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Fairness to the rescue (again)

The latest case on fairness and the Secretary of State’s duty within the Points-Based System was published earlier last month.  Naved (Student – fairness – notice of points) [2012] UKUT 14(IAC) concerned a student applying for further leave to remain within Tier 4. The SSHD’s sole reason for refusal was that she was not satisfied that he had the requisite level of maintenance funds for not showing that he had an ‘established presence’ in the UK.  [If a person applies for further leave and has been here with leave as a student either having completed  a course of at least 6 months’ duration or having completed 6 months on a longer course, that person qualifies for a lower maintenance level due to having an ‘established presence’ – Rules 14 of Appendix C – Maintenance (funds)].

In a careful judgment, the President and UT Judge Freeman recorded, in what I sense to be a rather admiring tone, that the Appellant had completed – largely accurately – the 39-page application form and had submitted all of the documentary evidence that he was required to.  Reminding us all, no doubt, of how simple, transparent and objective the PBS aims to be – yeah right

However, unbeknownst to the Appellant, the UKBA caseworker considering the application contacted his previous college in order to verify the Appellant’s claim to having studied there.  You can probably guess what happens next….  The college confirms in an e-mail that the Appellant had indeed studied there but (incorrectly) had not finished his course.  The Appellant was duly refused and the first notification of any difficulties with his application or that his previous course of study was being disputed by the SSHD was through the refusal letter being served upon him.

As mentioned above, the Tribunal held a detailed analysis of the application form and what the Appellant had been asked to confirm therein.  As well as what documents the form sets out that should be submitted in support.  Nowhere was it stipulated that the Appellant had to send in documentary evidence of his ‘established presence’ in the UK and more specifically of him completing his last course of study.  It was only through the caseworker’s own enquiries that it all started to fall apart and throughout the application process, the Appellant was not contacted by the UKBA in order to clarify the position.  It was also noted by the Tribunal, again rather admiringly, that as soon as he was made aware of this through the refusal letter, the Appellant lodged all of the necessary documentary evidence with his notice of appeal confirming that he had actually completed his previous course.

Again, you can probably guess what happens next.  The Home Office argued that s.85A applied and that the Appellant could not rely, within the appeal under the Immigration Rules, on the supplementary documents lodged with the grounds of appeal as these had not been submitted by the Appellant with the application.  Nor did the documents go towards proving that a previously submitted document was genuine or valid – the only exception under s.85A(4).

From Paragraph 12 onwards of the determination, the Upper Tribunal analyses s.85A and agrees that on a strict reading of it, the Appellant was not entitled to rely on the supplementary documents because these had not been submitted with the application.  Thankfully, the panel also stressed that he could not have possibly submitted these as a) he was not required to and b) these were adduced to respond to a point raised by the SSHD in the refusal of which he was neither warned nor informed until he was served.

Well thankfully again, the Upper Tribunal found that that was unfair.  However, we are quickly reminded that the Upper Tribunal is a creature of statute and so it is reiterated at Paragraph 15 that “the problem arises not with the terms of the section (…) but with the conduct of the respondent in examining the application and refusing it in the way she did” [Para 15].

So for now, fairness continues to be the buzz word for 2012 and the focus will need to continue to be on whether an immigration decision is not in accordance with the law if the SSHD has failed to discharge her common law duty to act fairly in deciding immigration claims properly made to her.

This case is certainly a useful reminder for representatives to study the PBS application forms meticulously in order to note what information and/or documents an applicant is required to produce in support of an application so as to be able to defeat any s.85A hurdles at appeals and of course in reiterating the fairness points.

Sarah Pinder
Sarah Pinder Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

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