In the same week that the Ministry for Justice announced that from October of this year (2011) fees will be payable by people wishing to appeal against immigration decisions (with exceptions for people appealing against refusal of asylum and humanitarian protection) the Immigration Minister announced yesterday that section 19 of the UK Borders Act 2007 will come into force from next Monday (23 May 2011).
Section 19 affects the jurisdiction conferred on the Upper Tribunal by amending section 85 of the Nationality, Immigration and Asylum Act 2002. Section 85 dictates the kind of evidence the Asylum and Immigration Chamber of the First Tier Tribunal is and is not entitled to take into account when deciding appeals against immigration decisions.
Broadly speaking the new section 85A restricts the evidence which the Tribunal can consider to that which was originally submitted by the person appealing when he or she made the application to the UKBA, unless it is relevant to any point being pursued on the appeal which is different to whether the decision is in accordance with the Immigration Rules or is unlawful for some other reason. Evidence will also be allowed to be considered by the Tribunal to prove that a document already submitted is genuine or valid, or if it relates to the exercise by the Secretary of State of a discretionary power not related to the points based system. So where an application for leave to remain is refused under a general ground for refusal this new section wouldn’t operate to restrict evidence used to show that the refusal on that basis was incorrect.
As far as appeals against refusals of entry clearance are concerned, section 85 has always prevented the Tribunal from taking account of evidence about things which have happened since the decision to refuse the application, and in any event there aren’t and never have been any appeals against decisions to refuse entry clearance to points based system applicants. So “no change there”.
It’s only people who are already in the UK and who are appealing against decisions to refuse their applications for leave to remain who will be affected. Today (Friday 20 May 2011) is the last day on which they are entitled to provide the Tribunal with evidence (for example bank statements) which shows that at the time of their applications to the UKBA they met the requirements of the Immigration Rules although they didn’t provide this evidence when they applied.
The Minister’s announcement includes this:
"People wishing to remain in the UK under the Points Based System are required to submit all relevant evidence in support of their application at the time that application is made. This enables caseworkers to make the right decision in the first instance, often avoiding unnecessary and expensive publicly funded appeals. It also protects the integrity of the immigration system, ensuring all necessary checks can be made and any deception identified”.
What this fails to recognise is that the Points Based System is hideously complicated. Because of this many applicants who actually do meet each criterion of the Rules nonetheless don’t provide the right kind of evidence to the UKBA and end up being refused. As Lord Justice Longmore said in Adedoyin v Secretary of State for the Home Department [2011] 1 W.L.R. 564:
"I am left perplexed and concerned how any individual whom the Rules affect (especially perhaps a student, like Mr A, who is seeking a variation of his leave to remain in the United Kingdom) can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance, funded by the taxpayer, that justice can be done.”
Back in 2009, in NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025, one of the first “reconsideration” cases determined by the Asylum and Upper Tribunal (the equivalent of what would be an Upper Tribunal determination nowadays) the Tribunal was able to allow the appeal of one of the three Appellants before it on the basis of the very shortly to be defunct jurisdiction conferred on it by section 85 (4) of the Nationality Immigration and Asylum Act 2002. The Appellant possessed a bank statement showing that at the time of her application she had had the necessary level of funds required by the relevant Immigration Rule.
It’s perhaps worth remembering in the context of this measure that the other Appellants in the same case didn’t have the necessary funds when they applied for leave to remain. However by the time of their appeals they did have enough money. Their appeals were however dismissed because they couldn’t meet the requirement of the Rules. This conclusion as to the limit of section 85 (4) of the Nationality Immigration and Asylum Act 2002 was later also reached by the Court of Appeal in Secretary of State for the Home Department v Pankina; Malekia & Others v Secretary of State for the Home Department [2010] EWCA Civ 719.
So it was never the case – in case anyone thought it was - that this provision of the Nationality Immigration and Asylum Act 2002 enabled people who weren’t entitled to be granted leave to remain when they applied to succeed in their appeals. Instead, unsurprisingly for an appeal system, it provided justice to those who had been entitled to succeed in the first place.
Now more than ever before it has become essential for anyone who needs to apply to the UKBA for any form of leave to remain (or for entry clearance) under the points based system to obtain professional legal advice before making any application. The appeal system won’t provide any second chance.