ASYLUM AND IMMIGRATION TRIBUNAL

LS (post-decision evidence; direction;  appealability) Gambia [2005] UKAIT 00085

THE IMMIGRATION ACTS

Heard at: Field House					Date of Hearing: 5 April 2005            
Promulgated: 19th April 2005                         

Before:

Mr C M G Ockelton (Deputy President)
Mr L V Waumsley (Senior Immigration Judge)
Professor A Grubb (Senior Immigration Judge)

Between

[2005] UKAIT

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant:		Ms K Mustapha of K M Immigration Services
For the Respondent: 	Mr P Deller, Home Office Presenting Officer

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.

DETERMINATION AND REASONS

1.	The Appellant, a citizen of Gambia, applied to the Respondent for leave to remain in the United Kingdom as a student.  The Respondent refused.  The Appellant appealed to an Adjudicator, Mr J K H Rintoul, who allowed the appeal and directed that the Appellant be granted leave to remain as a student.  The Respondent applied, and was granted, permission to appeal against that determination to the Immigration Appeal Tribunal.  Following the commencement of the appeal provisions of the 2004 Act, the grant of permission takes effect as an Order for reconsideration of the Appellant’s appeal, limited to the grounds upon which permission to appeal was granted.

2.	The Appellant’s application was made on 2 April 2003, at which time the Appellant had been in the United Kingdom for about eighteen months.  The Appellant sought permission to remain in the United Kingdom for a one year full-time course ending on 30 June 2004.  The Respondent took a considerable time to consider the Appellant’s application, but eventually refused it on 8 March 2004.  The reason for the refusal was that the Appellant had achieved only marks graded as “poor failure” in all four papers taken at the end of the course for which he had been originally admitted to the United Kingdom, and therefore the Respondent considered that he did not have the ability to follow his proposed course of study.  (Despite the Appellant’s record of failure, the Respondent did not cite paragraph 60(v) as a reason for the refusal.)

3.	The Appellant appealed.  The appeal was heard by the Adjudicator on 20 September 2004.  By that time, the Appellant had undertaken the course for which he had sought leave to remain.  He had made good progress, had passed all his exams and had been accepted for study on a further (degree) course, from which he was exempted from the first year as a recognition of the diploma he had obtained from the course he had now passed.  The Adjudicator heard and accepted the Appellant’s explanation that his failure in the earlier course had been attributable to distress at his father’s illness and death.  The Adjudicator considered the terms of section 85 of the 2002 Act (which we set out below) and specifically took into account not merely the requirements of paragraph 57 of the Immigration Rules but also that of paragraph 60(v) to which we made reference above.  He concluded that the Appellant was entitled to succeed if, at the date of the Adjudicator’s consideration of the matter, he met the requirements of the Immigration Rules.  The Adjudicator concluded that at that date he did meet those requirements.  It is a material part of his decision that (whatever might be said about the ability that the Appellant had always had, as demonstrated by his recent results) he was only able to meet all the requirements of the Immigration Rules, including paragraph 60(v) because he had now passed his exams.  The Adjudicator allowed the Appellant’s appeal under the Immigration Rules and directed that he be granted leave to remain as a student, for a period not specified by the Adjudicator.

4.	The Secretary of State’s grounds of appeal, on the basis of which permission was granted, are as follows:

“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.”

5.	Three separate points arose during the hearing.  We heard Mr Deller on all of them, but needed to call on Ms Mustapha only in respect of the last.

6.	The first is the point squarely raised by the grounds.  In determining an appeal against an immigration decision, is the Adjudicator limited to circumstances pertaining at the date of the decision, or should he also take into account circumstances or facts coming into existence after the date of the decision?  As Mr Deller pointed out, the drafting of the 2002 Act might be regarded as not entirely clear on that point.  We will set out the relevant provisions.

“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.”

7.	The present appeal is characterised as an appeal against a decision of the kind specified in s 82(2)(d) on the ground specified in s 84(1)(a).  The scheme of tenses in ss 84 to 86 is, however, very far from clear.  In considering the present appeal, the Adjudicator was to be concerned with the ground of appeal that the decision is not in accordance with immigration rules, but apparently was to allow the appeal only if the “decision … was not in accordance with the law (including immigration rules)” (s 86(3)(a)).  We may note that further tensions of tense would arise if the ground were that specified in s 84(1)(c) or (e), both of which are similarly expressed in the present tense, or s 84(1)(g), which refers to the future, but all of which are similarly governed by s 86.  On the other hand, where the decision which is the subject of the appeal in itself involved a discretion, the wording of s 84(1)(f) is, on its face at least, consistent with the tense of s 86(3)(b).  On the other hand, despite the wording of s 86, it is accepted that in determining an asylum or human rights appeal, an Adjudicator is required to consider the facts at the date he decides the appeal, and must not confine himself to the facts as they were at the date of the decision which is being appealed.  So it may be that the past tense in s 86(3)(a) at any rate cannot be taken literally.   

8.	It appears to us that little assistance is to be gained from a minute examination of the tenses in ss 84 and 86.  We pass to s 85.  Mr Deller readily acknowledged that there was a distinction between the process envisaged by s 85(5) and that envisaged by s 85(4).  He vividly characterised s 85(5) as “stopping the clock” in respect of the facts to be taken into account in an appeal against refusal of entry clearance or a certificate of entitlement.  Using the words of the grounds, he asserted that in other cases not concerned with refugee status or human rights, the words “the substance of the decision” in s 85(4) meant the correctness of the decision itself at the date it was made.  He was, however, unable to explain why the same words should be interpreted differently in the case of an asylum or human rights claim, so as in those cases to apply not to the decision at the date it was made but to its effect at the time of the hearing before the Adjudicator.  Nor could he explain why, if the interpretation sought by the Secretary of State was correct, the type of case with which we are concerned at present was not specifically included within s 85(5) instead of being left to be dealt with by s 85(4).  

9.	In our view, the Secretary of State’s argument is entirely untenable.  Whatever may have been the position before the 2002 Act, s 85 draws a clear line between refusals of entry clearance and certificate of entitlement and all other cases.  Only in the former two types of case does the “clock stop” so that evidence of circumstances appertaining after the date of the decision cannot be taken into account.  In all other cases the Adjudicator is under no such restriction, and it follows that if an Appellant claims that the decision “is not in accordance with immigration rules”, he is entitled to adduce evidence as to the present position, even if it is clear (or, as in the present appeal, conceded) that the requirements of the Immigration Rules were not met at the date of the decision itself.  (Although evidence that itself arises after the date of the decision is admissible if it is relevant to circumstances at that date:  DR* (Morocco) [2005] UKIAT 00038.)

10.	This interpretation accords with the “one stop” approach to in-country appeals.  If an Adjudicator is limited to circumstances appertaining at the date of the decision, he is at risk of producing a determination which, however correct, is of no practical interest, because the Appellant’s circumstances may have changed since that date.  It is because s 85 gives the Adjudicator the power in in-country appeals to look at all relevant circumstances at the date he makes his decision, that the appellate process is able meaningfully to settle the Appellant’s rights in a single process, following which, if the Appellant is unsuccessful, the Respondent can proceed immediately to take steps to secure the Appellant’s departure, without there being any risk that the Appellant has rights which have not been determined, because they arose since the date of the decision, and with which the Adjudicator therefore could not be concerned.

11.	For the foregoing reasons, we reject the Secretary of State’s grounds of appeal.

12.	The second point raised at the hearing relates to the direction given by the Adjudicator and it is convenient to record here the observations we made at the hearing.

13.	The Adjudicator’s direction that the Appellant be granted leave to remain, with no specified period, and apparently in recognition that he had now begun a further course of study for which no application had been made, might well cause concern.  The question is whether we could or should consider any arguments in relation to it.  The Adjudicator’s direction is akin to the order of a court, whereas the rest of his determination is akin to the judgment of a court.  If we had allowed the appeal against the determination, on the grounds argued by the Secretary of State, the direction would automatically have ceased to have effect.  That is because an Adjudicator has power to make a direction only if he allows the appeal.  Where the Adjudicator is not shown to have erred in allowing the appeal, however, the appropriateness of the direction is a separate issue.

14.	The relevant statutory provisions are as follows:

“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.”

15.	What is absolutely clear from those two sections is that the parties can appeal specifically against the terms of the direction.  In a case such as the present where the Secretary of State has chosen not to appeal against the terms of the direction the position is that if the Adjudicator is not shown to have erred in allowing the appeal, the direction must stand in the terms in which the Adjudicator made it.

16.	The third issue which arose at the hearing of the appeal is not mentioned in the grounds, but arises from the underlying facts.  As we have already indicated, the application which was the subject of the refusal, and of the Adjudicator’s determination, was made on 2 April 2003.  At that time, the Appellant had no leave to remain in the United Kingdom:  his leave had expired on 31 March 2003.  Examination of the Appellant’s passport at the hearing confirmed that date.  There is no process by which leave to remain in the United Kingdom can be granted other than in writing as required by s 4(1) of the 1971 Act.  Nobody has pointed to any writing extending the Appellant’s leave for the necessary two days.  The consequence of this is very serious indeed.  Although when making his decision in this case, the Respondent indicated that the Appellant had a right of appeal, that was not correct.  A refusal of leave to remain in respect of a person who does not have leave at the time the decision is made is not a decision appealable under s 82(2) of the 2002 Act.  That is because the lack of extant leave means that the decision is not a refusal to vary existing leave:  and, in addition, if a person has no extant leave it is not the case that the “result of the refusal is that the person has no leave to enter or remain”:  he had no such leave even before the refusal.  Despite the somewhat lengthy process in this case, the position is that the Appellant never had any right of appeal.  

17.	Ms Mustapha told us that she was unable to adduce any argument which might persuade us that the Appellant (as we shall continue to call him) should be able to preserve the effect of the Adjudicator’s determination in those circumstances.  We have nevertheless given the matter considerable thought, in the light particularly of Rule 62(7) of the 2005 Procedure Rules, which apparently limits the grounds of this reconsideration.  As the Adjudicator was not hearing an appeal, we formally have no jurisdiction either:  but that has the additional consequence that Rule 62(7) cannot apply to these proceedings.  Insofar as we have power to do so, we declare that the decision against which the Appellant purported to appeal was not a decision carrying a right of appeal under the 2002 Act;  that the Adjudicator accordingly had no jurisdiction;  and that his determination and direction can have no effect.  To that extent, the parties should proceed as though the Secretary of State’s appeal had been allowed in full and we had substituted a determination dismissing the Appellant’s appeal to the Adjudicator.

C M G OCKELTON
DEPUTY PRESIDENT

          Date: