ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
IA/14881/2011, IA/16337/2011 and IA/11952/2011
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL
LORD JUSTICE MOORE-BICK
LORD JUSTICE SULLIVAN
| MAHBUB ALAM (1)
FAHAD ANWAR (2)
BERENICE EGHAN (3)
|- and -
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
Harshaka Kannangara (instructed by AA Immigration Lawyers) for Appellant (2)
Shaima Ammal for Appellant (3)
Jonathan Swift QC and Mr. Alan Payne (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 29th & 30th May 2012
Crown Copyright ©
Lord Justice Sullivan:
"Thank you for the application by the above-named on Form Tier 4. It will now be passed to a casework unit.
If there is any problem with the validity of the application, either because of the fee paid or another aspect of the application, a caseworker will write to you as soon as possible to advise what action you need to take to make a valid application.
You should expect to receive further correspondence from us giving you instructions for the next steps in making your application .
We would appreciate it if you did not enquire about the progress of the application before you hear from us. It is not possible to make enquiries in person about the progress of an application at any of our Public Enquiry Offices, Biometric Enrolment Centres or via our Immigration Enquiry Bureau .."
The PBS Scheme
By way of example, paragraph 118 of Appendix A states that:
"118. No points will be awarded for a Confirmation of Acceptance of Studies unless: (a) the applicant supplies, as evidence of previous qualifications, specified documents that the applicant used to obtain the offer of a place on a course from the Sponsor ." (emphasis added)
Paragraph 13 of Appendix C states that:
"13. Funds will be available to the applicant only where the specified documents show . That the funds are held or provided ..". (emphasis added)
"10. To claim points, a student must send the required documents listed in this guidance when he/she makes his/her application (paragraph 245AA of the Immigration Rules). We will only accept the documents listed in this guidance as evidence (proof)."
Under the heading "Claiming points for a Confirmation of Studies", paragraphs 97 and 98 of the Guidance state:
"97. If the Tier 4 sponsor has assessed the student's qualifications in order to assign the Confirmation of Acceptance for Studies, the student must send us these qualifications with their application. For each qualification listed, the student must provide either:
i. The original certificate(s) of qualification:
Each document must be the original (not a copy) and must clearly show the:
- applicant's name;
- title of the award;
- date of the award; and
- name of the awarding institution,
- We will not accept original provisional certificates
ii - The original transcript of results
Each document must be the original (not a copy) and must clearly show the:
- Applicant's name;
- Name of the academic institution;
- Course title; and
- Confirmation of the award.
98. The student will need to know what evidence his/her sponsor has included on his/her Confirmation of Acceptance for Studies so he/she can include it with her application. The student must get this information directly from the Tier 4 sponsor before making the application. The UK Border Agency will not provide this information to the student."
Paragraphs 150 157 of the Guidance set out in detail the documents that a Tier 4 (General) student applicant must produce to show that he/she has held the requisite level of funds for a consecutive 28 day period ending no more than a month before the application.
"K3. The student must send us the evidence we need to support his/her application. He/she must get this information from his/her Tier 4 sponsor.
The student must send us each of the original certificate(s) of qualification and/or original transcript(s) of results that have been used as the basis of the offer of the place as explained by their Tier 4 sponsor.
Please tick to confirm that all of the qualification certificates and/or original transcripts of results that have been used as the basis of the offer of the place have been provided with the application."
Part L of the form deals with maintenance (Funds). Question L24 asks the student:
"L24. Please tick to confirm the documents submitted as supporting evidence to show the student has access to the required amount of money for maintenance and funds.
Personal bank or building society statements
Building society pass-book
Letter from a bank or building society confirming funds
Letter from a regulated financial institution confirming funds
Letter from a regulated financial institution confirming the agreement of a loan
No money owed, no evidence needed"
The Statutory Scheme
"(4) On an appeal under section 82(1) ..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."
"19 Points-based applications: no new evidence on appeal
(1) For section 85(5) of the Nationality, Immigration and Asylum Act 2002 (c.41) (appeal: new evidence may be considered: exception) substitute
"(5) But subsection (4) is subject to the exceptions in section 85A."
(2) After section 85 of that Act insert
85A Matters to be considered: new evidence: exceptions
(1) This section sets out the exceptions mentioned in section 85(5).
(2) Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.
(3) Exception 2 applies to an appeal under section 82(1) if
(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),
(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a "Points Based System", and
(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).
(4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it
(a) was submitted in support of, and at the time of making, the application to which the immigration decision related.
(b) Relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),
(c) Is adduced to prove that a document is genuine or valid, or
(d) Is adduced in connection with the Secretary of State's reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of "points" under the "Points Based System"."
"(1) Section 17 comes into force on the day on which this Act is passed.
(2) The other preceding provisions of this Act shall come into force in accordance with provision made by the Secretary of State by order.
(3) An order
(a) May make provision generally or only for specified purposes,
(b) May make different provision for different purposes, and
(c) May include incidental, consequential or transitional provision.
(5) An order shall be made by statutory instrument."
In his submissions on behalf of Mr. Alam, Mr. Malik referred to sub-section 59(4) which provides:
"(4) In particular, transitional provision ..
(d) in the case of an order commencing section 32
(i) may provide for the section to apply to persons convicted before the passing of this Act who are in custody at the time of commencement or whose sentences are suspended at the time of commencement "
Section 32 provides for the automatic deportation of "foreign criminals": persons who are not British Citizens who are convicted of an offence and sentenced to imprisonment for at least 12 months.
"Commencement of the UK Borders Act 2007
2. Section 19 (Points-based applications: no new evidence on appeal) of the UK Borders Act 2007 shall, subject to article 3, come into force on 23rd May 2011.
3. (1) The amendment made to the Nationality, Immigration and Asylum Act 2002(2) by section 19 of the UK Borders Act 2007 will not have effect in relation to an appeal in respect of which a hearing at the First-tier Tribunal of the Immigration and Asylum Chamber has taken place before 23rd May 2011 and which is still pending.
(2) For the purposes of this article, a "hearing" is where one or more Immigration Judges hear an appeal made under section 82(1) of the Nationality, Immigration and Asylum Act 2002 against a decision of the Secretary of State, at the First-tier Tribunal of the Immigration and Asylum Chamber and includes case management review hearings.
(3) For the purposes of this article, an appeal is "pending" when it has been instituted under section 82(1) of the Nationality, Immigration and Asylum Act 2002 but has not yet been finally determined, withdrawn or abandoned or has not lapsed under section 99 of that Act."
"25. Closer inspection of article 3 of the Order reveals a number of remarkable features. The first is that its draftsman appears to have had little knowledge of the system of immigration appeals. He twice uses the phrase "at the First-tier Tribunal of the Immigration and Asylum Chamber". The use of the preposition "at" is strange; but the remaining words of the phrase are stranger still, for they describe an institution which does not exist and never has existed. The whole point of the reforms of the 2007 Act, to which immigration appeals were made subject in 2010, is that instead of there being individual specialist Tribunals with their own individual arrangements for appeals to a further Tribunal, there is a First-tier Tribunal and an Upper Tribunal, each of general jurisdiction but divided into Chambers. The Chambers are Chambers of each Tribunal: the Tribunals are not Tribunals of each Chamber. The phrase is not merely technically wrong: it indicates a complete misunderstanding of the system
26. Secondly, although the draftsman goes to such lengths to define what he means by "a hearing" (a matter on which we make further observations below), he defines it by reference to the activities of "one or more Immigration Judges". Immigration Judges comprised some (but by no means all) of the judiciary of the Asylum and Immigration Tribunal. The title is still used by courtesy, for those who held such office in the Asylum and Immigration Tribunal, but it now has no statutory basis. On 15th February 2010 all holders of the title of Immigration Judge became, instead, holders of the title of "Judge of the First-tier Tribunal". The draftsman appears to have been unaware of this development. The Explanatory Note refers to "appeals remitted to the First-tier Tribunal from the Upper Tier of the Tribunal". So far as we are aware, there has never been an "Upper Tier" of any Tribunal. There is, however, an Upper Tribunal."
"35. As we have indicated, the only transitional provision is the exception for cases in which there has been a hearing prior to 23 May 2011. As we have also observed, there is no such thing as the "First-tier Tribunal of the Immigration and Asylum Chamber". It follows that there is no case in which the transitional provision in article 3 of the Order could apply.
36. That means, simply, that in effect article 2 of the Order stands by itself. It brings s19 of the 2007 Act into force on 23 May 2011. In interpreting that provision, we need to decide the extent to which it applies to appeals pending on that date, there being no transitional provisions relating to any events that could actually happen."
"37. The general rule is that a statute (or statutory instrument) does not have retrospective effect unless either it relates to procedure only, or the retrospective effect is clearly intended. The classic description or definition in Craies on Statute Law (6th edition, p386) is that a statute is retrospective if it "takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new disability in respect to transactions or considerations already past". There can be little doubt that the change in the law introduced by the Commencement Order imposes a disability in respect to transactions already past, where, before commencement, an applicant has made, and paid for, his application.
38. The retrospective effect is clearly intended, but, for the reasons we have given, it is very imperfectly achieved. In our judgment it is clearly right that the Order should be applied retrospectively only insofar as clearly specified. If authority for that is required, it can be found in Re "Wonderland" Cleethorpes  AC 58, 71-2. In the circumstances of the present case it receives support from the principle that a statute should not be given an interpretation that will cause real injustice, if that can be avoided: Waugh v Middleton (1853) 8 Ex 352; and see, for example West Midland Baptist (Trust) Association Inc v Birmingham City Corporation  2 QB 188. 210.
39. On its face, s19 of the 2007 Act introduces changes that relate to procedure. But we need to consider their effect rather more widely. As few have said, the previous regime had the effect that in order to meet the requirements of the Immigration Rules, an application could remedy defects in his application by evidence produced on appeal. We do not think that it is a distortion of language to regard an applicant's ability to do so as a substantive right in relation to the application process, rather than as merely a matter relating to the procedure on appeal. Certainly the withdrawal of the ability to supplement defects in this way has an instant effect on the substantive rights of applicants whose appeals are pending: many of them would previously have been able readily to show that they had met the requirements of the rules, whereas, after the change, the fact that they did meet the requirements of the rules at the date of their application becomes irrelevant."
"41. For these reasons it appears to us that Article 2 of the Commencement Order should be construed as affecting substantive rights not merely procedure, and that Article 3 should be interpreted narrowly. Article 2 should not be interpreted retrospectively save in relation to any cases that might be found to fall within the words of Article 3. The result is that, in order to avoid any other retrospective effect, Article 2 is to be interpreted as having effect only where the appellant's application to the Secretary of State was made on or after 23 May 2011."
The Grounds of Appeal
Although Mr. Malik did not adopt the entirety of the Upper Tribunal's reasoning in Shahzad (see below, paragraph 28), he submitted that it was correctly decided. Properly construed section 85A had no application in relation to an appeal to the Tribunal in respect of a refusal of an application which had been made to the Secretary of State before 23rd May 2011, alternatively it had no application to an appeal which had been made to the Tribunal before 23rd May 2011.
Properly construed section 85A applied only to appeals to the Tribunal, and did not apply to appeals from the Tribunal to the Upper Tribunal.
The "application" referred to in section 85A (4)(a) included "the additional grounds for the application" submitted by an appellant in response to a notice served by the Secretary of State under section 120 of the 2002 Act.
The common law duty of fairness imposed an obligation on the Secretary of State to contact an applicant in the position of Mr. Alam when specified documents were missing from his application, and to give him an opportunity to rectify the omission, before reaching a decision on his application.
The Upper Tribunal erred in dismissing Mr. Alam's appeal under article 8 because it failed to recognise that his was not a "near miss", but a "no miss" case under the Rules.
Mr. Anwar was entitled to rely on document F3 before the Tribunal, even if it had not accompanied his application. He was entitled to adduce it under paragraph (c) of subsection 85A(4) in order to prove that the CAS was valid.
In view of UKBA's letter dated 5th April 2011 to Mr. Anwar, it was unfair for the Secretary of State to refuse Mr. Anwar's application without notifying him that the application was not valid because all necessary documents had not been submitted, so that he could remedy any omission before a decision was reached on his application.
The date of the Tribunal hearing was an administrative decision. Miss Eghan had received a Notice of Hearing before the 23rd May 2011 which required her to submit all of the documents on which she relied (which included the bank statements) not later than 5 days before the hearing date. In these circumstances it was unfair, and a retrospective alteration of Miss Eghan's rights under the appeal process, to alter the law so that the Tribunal was not entitled to consider the documents which it had ordered Miss. Eghan to produce. The Notice of Hearing should be treated as the start of the hearing for the purpose of article 3 of the order.
"We appreciate that our interpretation of the Commencement Order is bold and, in addition, we have not reached it on the basis of the submissions Mr. Malik made to us. Anyone seeking to defend any other interpretation, however, will have to explain why any of the results set out in paragraphs 27 to 33 above either were intended or are desirable."
" 199 ..As can be seen from the statement of Wright J in In re Athlumney  2 QB 547, 552 which I quoted above, changes in matters of pure procedure have been treated differently. Wilde B stated the position most starkly in Wright v Hale (1860) 6 H & N 227, 232: "where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act." The justification for treating matters of pure procedure differently was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62, 69: "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done."
" . an appropriate test might be formulated along these lines: would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be "so unfair" that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions."
"12 In my view, the reference in subsection (4A) to an appeal under section 82(1) has to be read with the identification of the period during which an appeal under section 82(1) remains pending as identified in (1) and (2) of section 104. The appeal remains alive throughout the period until it is finally determined or abandoned. Subsection (2) identifies that period during which it is not finally determined by specific reference to the period pending final determination of an appeal to the Court of Appeal: see section 104(2)(b).
13. In those circumstances it seems to me impossible to confirm the construction of what is meant by an appeal under section 82(1) to an appeal to the First Tier Tribunal without incorporating within it all those circumstances identified in the earlier part of the same section, namely an application for permission to the Court of Appeal that is awaiting determination or permission to appeal and the period up until final determination of that appeal."
In my judgment, this approach to the meaning of "an appeal under section 82(1)" applies with equal force to the provisions of section 85A.
"41. In AS the Court was not concerned with decisions made by the Respondent under the "Points-based" system of determining applications for leave to remain. In such cases there is a "fixed historic time-line". The effective operation of a points based system requires the points to have been accumulated at the date of the Secretary of State's decision."
"UK Border Agency caseowners employ a measure of flexibility when considering PBS applications, for example requesting further documentation or clarification where appropriate. In addition a validation stage is being trialled whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected. These policies aim to provide excellent customer service and reduce the number of applications falling for rejection."
In its response to the 34th 37th Reports of the Public Accounts Committee, which had recommended that UKBA should "ensure that its staff take a consistent and proactive approach to correcting minor errors and omissions" in applications, the Government said:
"6.2 The Agency has already made changes to its evidential flexibility policy. Revised instructions have been circulated to ensure a consistent approach in decision making is adopted across all the case working units both in the UK and overseas. The revised arrangements mean that where minor omissions have been made and applicants have been asked to provide the information needed to determine their application, they will be given seven days to provide the information requested where this is necessary. This same evidential flexibility approach has also been introduced to sponsor licence applications.
6.3 In addition to the evidential flexibility arrangements, the Agency has introduced further measures to allow applicants applying in the UK to correct minor errors or omissions earlier in the application process. This approach was trialled on the Tier 1 (General) route in order to avoid rejection of applications prior to the closure of the route. The Agency plans to extend this approach across all temporary migration routes in 2011.
6.4 All applicants wishing to stay in the UK under the System are required to submit all relevant evidence in support of their application at the time the application is made. The Agency is committed to helping migrants and sponsors to get their application s right first time wherever possible. Over the next 12 months, the Agency will be reviewing and improving all guidance on offer to users of the System and will extend further the use of on-line forms to make the application process easier. As part of the on-line process, a check list will be produced to clarify the documentation the applicant must provide as part of their application. Additional call centre support for on-line applicants will also be offered."
UKBA choosing to make improvements to its decision making process as a matter of good administrative practice is one thing, the Court imposing a general legal duty to the same effect upon the Secretary of State is a very different matter. I am not persuaded that the statutory scheme is so unfair that the imposition of such a duty can be justified.
Lord Justice Moore-Bick:
Lord Justice Maurice Kay: