Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/43107/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 25 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

SALMA BEGUM
(NO anonymity direction)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Martin of Counsel
For the Respondent: Mr Whitwell a Home Office Presenting Officer

DECISION AND REASONS

Background

1. The Respondent refused the Appellant's application for leave to remain as a Tier 1 (Entrepreneur) Migrant on 13 October 2014. Her appeal against that decision was dismissed by First-tier Tribunal Judge Phillips following a hearing on 30 July 2015. This is an appeal against that decision.

The grant of permission

2. The Vice President of the Upper Tribunal, Judge Ockeleton, granted permission to appeal (12 December 2016) in light of the decision of Mrs Justice Lang DBE sitting in the High Court (CO/2814/2016) who determined that the case ought to be reconsidered in light of SH (Pakistan) [2016] EWCA Civ 426 and in particular [24]. The evidence missing from the application was who owned the website/domain.

3. In essence it was submitted that [245AA (d) (iii)] of the Statement of Changes in Immigration Rules HC395 ("the rules") had been misapplied. This states;

"If the applicant has submitted a specified document:
(iii) which does not contain all of the specified information but the missing information is verifiable from:
(1) other documents submitted with the application,
(2) the website of the organisation which issued the document, or
(3) the website of the appropriate regulatory body,

The application may be granted exceptionally, providing the" Respondent "is satisfied that the specified documents are genuine and the applicant meets all the other requirements."

4. Appendix A 41SD (e) (iii) (2) states that the following must be submitted;

"if the applicant ? owns the domain name of the business's website and submits evidence to this effect, dated printouts from the business's website detailing the service or product provided by the applicant's business ?"

5. I do not extend permission to extend the grounds of this appeal to enable the 10 year residence point to be considered as that was not a fact that existed when the Judge made his decision, and the Judge could not have erred in not considering it.

Respondent's position

6. It was submitted in the rule 24 notice (9 January 2017) that the Appellant had not provided evidence of the domain name relied upon. The Respondent was not required to request this evidence. It was open to the Judge to conclude that the rules were not met.

7. It was submitted orally that [13] of the determination was a submission by the Appellant and not a finding as to whether the web domain had been purchased on 7 July 2014 and would have led to the application being granted had it been then provided. Evidential flexibility as explained in SH is not relevant as the rules are clear as to what should be submitted with an application.

Appellant's position

8. There is no doubt that the required web site existed and there is a document that shows who owns the domain. This was submitted within the Appellant's original bundle. The website designers could confirm the Appellant owned the domain name. The Respondent did not open her mind to this and did not ask if there was further information. Exceptionality is not required to exercise the power to request further information. Mandalia v SSHD [2015] UKSC 59 cautions against pedantry.

The Judges findings

9. The Judge found [27]

"that the omission of the confirmation of ownership of the domain name does not fall within paragraph 245AA because the appellant did not submit a specified document in the wrong format?or one which did not contain all the specified information?the proof of ownership of domain name is not a document in sequence?"

Guidance Case Law

10. SH notes [24] that if there is overwhelming evidence that a document existed, and enough evidence that had it been provided the application would succeed, that the evidential flexibility policy provides that the benefit of the doubt in cases of uncertainty should be exercised in favour of the Appellant.

Discussion

11. I am not satisfied that the Judge materially erred for the following reasons.

12. The details of website/domain ownership was not verifiable from other documents submitted with the application or the website of the organisation which issued the document or the website of the appropriate regulatory body. It was only verifiable by contacting the organisation directly. It was not just a matter of going online and looking at information on a screen, but required contact to be made, an enquiry lodged, and information being provided. The evidential flexibility policy contained within [245AA] does not cover that type of investigative work. It is not a matter of pedantry, and there was no overwhelming evidence available to the Respondent when the application was submitted that had enough evidence been provided, the application would have succeeded. It is worth noting that the application had been refused on other grounds as well, but the Judge found on the Appellant's favour on those matters. However, with a multiplicity of apparent defects, the Respondent could not be said to have erred in determining that had the evidence of the website/domain ownership then been provided the application would have succeeded.

Decision:

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

Deputy Upper Tribunal Judge Saffer
24 January 2017