Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/46082/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st September 2016
On 5th September 2016

Before

Upper Tribunal Judge Chalkley

Between

Secretary of State for the Home Department
Appellant
and

MOIZ ALI SIDDIQUI
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr G Davison, Counsel instructed by Farani-Javid-Taylor Solicitors LLP

DECISION AND REASONS
1. The appellant is the Secretary of State for the Home Department and, to avoid confusion, I shall refer to her as being, "the claimant".
2. The respondent is a citizen of Pakistan, born on 31st October, 1988. The respondent made application to the claimant on 27th August, 2014 to switch from being a Tier 1 (Post-Study) Migrant to a Tier 1 Entrepreneur. At the time of his application he had leave to remain in the United Kingdom as a Tier 1 (Post-Study) Migrant until 28th August, 2014, having first entered the United Kingdom on 10th May, 2008 with entry clearance conferring leave until 30th September, 2009, as a student. On 12th October, 2009 he was subsequently granted leave to remain until 16th April, 2012 as a Tier 4 Student and on 28th August, 2012 he was granted leave to remain until 28th August, 2014 as a Tier 1 (Post-Study) Migrant.
3. According to a letter from his solicitors, enclosed with his application were, amongst other things, leaflets, business cards, an advertising feature published on craigslist.co.uk, an advertising feature published on halo.co.uk, advertising feature published on Yell.com, website printouts, print screen of company website position on google.co.uk and two invoices, one dated 16th June, 2014 and an invoice of 2nd June, 2014.
4. The purpose of the invoices appears to be to demonstrate that on 16th June, 2014 the respondent purchased 1,000 business cards. He actually purchased them from a printer in Karachi to save money. The purpose in providing the invoice of 2nd June, 2014, from MA Printers Limited was to prove that leaflets for Mass IT Limited had been printed on 2nd June, 2014. Unfortunately, there is no indication in the invoice what it relates to, other than, "A5 leaflets". There does not appear to be any evidence at all to show when the advertising features published on the four websites were published, or to show when the print screen of the company website position on google.co.uk was first published. There is however in the respondent's bundle a document which appears to be a craigslist website posting, but it is headed "this is an unpublished draft".
5. The Secretary of State considered the respondent's application and issued her decision on 19th November, 2014. The respondent was not awarded 25 points for the "access to funds". It was considered by the claimant that the respondent had not demonstrated that he met the criteria relating to advertising. The Secretary of State was not satisfied that there was evidence to show that the advertising covered a continuous period, commencing on 11th July, 2014 up to the date of the application as stated in the Immigration Rules and so the respondent was not awarded any points under any other provisions. To that extent, the application still remains to be fully decided by the claimant.
6. The respondent appealed and his appeal was heard by First-tier Tribunal Judge Mitchell, sitting at Taylor House on 3rd March, 2016. The hearing proceeded by way of submissions only and in paragraph 9 of his determination the judge said this:
"As has been stated the hearing proceeded by way of submissions only. Mr Dasgupta said that the decision of the immigration officer was a proper decision although it was surprising that the officer had not considered the whole of the application. Mr Davison submitted that the advertising information/documents supplied with the application met the rules. There was no requirement in the immigration rules to have dates on the advertising provisions. Having heard the submissions and considered the matter, it does appear that there is no requirement that the advertising have any dates on them. It is only required that the appropriate advertising be provided. I was able to indicate during the course of the hearing that I was satisfied that the advertising material met the requirements of the immigration rules. The decision of the [claimant] is not in accordance with the rules. Both representatives as a consequence asked for the appeal to be allowed and the matter returned to the Secretary of State for consideration of all the application. There was a debate as to whether the Tribunal had authority to do this. In light of the fact that both parties wished the matter to be reconsidered by the Secretary of State it appears to be only fair and reasonable that the matter be returned to the Secretary of State for consideration of the whole of the application." [My emphasis]
7. The claimant challenged the decision of the judge on the basis that the judge had not applied paragraph 41-SDE(3). In paragraph 9 of the determination, the judge found that there was no requirement for the advertising material to have "dates on them" and while this may be true, if one reads the requirements of paragraph 41-SDE(3)(i) in isolation the Immigration Rules must be read sensibly according to the natural and ordinary meaning of the word "used". It is not possible for the material, which does not bear dates, to evidence a continuous period.
8. Before me today Mr Avery submitted that the judge's reasons for his findings were wholly inadequate. One cannot tell on what basis he allowed the appeal. It is not clear whether he found that the material met the requirements of the Rules or not.
9. For the respondent Mr Davison submitted that the Rules were clear and there was no requirement for the advertising material to have any dates on it. If the judge was satisfied that the advertising material met the requirements of the Rules the matter needed only to go back to the Secretary of State. In fairness, Mr Davison accepted that the judge had not set out a full analysis. At paragraph 9 he appears to believe that the only issue is whether or not advertising material have dates on them as opposed to the period when the advertising material was published.
10. The judge appears to have only concerned himself with whether or not the actual advertising material was dated and decided that it did not need to be. That is correct, but an applicant must prove the dates when the material was published in order to meet the requirements of the rule. If the advertisements do not appear in published (and therefore, dated, newspapers or magazines) material then the applicant must prove, in some other manner, that the advertising covered the continuous period.
11. The judge erred in his determination which I set aside. I remit this appeal to the First Tier Tribunal to be heard afresh de novo by a judge other that First Tier Tribunal Judge Mitchell. If I were to retain the matter in the Upper Tier Tribunal it could take many months before the matter were to be re-listed before me. It is respectfully suggested that one hour be allowed for the hearing.
Notice of Decision
The appeal is remitted to the Frist Tier Tribunal to be heard afresh de novo by a judge other than first Tier Tribunal Judge Mitchell.

Richard Chalkley
Upper Tribunal Judge Chalkley