England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		6 May 2015

1. LADY JUSTICE RAFFERTY: This is an appeal against the 12 June 2014 decision by the Upper Tribunal Judge who refused an application for permission to appeal against the 11 April 2014 decision of the Deputy Upper Tribunal Judge who had dismissed the Applicant's appeal.
2. The sole issue identified by Mr Ahmad, who appears on his behalf today, is whether the Applicant met the requirements of paragraph 245DDD(g) of the Immigration Rules. Permission to appeal was refused on the paper by Longmore LJ on 3 November 2014.
3. On 19 July 2013, the Applicant made a combined application for leave to remain as a Tier 1 (Entrepreneur) migrant under the points-based system. His application was refused in a letter dated 13 September 2013.
4. He provided documents in support of the registration of his business, which he suggested was on 20 May 2013, and support for the contention that that was within three months from the date of making the application of 19 July 2013. The documents included a certificate of incorporation, a copy of a memorandum of association, a print-out from a website showing a business address, a self-assessment summary and bank statements which showed the business address.
5. The court was told that he was not advised by the consultant he instructed that he should provide the document in issue. He realised, and wrote on 6 August 2013 to the Home Office asking permission to send the relevant document.
6. In an e-mail of 4 September 2013 from the UK Border Agency caseworker he read that he should send any documents on which he sought to rely within 7 working days. By special delivery on 10 September 2013 he sent a Companies House report dated 23 July 2013 and a trade agreement and the consultancy agreement, received the next day.
7. The first decision in the matter was promulgated on 12 February 2014 and read, where relevant, that the report, complying with the relevant criteria in the Rules which obliged him to supply all relevant documentation on which he relied, had to be submitted with the application. As this was not so, his application under the Rules was sure to fail.
8. The Upper Tribunal, refusing leave, said, where relevant:

"There is a provision for late submission. However, the document in question here is not one missing from a sequence. Indeed, it was not in existence at the time of the application at all, as the date upon it shows. That it could have been obtained earlier is not the issue. The Applicant did not obtain it until after the application was submitted, so it cannot be described as a document omitted by the Applicant at the time. The Applicant argues that the Respondent provided him with a opportunity post-application to supply the document and consequently that it should have been taken into account. His difficulty with that argument is that e-mail providing evidence of the request was not before the first instance judge, but in any event, the notion that providing him with an opportunity to supply a document requires the Respondent to overlook the attached fails as unsustainable."

Rule 245AA, documents not submitted with applications, reads, where relevant:

"[The Respondent] will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).

(b)... Some of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing).."

9. Grounds of appeal are that the court fell into error in failing to take into account MN (Sudan) [2014] UK Upper Tribunal 1055 AC. The judge is said to have ignored that authority for a defect or impropriety of a procedural nature, possibly amounting to a material error of law.
10. Additionally, the Applicant also relies on E v R [2004] EWCA Civ 49 to make good the proposition that an error of law may have occurred when some material evidence, absent any fault in the first tribunal, was not considered. In the index case, the contention is that there was correspondence inter partes which gave the Applicant the impression that there would be consideration of late supplied documents.
11. The next ground is that there was a failure of both first instance and Upper Tribunal judiciary to give weight to the evidential flexibility policy. The Upper Tribunal is sadi to have reached the wrong conclusion about the printing of bank statements after the relevant period in that printing 2 days after the date of the application did not preclude the registration of the business within the required timescale. It is suggested that this business was without doubt registered on 20 May 2013.
12. Next, it is said there was a failure to take into account his provision of a certificate of incorporation of 20 May 2013 and of a memorandum of association, and a failure to give adequate reasons for rejecting that evidence.
13. Next, he relies upon what he suggests is a fatal error of law in the decision that the current appointment report had to be within three months prior to the date of application. That ground adds nothing.
14. Next, a suggested error of law in concluding that the report postdates the application similarly adds nothing.
15. The Upper Tribunal Judge pointed out that the First-tier Tribunal Judge understood that the document had to be in existence at the relevant time and provided with the application at the time of making it.
16. The document in question, said the Upper Tribunal, was not a document missing from a sequence. Indeed, it was not in existence at the time of the application, as the date shows. That it could have been obtained earlier is not the issue. That the document on its face refers to a fact already in existence does not without more bring it within the rule.
17. This was identified by Longmore LJ, who in refusing leave said:

"The response to a request by an Applicant that he be permitted to forward further documents and that any documents should be sent in 7 working days is no indication that the Home Office will dis-apply the requirement that relevant documentation must be sent at the time of application. That was all the First-tier Tribunal Judge and the Upper Tribunal Judge decided and there is no error of law in that decision."

18. I agree. I add, for the avoidance of doubt, that the Upper Tribunal Judgeis identification of the crux of the argument lends force to the rejection by Longmore LJ.
19. Grateful as I am to counsel, this renewed application, which passes neither of the tests for a second appeal, is rejected.