Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/42640/2014
IA/42645/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th September 2016
On 5th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

mr majid rafiq (1)
mr umer junaid (2)
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr P Richardson, Counsel instructed by MA Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants and each of them are citizens of Pakistan whose dates of birth are respectively recorded as 1st December 1979 and 29th July 1985.
2. On or about 13th August 2014 the Appellants and each of them made a combined application for leave to remain in the United Kingdom as Tier 1 (Entrepreneur) Migrants under the Points Based System and for Biometric Residence Permits.
3. On 7th October 2014 decisions were made to refuse the applications.
4. The applications were refused having regard to Table 4 of Appendix A to the Immigration Rules at (d) which sets out the requirements under the Rules and which required certain specified documents as set out in Paragraph 41 - SD(e) of Appendix A. One of the requirements was that there should be one or more of certain specified documents covering (either together or individually) a continuous period commencing before 11th July 2014 up to no earlier than three months before the date of the application:
"Advertising or marketing, including printouts of online advertising, that has been published locally or nationally, showing the applicants name (and the name of the business if applicable) together with the business activity or, where his business is trading online, confirmation of his ownership of the domain name of the business's website?
and
(iv) one or more of the following documents showing trading, which must cover (either together or individually) a continuous period commencing before 11th July 2014 up to no earlier than three months before the date of his application:
(1) one or more contracts for service. If a contract is not an original, the applicant must sign each page. Each contract must show:
(a) The applicants name and the name of the business,
(b) the service provided by the applicant's;
(c) the name of the other party or parties involved in the contract and their contact details, including their full address, postal code and, where available landline phone number and any email address; and
(d) the duration of the contract; or
(2) One or more original letters from United Kingdom regulated financial institutions with which the applicant has a business bank account, on the institutions with which the applicant has a business bank account, on the institution's headed paper, confirming the dates the business was trading during the period referred to at (iv) above;"
5. The refusals focused on a 'Gum Tree' advertisement provided with the application which was said not to be acceptable because it was printed on 12th August 2014 stating that it had been posted eleven days previously which would have meant an end date to the advertisement of 1st August 2014. In those circumstances the Secretary of State contended that the evidence did not demonstrate that the business had been trading before 11th July 2014 and did not cover a continuous period of training commencing before 11th July 2014 up to no earlier than three months before the date of the application.
6. Additionally evidence submitted by the Appellant's in relation to their company Stable Consultants Limited from Metro Bank was said not to be acceptable because it did not cover a continuous period commencing before 11th July 2014, up to no earlier than three months before the date of the application.
7. Those were the two issues which fell for consideration in the appeal which was then lodged and heard by Judge of the First-tier Tribunal Swinnerton sitting at Hatton Cross on 15th January 2016.
8. The advertisement itself on 'Gum Tree' is produced within the Respondent's bundle. The heading to the printout is Stable Consultants Limited. It is not in dispute that that is the company associated with the Appellants. At the top left-hand corner of the document there appears: "8/12/2014". Below that there is some description of the company and a map as to where it might be found together with contact details with the names of each of the Appellants given. Below the address, two thirds of the way down the page there is a reference number for the advertisement which then reads "Posted 11 days ago ? posting ads since June 2014".
9. In relation to the bank material, the Appellants produced a letter from Metro Bank dated 12th August 2014, a copy of which is produced and makes reference to "New Accounts".
10. Judge Swinnerton, without, it has to be said a great deal of consideration of the documentation dismissed the appeals.
11. By Notice dated 18th February 2016 the Appellants and each of them made application for permission to appeal to the Upper Tribunal. Quite apart from the insufficiency of findings of fact which form part of the grounds and the reasons for permission being granted by Judge Hollingworth on 20th July 2016 it was also argued in the grounds and before me that the Gum Tree advertisement did in fact meet the requirements of the Rules stating as it did "Posting ads since June 2014" and therefore necessarily prior to 11th July 2014 and that even if the banking letter was inadequate, given the requirements in Paragraph 41-SD are expressed in the alternative, the Appellants met the requirements of the Rule by the provision of a business contract which it was submitted had been provided to the Secretary of State with the application with reliance placed upon the application form at G27 which reads:
"You must provide one or more documents showing trading (this must cover (either together or individually) a continuous period commencing before 11th July 2014 up to no earlier than three months before the date of your application). Please tick to confirm what is supplied"
12. The box that is available reads "One or more contracts supplied" and that is marked with a cross consistent with the rest of the application in which crosses have been placed to indicate what has it is contended, has been provided.
13. The business contract said to have been provided with the application appears in the Appellants' bundle as a contract entered into by Stable Consultants (UK) Limited and Career Advisory Service Limited. The document is dated 12th June 2014. Mr Colman's submissions to me were that the advertisement from Gum Tree, without more, met the requirement of the Immigration Rule and the bank details were not required because the Rules had been met in the alternative by the provision of a contract. Further if the Secretary of State was at all concerned by the documentation provided then she should have had regard to Paragraph 245AA of the Immigration Rules which sets out the policy of the Secretary of State in relation to documents not submitted with applications the Rule provides as follows:
(a) where part 6A or any appendices referred to in part 6A state that specified documents must be provided, the Entry Clearance Officer, Immigration Officer or the Secretary of State will only consider documents that have been submitted with the application, and they will consider documents submitted after the application where they are submit in accordance with sub-Paragraph (b).
(b) If the applicant has submitted specified documents in which:
(i) some of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing);
(ii) A document is in the wrong format (for example, if a letter is not on letterhead paper as specified); or
(iii) A document is a copy and not an original document; or
(iv) A document does not contain all of the specified information;
The Entry Clearance Officer, Immigration Officer or the Secretary of State may contact the applicant or his representative in writing and request the correct document. The requested documents must be received at the address specified in the request within 7 working days of the date of the request.
(c) Documents will not be requested where a specified has not been submitted (for example an English Language Certificate is missing), or where the Entry Clearance Officer, Immigration Officer or the Secretary of State does not anticipate that addressing the omission or error referred to in sub-Paragraph (b) will lead to a grant because the application will be refused for other reasons?"
14. Mr Richardson reminded me of the Guidance in the case of Ukus (Discretion: when reviewable) [2012] UKUT 00307. That provides:
(1) If a decision-maker in the purported exercise of a discretion vested in him noted his function and what was required to be done when fulfilling it and then proceeded to reach a decision on that basis, the decision is a lawful one and the Tribunal cannot intervene in the absence of a statutory power to decide that the discretion should have been exercised differently (see Section 86(3)(b) of the Nationality, Immigration and Asylum Act 2002).
(2) Where the decision-maker has failed to exercise a discretion vested in him, the Tribunal's jurisdiction on appeal is limited to a decision that the failure renders the decision "not in accordance with the law" (Section 86(3)(a)). Because the discretion is vested in the executive, the appropriate course will be for the Tribunal to require the decision-maker to complete his task by reaching a lawful decision on the outstanding application, along the lines set out in SSHD -v- Abdi [1996] Imm AR 148. In such a case, it makes no difference whether there is such a statutory power as is mentioned in paragraph 1 above.
(3) If the decision-maker has lawfully exercised his discretion and the Tribunal has such a statutory power, the Tribunal must either;
(i) uphold the decision-maker's decision (if the Tribunal is un-persuaded that the decision-maker's should have been exercised differently); or
(ii) reach a different decision in the exercise of its own discretion.
15. Mr Richardson's submission therefore was that this is a case in which it was open to the Secretary of State to exercise a discretion but she did not do so and in those circumstances the matter at the very least ought to be remitted to the Secretary of State in order for her to complete the task in accordance with (2) in Ukus.
16. Still further as evidence of the failure of the Judge to make findings based upon the available evidence, the Appellants had submitted witness statements which were before the Judge making reference to a business agreement/contract with Career Advisory Services Limited. The Judge had made no finding as to whether or not she accepted that assertion but, without more appears to have regurgitated the refusal letter.
17. Of further importance in this case was that at paragraph 22 of the decision of Judge Swinnerton it was recorded that the contract between Stable Consultants and Career Advisory Service Limited was not submitted with the application as if such was a concession. Mr Coleman made clear that that was not how the matter was presented at all. Clearly what appears in the decision is inconsistent with the witness statements, it is also clear from the Judge's notes that reference was made to the contract with a note referring to Counsel handing out the Guidance in relation to contracts. I note also in the Judge's notes reference to the Guidance in Mandalia (Appellant) -v- Secretary of State for the Home Department (Respondent) [2015] UKSC 29.
18. In the case of Mandalia, the question before the Supreme Court was whether the Agency had acted unlawfully in refusing visa extension application without first inviting Mr Mandalia to supply a further bank statement in accordance with the Guidance set out in the process instruction. The Supreme Court unanimously allowed Mr Mandalia's appeal and quashed the refusal of his visa extension application.
19. It is perfectly clear in my judgment that there has been a total and singular failure on the part of the Judge to make a finding as to whether or not the contract between Stable Consultants Ltd and Career Advisory Service was in fact lodged with the application. At the very best what appears at paragraph 22 is ambiguous but given that findings of fact and reasons appear later in the Decision and Reasons, and come after the submissions, I am strongly inclined to the view that the Judge simply made no finding. There is consequently in my judgment an error of law.
20. The next matter for consideration however is whether it is material. Were the Tribunal to have found that the contract had in fact been supplied with the application (it was common ground before me that the bank letter did not meet the requirements of the Rules) ought the Secretary of State either to have accepted the advertisement without more or in the alternative ought she to have considered her own flexibility policy and called for an earlier advertisement?
21. Mr Whitwell for the Secretary of State invited me to find in any event that the contract which it was said had in fact been submitted with the application had not been sent. Firstly he had no record of it but more particularly the application form itself at section 7 where there is a summary sheet has nothing more than "other doc" and then the number 7 being the number of other documents submitted. The significance of a finding which I was invited to make, that the contract was not sent was that under C(b) absent the contract there was no need for the Secretary of State to consider evidential flexibility in relation to the advertisement because the absence of the contract and the bank letter not meeting the requirements of the Rule would have meant that the application would have been refused for other reasons.
22. It is of course for the Appellants to prove their case on balance of probabilities. Given that a finding on whether or not the contract was supplied with the application informs the extent to which the Secretary of State was required to consider evidential flexibility, clearly the error is material and I so find.
23. Having found a material error of law it is necessary for me to remake the decision; remit to the First-tier Tribunal, if necessary; or in this case in the remaking having regard to Ukas have the matter remitted to the Secretary of State in order that she should call for any further evidence relating to the advertisement.
24. Whilst the burden of proof is upon the Appellants, to the civil standard, and notwithstanding there being little evidence, there is in my judgment sufficient evidence taken from the application form at G27 together with the witness statements of the Appellants to like effect, for me to find that contracts were supplied as contended. It is clear from G20 of the application form that the contracts being spoken of appear to be contracts with potential clients so that at G27, on balance the Appellants were indicating that they were supplying that type of contract. What appears in the summary of documents is corroborative. I therefore find that on balance of probabilities that the contract, which did meet the requirements of the Rules, was supplied.
25. The question then is whether the Secretary of State should have called for any further advertisements. Mr Richardson was for saying that it was clear on the face of the advertisement that it must at the very least have been one of a sequence. If as on the face of the document the company, Stable Consultants Limited had been posting "ads" (which I take to mean advertisements since June 2014) then even if the advertisement relied upon was insufficient, it was submitted that there must have been earlier ones. Further the date which appears on the document 12th August 2014 did not, it was submitted, relate to the date upon which the document was in fact posted but was the date upon which it was printed out.
26. I cannot make a finding without more as to what the date at the top left-hand corner of the document means. There is no scope for post-decision evidence but it was not necessarily the case that the advertisement was posted only eleven days prior to 12th August 2014. What has happened in my judgment is that the focus of the Secretary of State upon the bank statement, which clearly did not meet the Rule, and her interpretation of the advertisement taken together mean that it was not felt necessary to invite further evidence. I come to the view that although it is possible that posting advertisements since June 2014 could mean advertisements in relation to the company or otherwise, the real flaw here is that it does not appear that the Secretary of State has given any thought at all to the possibility of evidential flexibility in circumstances in which in my judgment sufficient questions arose out of the advertisement for her to have done so.
27. I, for my part, cannot make a finding whether or not there was an advertisement placed before the material date but clearly the Gum Tree advert, expressed as it is, points to a line of enquiry sufficient to fall within 245AA(b)(i).
28. In those circumstances I find that this matter needs to be remitted to the Secretary of State to complete her enquiries which will start with consideration as to whether or not to exercise her discretion with respect to the Gum Tree advert and should she so decide then invite the Appellants to produce the evidence from Gum Tree showing that there was in fact an earlier advert. If of course the Appellants cannot meet that requirement then all of this will have been for nought.
Decision
29. The decision of the First-tier Tribunal is set aside. The First-tier Tribunal is remade such that the matter is remitted to the Secretary of State in accordance with the Guidance in Ukas in order that she can consider whether or not to invite the Appellants to provide the missing advertisement or otherwise sufficient evidence to demonstrate that the advertisement itself produced was published prior to the required date. In the alternative it is possible that the document does not contain all of the specified information in that it is not clear when in fact the advertisement was published. The Secretary of State has taken the date 8/12/14 as the date upon which it was published but I do not find that that is necessarily established from the document it may just as well be the consequence of a screenshot or the date upon which it was printed.

No anonymity direction is made.

Signed Date 6th October 2016

Deputy Upper Tribunal Judge Zucker