Md Masud Rana v The Secretary of State for the Home Department

Section 85A of the Nationality, Immigration and Asylum Act 2002 restricts post-decision evidence relied on by an appellant in a points-based appeal. It does not prevent the Secretary of State from adducing such evidence, provided the appellant has a fair opportunity to answer it.

A loan is not part of an Academic or Educational Loan Scheme merely because it funds education. The expression denotes a scheme with governmental or other official involvement, collective arrangements for loans, and terms advantageous to students when compared with ordinary commercial lending.

The appellant, a Bangladeshi national, appealed against the refusal of his 2014 application for further leave to remain as a student. The refusal decision was dated 1 September 2015.

The First-tier Tribunal dismissed the appeal. Following unsuccessful permission applications and Cart judicial review proceedings, the Upper Tribunal found a material error of law in the First-tier Tribunal’s decision, set it aside, and remade the appeal.

The appellant relied on a loan from Prime Bank Limited. The central issue was whether it satisfied paragraph 1B(d)(7) of Appendix C to the Immigration Rules as a loan provided as part of an Academic or Educational Loan Scheme.

1. Appeal dismissed. The Upper Tribunal substituted a decision dismissing the appeal after setting aside the First-tier Tribunal’s determination for material error of law.

2. Section 85A of the Nationality, Immigration and Asylum Act 2002 prohibited only an appellant from relying on post-decision evidence in this type of points-based appeal. It did not prevent the Secretary of State from adducing later material. Procedural fairness nevertheless required that an appellant confronted with such material be given an opportunity to answer it, including by an adjournment if necessary.

3. The Tribunal rejected the submission that an Academic or Educational Loan Scheme meant simply a loan for educational purposes. Read in context, the alternatives in paragraph 1B(d)(7) of Appendix C point to government or other official involvement. The word scheme also requires an arrangement concerned with loans collectively, rather than an isolated loan. It will ordinarily provide an advantage to students over ordinary commercial lending, such as favourable interest or repayment terms.

4. The evidence established that the appellant had a genuine Prime Bank loan available for study. It did not establish that the loan was made under the bank’s published educational-loan process. The loan exceeded that process’s ceiling and was instead advanced as a secured overdraft facility. A loan for study was therefore not shown to be part of an Academic or Educational Loan Scheme.

5. The appellant consequently failed to meet the applicable Immigration Rules on the date of decision. The Tribunal added that, even had the appeal succeeded on that issue, it would not have directed a grant of student leave because there was no current confirmation of acceptance for studies.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s determination was set aside for material error of law. The Upper Tribunal remade the decision and dismissed the appeal.
• First-tier Tribunal: Judge Miller dismissed the appeal in a determination sent on 27 September 2016.
• High Court: Cart judicial review proceedings resulted in permission being granted, leading to the reinstatement of the appeal process.