LS (post-decision evidence; direction; appealability) Gambia  UKAIT 00085
Date of hearing: 5 April 2005
Date Determination notified: 19 April 2005
|Secretary of State for the Home Department||RESPONDENT|
1. Save in the case of appeals against decisions of the types listed in s 84(5) (and perhaps where the appeal incorporates a review of the exercise of a discretion) an Adjudicator or the Tribunal is concerned with facts both at and after the date of the decision. 2. The terms of a direction lawfully made by an Adjudicator must be separately appealed if they are to be challenged separately from a challenge to the determination.
"It is submitted that the Adjudicator's assessment of his jurisdiction to consider post-decision evidence in paragraph 15 of the determination is flawed because:
1. S85 of the Nationality, Immigration and Asylum Act 2002 ("The Act") needs to be read in conjunction with s84 of The Act, which sets out the limited grounds upon which one can challenge a decision of the Secretary of State. In particular, in this case the only legitimate challenge was under s84(1)(a) that the decision of the Secretary of State on 10/05/2003 to refuse to vary leave was not in accordance with the law.
It is not in dispute that the Respondent had failed all of his exams taken in December 2002 at the Chartered Institute of Marketing.
2. It is submitted that S85(4) of The Act whilst it gives the possibility for evidence to be considered which concern a matter arising after the date of decision; this is qualified on the basis that such evidence can only be considered when it is relevant to the substance of the decision. It is submitted that the substance of this case is whether the Secretary of State in May 203 was correct under the terms of the Immigration Rules to refuse to vary leave.
It is submitted that the fact the Respondent had subsequently studied further different courses with some degree of success was not relevant to the substantive decision under appeal."
"82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part "immigration decision" means-
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds-
(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c.74) (discrimination by public authorities);
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by the immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.
85. Matters to be considered
(4) On an appeal under section 82(1) or 83(2) against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10-
(a) subsection (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.
86. Determination of appeal
(1) This section applies on an appeal under section 82(1) or 83.
(3) The Adjudicator must allow the appeal in so far as he thinks that-
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercise in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
(5) In so far as subsection (3) does not apply, the adjudicator shall dismiss the appeal."
"101. Appeal to Tribunal
(1) A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.
87. Successful appeal: direction
(1) If an adjudicator allows an appeal under section 82 or 83 he may give a direction for the purpose of giving effect to his decision.
(4) A direction under subsection (1) shall be treated as part of the determination of the appeal for the purposes of section 101."
C M G OCKELTON