Alam & Ors v Secretary of State for the Home Department

From 23 May 2011, a tribunal determining a Points-Based System appeal could consider an appellant’s evidence only within the limits imposed by section 85A of the Nationality, Immigration and Asylum Act 2002. Subject to the Order’s express transitional protection for an appeal in which a hearing had already occurred, that restriction applied to pending appeals concerning earlier applications and decisions.

The restriction was procedural and its application was not so unfair as to justify rewriting the commencement provisions. Fairness did not impose a general duty on the Secretary of State to identify missing specified documents and invite their later submission. The prescribed documentary requirements formed an integral part of the Immigration Rules, not a technical omission which could be disregarded.

Three students applied for further leave under Tier 4 of the Points-Based System before 23 May 2011. Each application was refused because specified documentary evidence had not been supplied. Each student produced the missing material when appealing to the First-tier Tribunal after that date.

The Upper Tribunal ultimately dismissed all three appeals. It treated section 85A of the Nationality, Immigration and Asylum Act 2002, commenced on 23 May 2011, as preventing reliance on the new documents. The appellants challenged that conclusion on grounds concerning retrospectivity, the scope of section 85A, procedural fairness, additional grounds, article 8 and the statutory exceptions.

The common issue was whether the First-tier Tribunal could consider documentary evidence which had not accompanied a Points-Based System application made before section 85A came into force.

1. All three appeals were dismissed. Section 19 of the UK Borders Act 2007, and the resulting section 85A of the Nationality, Immigration and Asylum Act 2002, applied from 23 May 2011 to pending appeals concerning earlier applications and immigration decisions. The only material transitional protection was for an appeal in which a hearing, including a case-management review hearing, had occurred before that date. Shahzad [2012] UKUT 81 (IAC) was wrongly decided.

2. The restriction on new evidence was procedural. It removed an appellant’s former opportunity to cure a deficient application on appeal, but did not alter the substantive requirements governing the original application. Its consequences were not so unfair that Parliament could not have intended the provision to apply according to its ordinary meaning.

3. A hearing meant an actual hearing before the First-tier Tribunal. Lodging an appeal or receiving a notice fixing a future hearing did not satisfy article 3 of the commencement Order. The Order’s minor drafting errors could be rectified because its intended grammatical meaning was clear.

4. Section 85A governed the appeal throughout its appellate course, including when the Upper Tribunal remade the decision. An appeal originating under section 82(1) did not cease to have that character when it proceeded to the Upper Tribunal or Court of Appeal.

5. Additional grounds submitted following a section 120 notice remained subject to section 85A where they merely repeated a section 84(1)(a) challenge to the refusal of the Points-Based System application.

6. Fairness did not require the Secretary of State to check every application for missing specified documents and invite their submission before deciding it. The Rules, guidance and form clearly required the evidence to accompany the application. A duty could arise where an innocent applicant was affected by a later change known to the Secretary of State, but no comparable change occurred here.

7. The requirement to provide specified documents was itself part of the Points-Based System. Failure to do so was therefore a failure to satisfy the Rules, not a “no miss”. Evidence required as a qualification document could not be admitted under section 85A(4)(c) merely by describing it as proof that a confirmation of acceptance for studies was valid.

Moore-Bick and Maurice Kay LJJ agreed with Sullivan LJ.

1. Court of Appeal (Civil Division): The three appeals were dismissed unanimously. The court held that section 85A applied to the pending appeals and that Shahzad [2012] UKUT 81 (IAC) was wrongly decided.
2. Upper Tribunal (Immigration and Asylum Chamber): In each case the First-tier Tribunal’s decision was set aside or superseded, and the student’s appeal was dismissed.
3. First-tier Tribunal: Mr Alam’s appeal under the Immigration Rules was dismissed but his article 8 appeal was allowed. Mr Anwar’s and Miss Eghan’s appeals were allowed.