Back in May of 2011 the government got round to implementing section 85A of the Nationality, Immigration and Asylum Act 2002.
(It actually could have done so at any point from when Parliament passed the UK Borders Act 2007, but the necessary order was not made until May of 2011).
As we reported at the time, this had a drastic effect on the evidence which Immigration Judges are allowed to take into account when considering appeals against the United Kingdom Border Agency (UKBA)’s decisions to refuse applications for leave to remain in the UK under the Immigration Rules’ points based system.
Basically on 23 May 2011 the position switched from the Tribunal’s being allowed to take account of evidence arising after the date of the UKBA’s decision (which it was permitted to do under section 85 (4) of the 2002 Act) – known as “post-decision evidence” - to its being only allowed to take account of evidence which the applicant submitted with his or her application to the UKBA. The restriction affected all points based system appeals, including those which were already waiting to be heard when it came into force.
In Alam (s 85A – commencement – Article 8) Bangladesh [2011] UKUT 00424 (IAC) the Asylum and Immigration Chamber of the Upper Tribunal considered the Secretary of State for the Home Department’s appeal against Mr Alam’s successful appeal against the UKBA’s decision to refuse to extend his leave to remain as a Tier 4 (General) Student.
His appeal had been allowed by an Immigration Judge who had noted that she was unable because of section 85A to take account of evidence which related to the Immigration Rules. However she also noted that the restriction in section 85A didn’t apply to evidence relating to the Appellant’s human rights, and so she did take it into account in that context.
The evidence in question were some bank statements which Mr Alam hadn’t submitted in support of his application for further leave to remain, but which showed that he would in fact have met the requirements of the Immigration Rules if he had submitted them to the UKBA. Since he did meet the requirements of the Rules the Immigration Judge found that the Secretary of State’s decision disproportionately violated Mr Alam’s rights protected by Article 8 of the European Convention on Human Rights.
As the Senior Immigration Judge sitting in the Upper Tribunal noted, when Mr Alam had lodged his appeal against the Secretary of State’s decision section 85A had not been in force.
The Senior Immigration Judge said that the Immigration Judge had been correct in her analysis of the legislation and the evidential restrictions, but nonetheless found that she had erred in law. He said that she had failed to take account of the fact that that Mr Alam hadn’t submitted the evidence required by the Immigration Rules to the UKBA was relevant to the balancing exercise she was required to carry out in deciding whether his rights under Article 8 had been breached. This was an error of law.
He said:
“Either the logic of this position escaped the Immigration Judge or, more likely, she chose to ignore it in order to enable the claimant to escape what might be regarded as the harsh consequences of the application of section 85A to an appeal which was pending when the Commencement Order brought that section into force.
There will inevitably be cases in which the same evidence will, on the one hand, fall to be excluded by virtue of section 85A, in deciding whether a person meets the points-based Rules, but may nevertheless be considered in connection with that person’s assertion that the immigration decision, if acted upon, would violate his or her Article 8 rights. However, as the present case demonstrates, a judicial fact-finder faced with such a situation must pay proper regard to the fact that, in enacting section 85A, Parliament has decided that there will be circumstances in which a person is to be disabled from proving compliance with the Immigration Rules, where the evidence relied on is not submitted at the time of making the relevant application. Provided that the judicial fact-finder appreciates the position, namely, that there has not been compliance with the Immigration Rules, the weight to be placed upon the State’s interests in maintaining the integrity of United Kingdom immigration control will be a matter for him or her. The proportionality balancing exercise cannot, however, be short-circuited by a finding that the requirements of the Immigration Rules have been met. They have not.”
This is a classic example of the application by the Upper Tribunal of the principle that “the demands of immigration control” – and the weight to be given to them - can be inferred from the contents of the Immigration Rules. If the Immigration Judge had said that she had had regard to what the Rules required and what Parliament had legislated in section 85A in the course of deciding that the Secretary of State’s decision had been disproportionate, no one could have said that she had erred in law in allowing Mr Alam’s appeal under Article 8.
However it is likely to be a useful case for Appellants whose cases appear to fall foul of the new section 85A regime, since it emphasises the fact that while they are restricted by section 85A so far as evidence relating to the Immigration Rules is concerned Immigration Judges are not so restricted by it in their “human rights” jurisdiction.
This is an important distinction, and one which could make the difference between success and failure in many appeals.
The Senior Immigration Judge also notes that the apparent unfairness caused to people whose appeals, like Mr Alam’s, had already begun when section 85A was implemented, could well form the basis for arguments that Article 8 was breached. This didn’t stop him from dismissing the appeal in this case however.