Mohd Naved v The Secretary of State for the Home Department

In a points-based immigration application, common-law fairness requires the Secretary of State to give an applicant an opportunity to answer a material adverse matter which the applicant neither knew, nor could reasonably have known, would be relied upon. A refusal made without that opportunity is not in accordance with the law and may be set aside on appeal.

This does not relax the evidential restriction in Nationality, Asylum and Immigration Act 2002, section 85A. Applicants must provide with their application all evidence which the form or lawful guidance requires. But an application remains outstanding until it is lawfully determined, so evidence may be considered when the Secretary of State remakes an unlawful decision.

The appellant, a Pakistani Tier 4 student, applied for further leave to remain. He claimed the reduced maintenance requirement available to a student with an established presence in the United Kingdom.

Although the application form did not require evidence that he had completed his earlier course, the Secretary of State made an undisclosed inquiry of his former college. The college incorrectly stated that he had not completed the course. The application was refused without giving him an opportunity to correct that information.

The appellant produced proof of completion with his appeal. The First-tier Tribunal had dismissed the appeal. The central issue before the Upper Tribunal was whether section 85A prevented reliance on that material, notwithstanding the unfairness of the decision-making process.

1. Appeal allowed. The refusal was not in accordance with the law. The Secretary of State had refused the application on the basis of adverse information obtained from the former college, without informing the appellant of it or allowing him to answer it. The appellant had not been required by the form to provide proof of completion of his earlier course, and could not have known that this proof would become material.
2. Section 85A of the Nationality, Asylum and Immigration Act 2002 barred the Tribunal from considering the late documents as evidence in support of the original points-based application. The Tribunal did not disapply or alter that statutory restriction.
3. However, the Secretary of State was under a common-law duty to act fairly when deciding a properly made immigration application. Breach of that duty made the decision unlawful and therefore appealable under section 84(1)(e) of the 2002 Act. The Tribunal applied the approach in Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211 (IAC) and Thakur (PBS decision – ‘common law fairness’) Bangladesh [2011] UKUT 151 (IAC), and treated the appellate jurisdiction as confirmed by Sapkota [2011] EWCA Civ 1320.
4. The application consequently remained outstanding for a lawful decision by the Secretary of State. The certificate was admissible on that further consideration because it could be supplied before the application was lawfully determined. Since established presence and the absence of any other ground of refusal were accepted, the Tribunal expected that leave would be granted, but its order was limited to allowing the appeal as contrary to law.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal because the Secretary of State’s refusal was contrary to law; the application remained outstanding for a lawful decision.
• First-tier Tribunal: Judge BH Forster OBE dismissed the appellant’s Tier 4 student appeal after a hearing at Newport on 18 July.