The Secretary of State for the Home Department v MD Mahbub Alam

Where it applies, section 85A prevents an appellant from relying on post-application evidence to establish compliance with points-based Immigration Rules. That evidence may nevertheless be relevant to an Article 8 assessment, but it cannot be used to find that the Rules have been met and thereby remove the State’s legitimate interest in maintaining their integrity.

The transitional effect of article 3 of the commencement order may reduce the weight of that State interest where an appellant lost an ability to cure evidential deficiencies during a pending appeal. It does not permit a tribunal to disregard primary legislation. The resulting fairness concern is to be weighed in the proportionality balance with the strength of the appellant’s private life.

The claimant, a Bangladeshi student, applied for further leave as a Tier 4 migrant. The Secretary of State refused the application because the bank statements supplied with it were too old to prove the required maintenance funds.

On appeal, the claimant produced later bank statements showing that he had held sufficient funds during the relevant period. The First-tier Tribunal held that section 85A prevented reliance on those statements under the Immigration Rules, but allowed the appeal under Article 8 after treating the evidence as showing substantive compliance with the Rules.

The Secretary of State appealed. The central issue was whether the section 85A evidential restriction, including its transitional application under article 3 of the commencement order, could effectively be bypassed through the Article 8 proportionality exercise.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its determination was set aside and the Upper Tribunal remade the decision by dismissing the claimant’s appeal under the Immigration Rules and on human-rights grounds.

2. Section 85A applied. The appeal concerned refusal of a points-based application for variation of leave and was pursued on grounds within section 84(1)(a) and (e) of the Nationality, Immigration and Asylum Act 2002. A notice of hearing issued before commencement was not a “hearing” for article 3(1) of the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011. The claimant therefore could not use the later bank statements to establish compliance with the Rules.

3. The evidential restriction did not govern an Article 8 ground. The Tribunal could consider relevant evidence under section 85(4) when assessing that ground. But it was legally wrong to use excluded evidence to conclude that the claimant met the Rules and then treat that conclusion as eliminating the State’s interest in effective immigration control. For proportionality purposes, the claimant had not shown compliance with the Rules.

4. Parliament’s choice to impose section 85A had to be respected. A general assertion of unfairness could not disapply primary legislation. Any challenge to the validity of the transitional order lay by judicial review.

5. Fairness arising from the transitional position could, however, legitimately reduce the weight of the State’s interest in an Article 8 balance. Here it did so only to a limited extent. The claimant’s private life, based principally on his studies, was weak; his family life remained in Bangladesh; and he had not shown that he could not later return to complete his course. The balance therefore favoured the Secretary of State.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal determination for error of law, and remade the decision by dismissing the claimant’s appeal.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appeal under the Immigration Rules but allowed it under Article 8 of the ECHR.