Mansoor Ali v The Secretary of State for the Home Department

In a points-based system appeal, section 85A of the Nationality, Immigration and Asylum Act 2002 limits the evidence which the Tribunal may consider on Immigration Rules grounds. A section 120 statement may require the Tribunal to determine an additional qualifying ground of appeal, but it cannot be used to introduce post-application evidence to establish compliance with a different PBS requirement.

The material date for such evidence is the date of application. The statement in AQ (Pakistan) that evidence is assessed as at the Secretary of State’s decision does not apply to appeals governed by section 85A. A near miss under the Immigration Rules does not itself establish disproportionate interference under article 8.

The appellant, a Pakistani national, applied for leave to remain as a Tier 1 (General) Migrant. The Secretary of State refused the application because the evidence did not establish the required qualification, earnings or English-language points.

Before the First-tier Tribunal, the appellant relied on a section 120 statement asserting that he instead qualified as a Tier 1 (Post-Study Work) Migrant after his Master’s degree had been awarded. The First-tier Tribunal dismissed the appeal, holding that the PBS application was fixed at the date of application, and also rejected the article 8 claim.

On appeal, the Upper Tribunal considered whether the one-stop procedure required the Tribunal to determine the new PBS basis notwithstanding the evidential restriction in section 85A of the Nationality, Immigration and Asylum Act 2002.

1. Appeal dismissed. The First-tier Tribunal’s dismissal of the Immigration Rules appeal was maintained, although the Upper Tribunal gave different reasons.

2. The Tribunal accepted that, under AS and NV [2009] EWCA Civ 1076, a section 120 statement generally obliges the Tribunal to consider an additional matter which constitutes a permitted ground of appeal. That duty is subject to the statutory restrictions governing the evidence available to determine that ground.

3. Section 85(4) permits relevant evidence, including evidence arising after the decision, but section 85(5) makes that power subject to section 85A. In a PBS appeal on Immigration Rules grounds, section 85A(3) and section 85A(4)(a) permit the appellant’s evidence only if it was submitted in support of, and at the time of making, the application which led to the immigration decision.

4. The appellant’s reliance on a later award of his degree was therefore barred. It made no substantive difference that he sought to satisfy a different PBS route rather than to repair evidential deficiencies in his Tier 1 (General) application. To allow that course would amount to making a fresh PBS application before the Tribunal using evidence which did not accompany the original application.

5. AQ (Pakistan) [2011] EWCA Civ 833 did not alter that result. Its statement that the relevant date was the Secretary of State’s decision did not concern section 85A cases. Where section 85A applies, the material date for the appellant’s evidence is the application date.

6. The article 8 ground also failed. The First-tier Tribunal had properly assessed the appellant’s private life and proportionality. The asserted compliance with the Rules did not make this a “no-miss” case, and a near miss is not determinative of proportionality.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and maintained the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appeal against the Secretary of State’s refusal to vary leave to remain.