MS v The Secretary of State for the Home Department

A statement under section 120 of the Nationality, Immigration and Asylum Act 2002 may require the Tribunal to determine a genuinely new ground for remaining in the United Kingdom, even though the Secretary of State has not decided it. That effect does not extend to a reformulation of the original application which relies on evidence of subsequent circumstances.

Where the applicable Immigration Rule imposes a fixed historic requirement, section 85(4) does not permit later evidence to cure non-compliance during the prescribed period. A failure to issue removal directions and to consider paragraph 395C of HC 395 will not render a refusal unlawful unless that omission makes, or could make, a real difference in the particular case.

The appellant, a Pakistani national, appealed against the refusal to vary his leave as a Tier 1 (Post-Study Work) Migrant. He had not maintained the required funds throughout the three months before his application, although his account later showed the required balance.

An Immigration Judge dismissed the appeal. On reconsideration, the appellant contended that his witness statement should be treated as a section 120 statement and as a fresh application, so that later bank evidence could establish compliance. He also contended that the refusal was unlawful because no removal decision had been made and paragraph 395C of HC 395 had not been considered.

The central issues were the effect of a section 120 statement after AS (Afghanistan) v Secretary of State for the Home Department; NV (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 1076, and the effect of the absence of removal directions.

1. Appeal dismissed. The Immigration Judge’s decision dismissing the appeal was maintained.

2. The Tribunal accepted that the appellant’s witness statement and solicitors’ letter could be treated as a section 120 statement. There was no statutory time limit or prescribed form which prevented that treatment. The Tribunal was not bound by directions referred to in a Civil Appeals Office letter.

3. AS (Afghanistan); NV (Sri Lanka) established that the Tribunal will be the primary decision-maker in more cases where an appellant raises a genuinely additional ground in response to a one-stop notice. The decision did not require the Tribunal to treat a restatement of the original basis for leave as a fresh application made on the date of the section 120 statement.

4. The appellant’s original application depended on compliance with a fixed historic funds requirement. His later ability to show the required balance was evidence of subsequent circumstances, not a new ground directed to the immigration decision under appeal. Section 85(4) therefore did not allow the later evidence to cure his failure to meet the requirement during the three months before the application. A further points-based application could not properly be precluded under section 96 on that basis.

5. The absence of a removal decision and of consideration under paragraph 395C of HC 395 did not make the refusal unlawful. Unlike the position in JM v Secretary of State for the Home Department [2006] EWCA Civ 1402, the appellant had chosen not to pursue a human-rights claim. Consideration of paragraph 395C could not make a real difference on these facts.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, maintained the Immigration Judge’s dismissal of the appeal.
• Immigration Judge: Dismissed the appeal against the refusal to vary leave to remain.