The Secretary of State for the Home Department v Naseer Mumtaz

For the transitional provision in UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011, a hearing includes an oral hearing at which an Immigration Judge considers and grants an adjournment application. Such a hearing is at least a case-management hearing for article 3.

Where that hearing occurred before 23 May 2011 and the appeal remained pending, section 19 of the UK Borders Act 2007 did not apply. The Tribunal could therefore consider evidence not tendered to the Secretary of State when deciding a points-based appeal.

The Secretary of State appealed against Immigration Judge Thew’s decision allowing Mr Mumtaz’s appeal against the refusal of an extension of stay as a student under the points-based system.

Before the substantive hearing, Judge Cohen had heard submissions on, and granted, an oral application to adjourn so that Mr Mumtaz could produce material which was available at the date of the Secretary of State’s decision. At the later substantive hearing, Immigration Judge Thew admitted that evidence and allowed the appeal.

The issue was whether that earlier adjournment hearing meant that the transitional provision in article 3 of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 prevented the new restriction on evidence in points-based appeals from applying.

1. Appeal dismissed. The First-tier Tribunal had made no error of law in considering the further evidence and allowing the appeal.

2. Article 3(1) of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 prevented the amendment made by section 19 of the UK Borders Act 2007 from applying to a pending appeal where a hearing had taken place before 23 May 2011.

3. The definition in article 3(2) expressly included case-management review hearings. The oral hearing before Judge Cohen, at which both parties were represented and the application for an adjournment was considered and granted, was at least a case-management hearing. It was therefore a hearing within article 3.

4. The appeal remained pending. Section 19 did not restrict the evidence which Immigration Judge Thew could consider at the substantive hearing. The evidence established Mr Mumtaz’s entitlement under the points-based system.

5. The Tribunal observed, without deciding the point, that difficulty could arise where an adjournment is sought in advance and dealt with on the papers. The unusual transitional criterion, based on whether there has been a hearing rather than the date of the decision or appeal, should not produce a result in which efficient paper case management disadvantages an appellant.

• Upper Tribunal (Immigration and Asylum Chamber): the Secretary of State’s appeal was dismissed.

• First-tier Tribunal (Immigration and Asylum Chamber): Immigration Judge Thew, in a decision promulgated on 9 June 2011, allowed Mr Mumtaz’s appeal against the refusal of an extension of stay as a student.