Muhammad Shahzad & Ors v The Secretary of State for the Home Department

Article 2 of the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011 brought section 19 of the UK Borders Act 2007 into force only for applications made on or after 23 May 2011. Section 85A of the Nationality, Immigration and Asylum Act 2002 therefore did not prevent appellants who had applied before that date from relying on later evidence in a points-based appeal.

The restriction on new evidence affected substantive rights and was not to be given retrospective effect beyond what the defective transitional provision clearly achieved. A section 120 statement cannot convert omitted evidence into a fresh application. The restriction applies where the Upper Tribunal remakes a First-tier Tribunal decision. Failure to supply required evidence with an application is not inherently unfair, and later evidence cannot establish that a requirement was met at the application date if it was not then met.

Four linked appeals concerned refusals of applications under the points-based system. The appellants sought to rely before the First-tier Tribunal on documents not supplied with their applications. The judges treated section 85A of the Nationality, Immigration and Asylum Act 2002 as barring that evidence and dismissed the appeals.

Permission to appeal was granted because it was arguable that section 85A had been applied incorrectly. The common issue was the effect of Article 2 and Article 3 of the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011 on applications made before 23 May 2011. Further issues concerned section 120, remaking by the Upper Tribunal, fairness, and Article 8 of the ECHR.

1. Appeals allowed in part. The Upper Tribunal set aside the decisions dismissing the appeals of Mr Shahzad, Mr Patel and Mrs Patel, and substituted decisions allowing them. Mr Khan’s appeal was dismissed.

2. Article 3 of the Commencement Order was incapable of applying on its terms because it referred to a non-existent institution, namely the “First-tier Tribunal of the Immigration and Asylum Chamber”. It did not create an effective transitional category. Article 2 was therefore construed without retrospective effect except where Article 3 could actually apply.

3. The amendment made by section 19 of the UK Borders Act 2007 was not merely procedural. Before commencement, an applicant could use evidence on appeal to show that the requirements of the Immigration Rules had been met at the relevant historical date. Removing that ability immediately affected substantive rights in a paid-for application. The presumption against retrospectivity, reinforced by the need to avoid real injustice where possible, required Article 2 to apply only to applications made on or after 23 May 2011.

4. Accordingly, section 85A did not exclude the appellants’ post-application evidence. The First-tier Tribunal should have considered it. The additional documents established the required earnings in the Shahzad and Patel appeals, so those appeals succeeded. Mr Khan’s later material did not show that he possessed the required qualification when he applied, and was therefore irrelevant to his eligibility.

5. A section 120 statement raises additional grounds of appeal; it is not a fresh application to which omitted supporting evidence can be attached. The Upper Tribunal also held that section 85A applies when it remakes a decision, because section 12(4) of the Tribunals, Courts and Enforcement Act 2007 permits it to make the decision available to the First-tier Tribunal.

6. There was no common-law unfairness in requiring an applicant to submit the evidence required by the applicable immigration rule with the application. Nor did Article 8 convert a failure to meet that evidential requirement into a disproportionate interference. Mr Khan had no arguable Article 8 claim on the facts.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeals of Mr Shahzad, Mr Patel and Mrs Patel after setting aside the First-tier Tribunal decisions. Dismissed Mr Khan’s appeal because the evidential error was immaterial.
• First-tier Tribunal: Dismissed the points-based appeals after treating section 85A of the Nationality, Immigration and Asylum Act 2002 as excluding post-application evidence.