Bilous v Secretary of State for the Home Department

The Secretary of State is not generally required to investigate or correct information in a Tier 2 application where the form contains an incorrect salary and nothing indicates that the information is false, mistaken or incomplete. The evidential flexibility policy is not engaged merely because the evidence supplied is wrong. Under paragraph 2 of the Immigration Rules, Article 8 may require consideration on the Secretary of State’s own initiative where the material properly before her could sustain an Article 8 claim. Bare evidence of residence and private life will not necessarily make such a claim sufficiently obvious. The strength of the Article 8 case must be assessed independently of the application under the immigration rules.

The appellant, a Ukrainian national who had lived in the United Kingdom since the age of 14, sought leave to remain as a Tier 2 general migrant to take employment. Her sponsor’s certificate of sponsorship stated a salary of £22,000, although the applicable requirement was £22,300. A corrected certificate was obtained only after the Secretary of State had refused the application, by which time the appellant was an overstayer.

The Upper Tribunal refused permission for a claim for judicial review in a determination promulgated on 24 September 2014. The appellant challenged that conclusion on two grounds: whether the Secretary of State had been required to make further inquiries about the salary, and whether she had been required to consider Article 8 of the Convention of her own motion.

Application dismissed.

1. Salary information. The Secretary of State was entitled to proceed on the basis that the application form and certificate of sponsorship had been properly completed. The employer’s communication about the salary error occurred only after the decision. Nothing had alerted the Secretary of State to a possible mistake, false information or missing information concerning salary. There was therefore no obligation to raise the issue with the employer or to make further inquiries. The evidential flexibility policy was not engaged because this was not a case of missing information which might require flexibility; the evidence provided was simply wrong.
2. Article 8. Paragraph 2 of the Immigration Rules envisages that, where material properly before the Secretary of State could sustain an Article 8 claim, there will be circumstances in which she must consider that issue of her own motion even though the applicant has not raised it. The obligation is not triggered by every case involving a substantial period of residence or the development of a private life. The material here was insufficient to make an Article 8 claim obvious or capable of being sustained without a specific claim. The direction to make a fresh Article 8 application did not strengthen the underlying case, even if the appellant’s overstayer status made that route practically ineffective.
3. The hardship caused by the sponsor’s mistake could not alter the strength of the Article 8 case. Article 8 had to be assessed independently of the application under the rules governing employment by the sponsor. Neither ground disclosed an error of law with sufficiently strong prospects to justify the matter proceeding further.

• Court of Appeal (Civil Division): On 18 November 2015, Lord Justice Elias dismissed the application, holding that the Upper Tribunal had not erred in refusing permission for judicial review.
• Upper Tribunal: Determination promulgated on 24 September 2014. Permission for the judicial review claim was refused.
• Secretary of State for the Home Department: The application for leave to remain as a Tier 2 general migrant was refused because the certificate of sponsorship stated an insufficient salary.