EA (Section 85 (4) explained) Nigeria  UKAIT 00013
Date of hearing: 8 August 2006
Date Determination notified: 30 January 2007
|Secretary of State for the Home Department||RESPONDENT|
The effect of s85(4) of the 2002 Act (as expounded in LS (Gambia)  UKAIT 00085 ) is not to make the Tribunal a primary decision-maker. The focus must always be on the decision actually made in response to the appellant's application. An in-country appellant does not succeed by showing that he meets the requirements of the Immigration Rules at the date of the hearing. He can succeed only by showing that the application that he made would be successful at the date of the hearing.
"I accept the respondent's submissions that, as Anfell College was not registered with the Department for Education and Skills [the] application was bound to fail as the appellant was unable to meet all the criteria of paragraph 57 of HC 395. The decision of the Secretary of State was thus correct. I do not accept counsel's argument that the appellant's subsequent enrolment at London Metropolitan University [sic: no doubt Holborn college is intended] retrospectively fulfilled the requirements of Rule 57. At the time of decision the Secretary of State was correct."
"On an appeal under section 82(1) or 83(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."
Section 85(5) provides, by way of contrast, that an appeal against entry clearance or a certificate of entitlement (that is to say, an out-of-country appeal) is to be decided by reference only to evidence relating to the circumstances at the date of the decision. As the Tribunal pointed out in LS (Gambia) s85(4) applies, without any difference of wording, to asylum and human rights appeals and in-country immigration appeals. It follows that, under the 2002 Act, they are governed by the same principles so far as the admissibility of evidence is concerned: that is what s85(4) is about.
C M G OCKELTON