Mercy Susan Philipson & Ors v The Secretary of State for the Home Department

An application for indefinite leave to remain under rule 134 of the Immigration Rules is not an application under the points-based system merely because rule 134(iv) refers to Tier 2 sponsor guidance. Section 85A of the Nationality, Immigration and Asylum Act 2002 therefore does not exclude post-decision evidence relevant to the substance of the refusal.

A backdated wage increase may be admitted under section 85(4) to establish that the required rate of pay was met at the date of decision. The Tribunal also indicated that Article 8 adjudication requires identification of a legitimate aim and a fact-sensitive proportionality assessment; immigration control is not, without more, the legitimate aim specified by Article 8(2).

The first appellant, an Indian national admitted in 2006 on a five-year work permit as a care assistant, applied for indefinite leave to remain under rule 134 of the Immigration Rules. Her husband and two children were her dependants.

The Secretary of State refused the application because the stated wage was below the Tier 2 guidance rate required by rule 134(iv). On appeal, the appellants produced an employer's letter, dated after the refusal, increasing the wage and backdating the increase to before the decision. The parties agreed that the appellants met all other requirements and that the appeal should succeed if that evidence was admissible.

The First-tier Tribunal excluded the letter under section 85A of the Nationality, Immigration and Asylum Act 2002 and dismissed the Immigration Rules and Article 8 appeals. The central issue was whether section 85A applied to this settlement application and excluded the wage evidence.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and remade by allowing the appeal under the Immigration Rules. Indefinite leave to remain was directed to be granted to all appellants.

2. Section 85A applied only if its cumulative conditions were met, including that the application was one identified in the Rules as requiring consideration under the points-based system. A rule 134 settlement application was not such an application. Reference in rule 134(iv) to Tier 2 sponsor guidance did not alter its character. Section 85(4) consequently permitted evidence arising after the decision where it was relevant to its substance.

3. The employer's letter was admissible. Its backdating established the claimant's actual wage position at the date of refusal. Since the parties accepted that this satisfied rule 134(iv) and all other requirements, the appeal succeeded.

4. The Tribunal further observed that it was doubtful whether rule 134(iv) applied to a former work-permit holder who never required or held a Tier 2 certificate of sponsorship. It did not decide that point.

5. On the Article 8 issue, the Tribunal considered that the First-tier Tribunal had not adopted the required structured approach. It should have identified a legitimate aim within Article 8(2), then assessed whether refusal was proportionate in the particular circumstances. A reasonable expectation of settlement arising from compliance with the work-permit conditions could found private life deserving respect. The point did not require determination because the Immigration Rules appeal was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal decision for material error of law, and remade the decision by allowing the Immigration Rules appeal and directing a grant of indefinite leave to remain.
• First-tier Tribunal: excluded post-decision wage evidence under section 85A of the Nationality, Immigration and Asylum Act 2002 and dismissed the appeals.