Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/42934/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 January 2016
On 20 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

mr md abdul aZIZ
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Makol
For the Respondent: Mr Nath, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh. He was born on 8 October 1983. He appealed against the respondent's refusal dated 22 September 2014 to grant him leave to remain as a Tier 1 (Entrepreneur) Migrant. First-tier Tribunal Judge Rodger (the judge) in a decision promulgated on 24 June 2015, allowed the appeal because she found that the appellant met the requirements of the Immigration Rules.
2. The respondent claimed that the judge had materially misdirected herself in law in terms of the points-based system and materially erred in making a full fee award:
Ground 1. Material Misdirection in Law
3. The grounds claimed the judge failed to give herself the appropriate self direction about the limitation of evidence she could take into account under the points-based system. She could only consider evidence adduced by the appellant if it was submitted in support of and at the time of making the application. The respondent's three key reasons for refusal were not adequately addressed by the judge:
(a) the respondent "...... accepted that he had submitted a copy of the Gumtree advert and a copy of an advert on Twitter but he had not provided any evidence that these adverts were placed prior to 11 July 2014 and it did not cover a continuous period commencing before 11 July 2014, up to no earlier than three months before the date of application." See [7](iii) of the decision.
(b) and that "?? the evidence submitted in relation to marketing material/advertising material/article in newspaper or other publication at a trade fair/personal registration with a trading body linked to his occupation was not acceptable as it did not cover a continuous period commencing before 11 July 2014, up to no earlier than three months before the date of his application." See [7](iv) of the decision.
(c) and that "?? the contract was not acceptable as it did not have a quantifiable period on it, that is, the proper dates of the duration of the contract. There was no clear duration of contract." See [7](v) of the decision.
4. There were other issues. At [13] of the decision the judge recorded that she had accepted documents from the appellant's counsel "?..originals of two leaflets (one dated 22/06/14 and one dated 07/07/14) and a colour copy of an advert for an event being held by the appellant on 27 and 28 June 2014 without addressing her mind to the admissibility of those documents, given the respondent's reasons for refusal".
5. It was not open to the judge to accept the appellant's unsupported claims in evidence-in-chief (see [15] of the decision) that those advertising materials were submitted with the application, given that the respondent Presenting Officer's submissions specifically contested that as a material fact in issue in the appeal, maintaining the respondent's position that the advertising materials had not been submitted with the application as claimed as they were not on the Home Office file. See [18] of the decision.
6. Whilst the judge properly applied her mind to whether the appellant could provide proof of posting, delivery and receipt by the respondent of the amended contract with the missing information, before the date of the respondent's decision ([21] of the decision), it was clear that the judge allowed herself to become sidetracked from the key issue which was that even accepting that the appellant had submitted the amended contract complete with the missing information before the respondent's date of decision, the appellant's appeal still failed to meet the requirements of the Immigration Rules. That was because the judge erred in failing to address her mind as to whether the appellant could properly discharge the burden of proof to the requisite standard, to show that he had indeed, as claimed, sent the two leaflets and his workshop advert with his application by way of producing the appropriate proof of posting and delivery normally expected in such circumstances. Moreover, the judge further failed to properly determine whether any such advertising material covered the relevant period as contested by the respondent. In finding that "?? for some unknown reason the respondent does not have them on file and did not consider such documentation" ([21] of the decision), the respondent submitted that it was not properly open to the judge to effectively reverse the burden of proof to the respondent.
7. The respondent submitted that the judge made a material misdirection of law in considering evidence that she was prevented from considering and erred in allowing the appellant's appeal on the basis that he could meet the requirements of the Immigration Rules.
Ground 2. Fee award
8. The judge erred in making a full fee award against the respondent given she failed to provide any reasons why it was appropriate for her to do so.
Permission to Appeal
9. Judge J M Holmes granted permission to appeal on 29 October 2015. He considered it was arguable that the judge failed to confine herself to the evidence submitted with the application and failed to adequately engage with the specified evidence required of the applicant in support of his application by paragraph 41-SD. Even if the appellant had submitted with his application the evidence of advertisements that he claimed to have submitted with it, that did not meet the requirements of the Rules because of the deficiencies in the document relied upon as the "contract" with Maldon Catering that had been supplied with that application. Those deficiencies could not be cured by evidence subsequently produced. Thus the judge's approach to the "amended contract" was arguably flawed and amounted to a material error of law since the appellant did not in fact meet the requirements of the Rules so that his appeal should have been dismissed.
Submissions on Error of Law
10. Mr Nath relied upon the grounds.
11. Mr Makol conceded that certain documentation was omitted from the application in error, however, that was remedied prior to the date of the respondent's decision. He relied upon Nasim [2013] UKUT 610 (IAC) nor did Mr Nath take any issue with its relevance.
Conclusion on Error of Law
12. Mr Nath conceded that the respondent had a discretion to consider any documents submitted by the appellant prior to the date of the decision, however, he argued such consideration was not obligatory.
13. The appellant produced evidence found by the judge to be credible that he had posted the documentation and that it had been received by the respondent but the Presenting Officer at the hearing said the documentation was not on the file. The judge found the appellant to be "...... an honest and entirely credible person". She found he had worked hard to set up his business, that it was a genuine business and that his advertising was also genuine. She accepted his evidence as to the dates of the leaflets and also that he had sent the two leaflets and his workshop advert with his application. She found there was documentation sent by the appellant and received by the respondent that was missing from the respondent's file. Those were findings that the judge was entitled to come to on the evidence before her.
14. The judge found that there was inadequate documentation provided with the application but which was remedied by the appellant before the respondent's decision.
15. The judge went on to find that the amended contract reflected the situation as it was at the time of the application and did not indicate a change in position or new circumstances. See [22] of the decision.
16. As regards the leaflets and advert, the judge set out the evidence in that regard at [15]. She found at [23] that the leaflets and Gumtree advert were placed prior to 11 July 2014, such that (and I find) the appellant had provided sufficient evidence which covered a continuous period commencing prior to 11 July 2014 up to no earlier than three months before the date of his application.
17. Leaving aside the issue of the advertisements said to have been submitted as of the date of the application, the appellant had not submitted the evidence specified at paragraph 41-SD(c) of Appendix A. The head note to Nasim provides that as held in Khatel & Ors (S85A: effect of continuing application) [2013] UKUT 44 (IAC) a Tribunal in a points-based appeal is precluded from considering evidence as to compliance with points-based rules where that evidence was not before the Secretary of State when she took her decision, but the section does not prevent the Tribunal from considering evidence that was before the Secretary of State when she took the decision, whether or not that evidence reached her only after the date of application for the purposes of paragraph 34F of the Immigration Rules.
18. I find that there was no obligation, merely a discretion on the part of the Secretary of State to take into account the amended contract. The issue for me must be whether the Secretary of State was under an obligation to at least consider the exercise of her discretion.
19. The fact that the Presenting Officer at the hearing confirmed that there was no amended contract on the file, notwithstanding the evidence that it had been posted and received, was in my view, credible evidence that such documentation had been received by the respondent, but in some way had been overlooked or misplaced, such that she did not proceed to consider whether she should exercise her discretion.
20. I find there was an obligation on the Secretary of State to at least consider the exercise of her discretion. In the particular circumstances of this case, in terms of the findings made by the judge, I do not accept that the Secretary of State can rely upon the fact that the documentation was not supplied with the application, such that the claimed error on the part of the judge in that regard is not made out.
21. As to the fee award, given the judge's findings, she gave adequate reasons for making the fee award.
22. In summary, I conclude that the decision does not contain a material error of law, such that the decision of the First-tier Tribunal should be set aside.
Decision
23. The decision of the First-tier Tribunal contains no error of law and shall stand.
No anonymity direction is made.

Signed Date 8 January 2016

Deputy Upper Tribunal Judge Peart