evangelism at the Northampton branch" of the church. It also went on to say that, "the Rule passes the resident labour market test as it was advertised with the DWP universal job match with the job ID 2074997".
13. On behalf of the Respondent, Mr Parkinson, as a Senior Home Office Presenting Officer, stated that there is only one issue in this appeal and this was whether the Appellant meets the requirements of Appendix A. He did not do so because the certificate of sponsorship only contained one date and this was 17th April 2014. It did not show the period during which time the Appellant had seen his position advertised as required by the Rules.
14. This meant that the resident labour market requirement had not been met. The refusal letter had already made this clear. It was not clear from looking at the certificate of sponsorship that the advert had been put in for 28 days in the previous six months.
15. The Appellant had chosen a "paper hearing". He was not able to give evidence at the hearing. He could not succeed now. This was a PBS case. The judge could only look at evidence that had been put before the Secretary of State. Under paragraph 92(a)(iii)(3) the resident labour market test must be satisfied. It must be satisfied for 28 days. This had not been done.
16. In reply, Mr Ajai stated that the job had been advertised on 17th April 2014 and the advert is dated 22nd May 2014. This alone is 35 days. It was clear that the evidence was there even before the Secretary of State. One only has to look at the date of the advert being 22nd May 2014.
Error of Law
17. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are as follows. First, the letter of 15th September 2014 from the Christ Apostolic Church was part of the Appellant's bundle and should have been considered. It was a letter written to "the Home Secretary" in Croydon. It was also before the Respondent Secretary of State at the time of the making of her decision. The letter is clear. It makes it abundantly plain that the Appellant has been employed with the certificate of sponsorship with the appropriate registration number. It also makes it clear that his job was advertised with the DWP universal job match with job ID 2074997.
18. It is further made clear that his duties include, preaching, teaching, and advising on evangelical beliefs of the church. Section 92 sets out in the alternative a number of matters that must be considered. The judge failed to do so.
19. Second, the advert is dated 22nd May 2014 and it confirms the date of the advertisement being 17th April 2014. The advert was placed on the church website as well. These are material matters that the judge should have taken into account and a failure to do so is an error of law.
Remaking the Decision
20. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am allowing this appeal for the following reasons.
21. First, the letter of 15th September 2014 from the Christ Apostolic Church makes it clear that the Appellant has already been employed by the church in the capacity of director of evangelism and that his job has been advertised with the DWP universal job match. It also makes it clear that "the role passes the resident labour market test". This letter is from a "A rated Sponsor and we certified" the fact that the, "maintenance and that of his dependant throughout the period of his employment with us".
22. Second, the job was clearly advertised on 17th April 2014 and the advert remained on the website until 22nd May 2014, a period of 35 days in itself, and if one were to take this into account it is clear that the 28 day period during the period preceding six months is satisfied. The decision has to be made on a balance of probabilities, and on that basis, this appeal must be allowed.

Notice of Decision
23. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.
24. No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 13th September 2016