Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 50
P643/11	OPINION OF LORD GLENNIE in the Petition of OLUWASEGUN OLALEKAN OKE Petitioner; for Judicial Review of a decision by the Upper Tribunal (Immigration & Asylum Chamber) dated 19 April 2011 to refuse the Petitioner permission to appeal ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Morton Fraser LLP

Respondent: Webster; The Office of the Advocate General

20 March 2012

[1] The petitioner is a citizen of Nigeria. He applied for leave to remain in the United Kingdom in the category "Tier 1 (General) Migrant". That is a category designed to lead to settlement in the United Kingdom. Relevant provisions are made in the Immigration Rules. Rule 245A describes the Tier 1 (General) Migrant route as being a route "for highly skilled migrants who wish to work, or become self-employed in the UK".

[2] The Tier 1 (General) Migrant category is dealt with as part of the Secretary of State's "Points Based System". In general terms, under that system, points are awarded for achievements in certain defined areas. If sufficient points are achieved, the applicant qualifies for leave to remain. The requirements for leave to remain in this category are set out in Rule 245C. To qualify for entry clearance as a Tier 1 (General) Migrant, an applicant has to meet the requirements listed in that Rule. If the applicant meets those requirements, entry clearance for leave to remain will be granted. If the applicant does not meet those requirements, the application will be refused. No discretion is involved.

[3] The requirements are set out under reference to various Appendices. It is not in dispute that the petitioner required to achieve 80 points under Appendix A (Attributes), 10 points under Appendix B (English Language) and 10 points under Appendix C (Maintenance (Funds)). The Secretary of State refused his application. The reasons for that refusal are set out in a letter of 9 December 2010 from the UK Border Agency ("the decision letter"). Although 10 points were awarded as claimed in each of Appendices B and C, he was awarded only 65 points under Appendix A rather than the 80 points required to succeed. Points claimed in respect of earnings from self-employment were disallowed.

[4] The petitioner appealed to the First-tier Tribunal (Immigration and Asylum Chamber) ("the FTT"). I should mention that the appeal was also in the name of his wife, his son and his daughter, but it was accepted that the outcome of their appeals was entirely dependent upon the outcome of the petitioner's appeal. It is therefore unnecessary to consider their position further. The Immigration Judge (McGavin) dismissed the appeal. The petitioner applied for permission to appeal to the Upper Tribunal ("UT"). His application was refused both by the FTT (Immigration Judge Kopieczek) and by the UT (Senior Immigration Judge Gleeson). The refusal by the UT of permission to appeal is an unappealable decision. The only recourse open to the petitioner is by way of judicial review.

[5] By this petition for judicial review, the petitioner seeks reduction of the decision of the UT refusing him permission to appeal from the decision of the FTT. The issue relates to the disallowance of the points claimed in respect of earnings from self-employment. It is very fairly accepted on behalf of the Secretary of State that if the petitioner was entitled to the points claimed in respect of his earnings from self-employment, then he would have achieved the 80 points from Appendix A and, having already satisfied the points requirements in respect of Appendices B and C, would be entitled to be granted leave to remain.

The Eba test
[6] It is common ground that judicial review of a decision by the UT refusing permission to appeal to itself in such cases is, in principle, available. The test to be applied is what has become known as the "second appeal test". That test requires that judicial review should not be granted in such a case unless:

(a) The proposed appeal [to the UT] would raise some important point of principle or practice; or

(b) there is some other compelling reason for the [Upper Tribunal] to hear the appeal.

As was explained by Baroness Hale JSC in R (Cart) v Upper Tribunal [2011] 3 WLR 107 at para.27, that is the test laid down for the grant of permission for a second-tier appeal from the UT to the Court of Appeal: see the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (SI 2008/2834), Article 2. Equivalent provision has been made for the grant of leave for a second-tier appeal from the UT to the Court of Session: see Rule 41.59 of the Rules of the Court of Session. That test was taken from the rules which have since 1999 applied to a second-tier appeal from a court in England and Wales to the Court of Appeal under section 55(1) of the Access to Justice Act 1999. The decision in Cart applied that test to applications in England and Wales for judicial review of a refusal by the UT of permission to appeal to itself. In Eba v Advocate General for Scotland [2011] 3 WLR 149, heard at the same time as Cart, the Supreme Court applied that same test to the grant of a petition for judicial review in Scotland against such a refusal by the UT.

[7] In delivering the judgment of the Supreme Court in Eba, Lord Hope DPSC said this (at para.48):

"So I would hold that the phrases 'some important point of principle or practice' and 'some other compelling reason', which restrict the scope for a second appeal, provide a benchmark for the Court to use in the exercise of its supervisory jurisdiction in relation to decisions that are unappealable that is in harmony with the common law principle of restraint: see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070, paras.17 and 24, per Dyson LJ and Cramp v Hastings Borough Council (Note) [2005] 4 All ER 1014, para.68, per Brooke LJ. Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all".

Lord Hope went on at para.49 to say that he would leave it to the Court of Session to give such further guidance as might be needed as to how the analogy with the second appeals criterion should be applied in practice. He mentioned a few points of his own. The first was to reiterate Lord Reid's observations in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 that if a statutory tribunal decides a question remitted to it for decision without committing an error of law as to what that question is, it is as much entitled to decide that question wrongly as it is to decide it rightly. The second was to emphasise the need for the court to distinguish between errors of law that raised an important issue of principle or practice, or reasons that were compelling, and those that did not answer to this description. The answer would depend on the facts of each case. The other two points raised by Lord Hope in that passage relate to matters of procedure with which I am not presently concerned.

[8] In his judgment in Cart, Lord Dyson JSC identified the advantages of the second-tier appeals approach (at paras.130-131):

"130. It seems to me that the second appeal criteria approach offers a number of advantages. First, and obviously, it does not suffer from the defects of the two alternatives that I have rejected. Secondly, and positively, it ensures that errors on important points of principle or practice do not become fossilised within the UT system. An individual who has been unsuccessful before the FTT will be able to raise an important point of law in the courts if the UT refuses to grant permission to appeal to itself. As explained by the Court of Appeal in Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070, it is not enough to point to a litigant's private interest in the correction of error in order to obtain permission for a second appeal. Permission will only be given where there is an element of general interest, which justifies the use of the court's scarce resources: see also Zuckerman on Civil Procedure, 2^nd ed. (2006), para.23.139. It follows that, if the law is clear and well established but arguably has not been properly applied in a particular case, it will be difficult to show that an important point of principle or practice would be raised by an appeal. The position might be different where it is arguable that, although the law is clear, the UT is systematically misapplying it: see, for example, Cramp v Hastings Borough Council [2005] 4 All ER 1014.

131. Thirdly, the second limb of the test ('some other compelling reason') would enable the court to examine an arguable error or law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at para.99 as 'a wholly exceptional collapse of fair procedure' or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences".

[9] Uphill v BRB, to which both Lord Hope in Eba and Lord Dyson in Cart referred in their judgments, was a decision on the second appeal test as it existed in England to regulate the grant of leave from courts of first instance to the Court of Appeal under section 55(1) of the Access to Justice Act 1999 and CPR r52.13(2). The judgment of the court, given by Dyson LJ (as he then was), was specifically intended to provide guidance as to the meaning and effect of that provision: see para.16. He dealt with the first limb of the test ("important point of principle or practice") in para.18 of the judgment in these terms:

"18. In our judgment, it is clear that the reference in CPR r52.13(2)(a) to 'an important point of principle or practice' is to an important point of principle or practice that has not yet been established. The distinction must be maintained between (a) establishing and (b) applying an established principle or practice correctly. Where an appeal raises an important point of principle or practice that has not yet been determined, then it satisfies CPR r52.13(2)(a). But where the issue sought to be raised on the proposed appeal concerns the correct application of a principle or practice whose meaning and scope has already been determined by a higher court, then it does not satisfy CPR r52.13(2)(a). We cannot accept the submission of Mr James [for the defendant] that the question whether an established point of principle or practice has been properly applied in an individual case itself raises an important point of principle or practice. Were the position to be otherwise, the door would be open to second appeals in all cases which concern the application of an important principle or practice. That is clearly not what was intended".

As to the second limb of the test ("some other compelling reason"), Dyson LJ emphasised at para.19 that the word "compelling" was a "very strong word" which emphasised the "truly exceptional" nature of the jurisdiction. The court was tempted to say that the word "compelling" was an ordinary word which did not require explanation or amplification; but in view of some uncertainty in the cases as to the stringency of the test, it attempted, in para.24, and with the approval of the Master of the Rolls and the Vice President of the Court of Appeal (Civil Division), to provide some elucidation:

"24. (1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the Court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR r52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.

(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision of the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.

(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether".

This guidance is, of course, highly persuasive, since the test to which it was addressed is identical to the test now adopted for judicial review of a refusal by the UT to grant permission to appeal to itself from the decision of the FTT.

[10] Mr Webster, who appeared for the Secretary of State, also drew my attention to the decision of the Court of Appeal in PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73. That was a decision as to whether leave should be granted in a second appeal case to the Court of Appeal. It is of some importance because it includes a discussion of the principles laid down both in Uphill and in Cart and Eba. Of particular relevance is the explanation at para.36 of the judgment of the Court, delivered by Carnwath LJ (as he then was), that the word "compelling" in the phrase "some other compelling reason" meant legally compelling rather than compelling from a political, emotional or personal point of view. To put this in context it may be helpful to quote from paras.35 and 36 of the judgment:

"35. Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception. The prospects of success should normally be 'very high', or (as it was put in the Cart case...) the case should be one which 'cries out' for consideration by the court. The exception might apply where the first decision was 'perverse or otherwise plainly wrong', for example, because inconsistent with authority of a higher court. Alternatively procedural failure in the Upper Tribunal might make it 'plainly unjust' to refuse a party a further appeal, since that might, in effect, 'deny him a right of appeal altogether'. In the Cart case Lord Dyson JSC, following Laws LJ, characterised such a case as involving 'a wholly exceptional collapse of fair procedure'; para.131. Similarly, Lord Hope DPSC in the Eba case ....referred to cases where it was 'clear that the decision was perverse or plainly wrong' or were, 'due to some procedural irregularity, the petitioner had not had a fair hearing at all'.

36. It is true that Baroness Hale and Lord Dyson JJSC in the Cart case acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words 'compelling' means legally, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments".

The court, at para.33, emphasised that the "compelling reasons" test was intended to be an "exceptional" remedy, a "safety valve". This case too provides important guidance, though it is important to emphasise, as the Court of Appeal itself emphasised, that the context is all-important. The views expressed on the issue by the Supreme Court in Cart and Eba, though highly persuasive, could not be determinative of the approach to be taken by the Court of Appeal in the context of deciding whether or not to grant permission to appeal from the UT. For the same reason, the views expressed by the Court of Appeal in that context, though again highly persuasive, cannot be determinative of the approach to be adopted by the Court of Session on the question of judicial review of a decision by the UT to refuse permission to appeal to itself. One point made by the Court of Appeal, for example, in para.37, is that in considering whether an important point of principle or practice arises, it should be one which "calls for attention by the higher courts, specifically the Court of Appeal, rather than left to be determined within the specialist tribunal system". When the court is considering whether to grant judicial review of a decision by the UT to refuse permission to appeal to itself, the question must surely be whether the point of principle or practice is sufficiently important to require determination at the least within the tribunal system, regardless of whether or not it is sufficiently important to call for attention by the Court of Appeal or the Court of Session.

[11] In Eba, Lord Hope anticipated that the Court of Session would give further guidance on the application of the test. In that context, I was referred to four decisions of Outer House judges in which the test had potentially fallen for discussion. They were: AB, Petitioner (Lord Hodge) [2011] CSOH 205, AK, Petitioner (Lady Dorrian) [2012] CSOH 17, DMK, Petitioner (Lady Smith) [2012 CSOH 25 and MK, Petitioner (Lord Stewart) [2012] CSOH 29. I do not propose to say anything about those cases. It seems to me that any guidance by the Court of Session, particularly at Outer House level, is likely to emerge not from some further statements of principle but simply from the accretion of cases illustrating applications of the test to the particular circumstances. All I would say in terms of generality is this. Ultimately, if the court grants a petition for judicial review and reduces the decision of the UT refusing permission to appeal to itself, the decision on the question of whether to grant permission to appeal will have to be re-taken by a judge of the UT; and, if leave is then granted, it is, in the first instance at least, for the UT, not for the court, to decide upon the merits of the appeal. On the hearing of the petition for judicial review, therefore, the court should be reluctant to express any firm views on these matters and thereby trespass on the merits of the application for leave to appeal or on the merits of the appeal, both of which are areas reserved for the UT. However, the test for the grant of judicial review, as explained by the Supreme Court in Cart and Eba under reference to Uphill, and in PR (Sri Lanka), in many cases requires the court, if it grants the petition, to form a view of the merits, and thereby invites it to pronounce on those very areas which are within the exclusive preserve of the UT. A potential conflict is, to my mind, inherent in the test. In such circumstances, the court has no option but to express a view on the merits where the test requires it to do so; but, so it seems to me, the UT must be free (and duty bound) to form its own view when the matter comes back to it for decision.

The present application
[12] In the present application, the petitioner says that both limbs of the second appeal test are brought into play. First, he says that the FTT made an error of law on a question which raises an important point of principle and practice. Secondly, he says that in any event the consideration given to his argument and evidence by the Immigration Judge, or in some aspects the lack of proper consideration given to his evidence and arguments by the Immigration Judge, amount, whether taken by themselves or in conjunction with the error of law, to such a miscarriage of justice or collapse of fair procedure so that it can properly be said that the petitioner has not had a fair hearing at all.

[13] I propose to take these points separately. First, however, it is necessary to set out in rather more detail the decision letter in terms of which the Secretary of State refused the application, and also the judgment of the Immigration Judge in the FTT, before touching briefly upon the written applications for permission to appeal and the refusal thereof.

The decision letter
[14] The decision letter dated 9 December 2010 recited the fact that the petitioner was required to score 80 points under Appendix A, 10 points under Appendix B and 10 points under Appendix C. He scored the full 10 points under both Appendix B and Appendix C. As regards Appendix A he scored 5 points for age, 35 points for qualifications and 5 points for UK experience, all as claimed by him. He also claimed 35 points in respect of previous earnings.

[15] The points awarded for earnings have varied over time. In the present case the applicant claimed 35 points for earnings of £55,045.71, earned from three different sources: (a) £26,184.44 from his employment with Edinburgh City Council; (b) £13,730.27 from his employment with Clear Solution SG; and (c) £15,131 from self-employment. As set out in the decision letter, the Secretary of State was satisfied with his earnings from his employment with Edinburgh City Council and with Clear Solution SG. Those came to just under £40,000 and were enough to earn his 20 points - 20 points are awarded for earnings of between £35,000 and £39,999. But the Secretary of State was not satisfied with the evidence submitted of his earnings of £15,131 from self-employment. In those circumstances she awarded only the 20 points compared with the 35 points claimed. That left the petitioner with 65 points under Appendix A rather than the 80 required in terms of Rule 245C of the Immigration Rules. In terms of that Rule, therefore, his application was refused.

[16] The reason for rejecting the £15,131 from self-employment appears from the following quotation from the decision letter:

·       "You have submitted a set of account prepared by SKI Accounts Consultant. However, the accountant does not show that he is a fully qualified chartered accountant or a certified accountant and is a member of a registered body such as ACCA, CIMA, ACA, CIPFA etc.

·       Subsequently we rang you requesting evidence to show your accountant's professional status.

·       In reply you submitted another set of accounts prepared by the chartered accountants, Hafeez & Co. However, the accounts do not bear your signature of approval and we are therefore unable to accept the accounts as evidence of earnings derived from self-employment.

·       We are also, in line with the published guidance, unable to accept invoices as evidence of self-employment.

·       In addition, we are unable to determine from your bank statements if the money credited is derived from self-employment.

·       We are therefore unable to take into consideration your income from self-employment.

·       We have therefore assessed your previous earnings to be £39,914.71 and only able to award 20 points, in line with published guidance".

In rejecting the SKI accounts because the accountant did not appear to be a fully qualified chartered accountant or a member of one of the bodies mentioned in the letter, in rejecting the Hafeez accounts because they did not bear the petitioner's signature of approval, in refusing to accept invoices, and in her attitude to the bank statements, the Secretary of State was acting in accordance with Policy Guidance issued by her specifying the documents required to be provided by an applicant.

[17] The petitioner's complaint, in short, is that in so doing she applied that Policy Guidance rigidly, as though it were part of the Immigration Rules, so that any failure to comply therewith automatically led to that evidence being excluded and, in consequence, the application being refused; whereas, so he contends, she ought to have applied it for what it was, as Policy Guidance, to be applied in a proportionate and flexible manner having regard to the purpose behind the requirements in the Guidance. I return to this point later.

The FTT

[18] The petitioner appealed to the FTT. At the request of the petitioner, and by agreement, the appeal was determined on paper, without a hearing: see Rule 15(2)(a) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. The Immigration Judge identified the material before her in para.2 of her Determination and Reasons. The material consisted of the Appellant's Bundle, including letters of 11, 17 and 26 January 2011 (and the enclosures to them) as well as a Bundle for the Secretary of State. There is nothing in that description of the material placed before her to indicate that the Immigration Judge had the benefit of any letter of submission by the Secretary of State other than, of course, the decision letter itself. There was some discussion at the hearing before me as to whether any submission was put in by the Secretary of State, but it seems to me unlikely that it was. The point is not without significance, since, in her Determination and Reasons, the Immigration Judge raised and relied upon matters which had not been put forward by the Secretary of State in the decision letter. Unless, therefore, there was some letter of submission by the Secretary of State raising these points, it would appear that not only did the Immigration Judge take the points for herself, but, further, she reached a decision on them without giving the petitioner any notice that the points were being taken against him.

[19] The operative part of the decision letter is relatively short. In para.5 the Immigration Judge notes, correctly, that the onus is upon the Appellant to show, on a balance of probabilities, that he meets the requirements of para.245C(c) of the Immigration Rules. She notes in para.6 that he required a minimum of 75 points under Appendix A of the Immigration Rules (this is probably an error - the applicant required 80 points under Appendix A - but nothing turns on this). In para.7 she set out the history of the matter in this way:

"7. The Appellant claimed 35 points in respect of previous earnings under said Appendix A. The Respondent awarded the Appellant 20 points for the following reasons. The Appellant claimed self-employed previous earnings of £15,131 and in support of this he submitted a set of financial accounts prepared by 'SKI'. The Respondent did not take these earnings into consideration because it had not been shown that SKI were either fully qualified chartered accountants or certified accountants and members of a registered body such as ACCA, CIMA, ACA, CIPFA etc. When this was brought to the Appellant's attention he submitted a further set of accounts, this time prepared by chartered accountants, Hafeez & Co, but not signed as approved by the Appellant. In addition, the Respondent was unable to accept invoices as evidence of self-employment and was unable to determine the source of credits in the Appellant's bank statements".

In para.8 she recites what she understands to be the Appellant's argument. She says this:

"8. The Appellant, on appeal, states that SKI told him that they were certified accountants. In addition, he states that the terms of the Guidance 'such as ACCA, CIMA, ACA, CIPFA etc' are not exhaustive. He claims that they have a registered office and have been in business for 8 years. Therefore the Respondent should have accepted the accountants which they prepared. He also states that the Guidance does not require any accounts provided to be signed as approved and that Hafeez & Co are chartered accountants, which the Respondent accepts. Therefore the Respondent should have accepted the accounts which they prepared".

The Immigration Judge then went on in paras.9, 10 and 11 to give her decision and the reasons for it. I set these out in full:

"9. Firstly, the Respondent was correct when he refused to accept as documentation, the 'accounts' produced by SKI. This body describes itself variously as 'Accountants & Management Consultants' (heading of letter of 11 October 2010 to UK Border Agency) and as 'Accounts Consultant' (stamp on that letter and on accounts), and as 'Book-keeper - A/C - Consultant' (Trading Profit & Loss Account front page and Balance Sheet). If SKI is or are certified accountants as the Appellant claims on appeal, they have never stated this on any documentation which has been produced, and even if they had, it has not been shown, as is required additionally, that it/they is/are (a) member/s of any registered body (such as ACCA, CIMA, ACA, CIPFA etc).

10. Secondly, whether or not the accounts provided by Hafeez and Co have been approved by the Appellant, I find that they are not credible or reliable evidence of the Appellant's previous earnings for the following reasons. Apart from the different heading and the different author name and stamp, both the new letter and the new accounts are identical in every way to the letter and accounts provided by SKI. The text is identical. Even the abnormal spacings between letters (for example after the word 'by' in the Accountant Report on the Balance Sheet, and after the years '2009/2010' and before the word 'a' in the first line after the total in the letter) are the same. If a new accountant had been asked to independently consider the Appellant's financial documentation and provide a letter and accounts for his Tier 1 application, it is not credible that he would have copied in every respect the text of the letter and accounts provided by a previous accountant. The new letter and accounts have the clear appearance of having been copied and pasted using a personal computer and then a different heading and stamp applied.

11. I find that the Appellant has failed to discharge the burden upon him of showing to the requisite standard that he meets the requirements of Paragraph 245C of the said Rules."

[20] The Immigration Judge therefore refused the appeal. Her reasoning appears to be to the following effect. First, the Secretary of State was entitled to refuse to accept the documentation produced by SKI on the grounds that they were not shown to be a member of one of the registered bodies identified in the decision letter and in paragraphs 7, 8 and 9 of the Determination and Reasons. Secondly, the accounts provided by Hafeez & Co were not credible or reliable evidence of the Appellant's previous earnings because, having regard to their presentation, they appeared to have been copied and pasted and not the genuine work of the new accountants. Third, and this is by way of omission from the Determination and Reasons which are entirely silent as to its existence, the other material provided by the Appellant was not to be taken into account in considering whether he had established his self-employed earnings.

[21] For the avoidance of doubt it should be noted that this other material included the following: a statement by the applicant; invoices submitted by him from his self-employed work; bank statements; registration for self-assessment with Government Gateway for the purpose of tax payments; a letter from HM Revenue and Customs ("HMRC") providing details of his unique tax reference number, proving his registration for tax and national insurance payments from his self-employment; and a letter from HMRC showing his tax returns and payments from his three sources of income, including self-employment. These last three categories of document were sent to the FTT by the petitioner on 26 January 2011, a month before the decision of the Immigration Judge, because they had been omitted from the documents sent to the FTT by the Secretary of State. They had already been sent in by the petitioner as part of his own appeal documentation, but, since they had been omitted by the Secretary of State, he was anxious to ensure that they came to the attention of the Immigration Judge determining the case.

Refusal of leave by the First-Tier Tribunal

[22] The petitioner applied to the FTT for permission to appeal to the UT. In his application he made a number of points. He complained that in his treatment of the SKI accounts, the Immigration Judge did not apply, correctly or at all, the ruling in Pankina v Secretary of State for the Home Department [2011] QB 376. He contended that the Immigration Judge had treated the Secretary of State's Policy Guidance as to the documentation required to be produced by the applicant as though it were a legal requirement, and in doing so had erred in law. Secondly, he complained that the Immigration Judge had found the accounts prepared by Hafeez & Co to be neither reliable nor credible, when the reliability or credibility of those accounts had not been put in issue by the Secretary of State. Third, the Immigration Judge failed to deal with much of the evidence put forward by the petitioner, including but not limited to his invoices and bank statements, each invoice corresponding to entries in the bank statements and thereby showing the source of the receipts shown in the bank statements. His application for permission to appeal concluded by saying that, in accordance with Pankina, the Policy Guidance was not the law and did not have to be followed; and that therefore the whole findings of the Immigration Judge, being related to the Policy Guidance, were irrelevant and immaterial to the substance of the appeal.

[23] The FTT refused the application for permission to appeal. The reason for that refusal is expressed shortly as follows:

"The grounds of application contend that the IJ failed to have regard to the decision of the Court of Appeal in Pankina....It is contended that Pankina decides that the Policy Guidance does not need to be followed and that the Guidance is therefore 'irrelevant and immaterial' to the substance of the appeal. That however, is not the effect of Pankina and the Guidance is relevant. It is not suggested on behalf of the appellants that this Guidance was not in existence at the time that the rules incorporating it were made.

In any event, the IJ gave detailed reasons for finding that the evidence in relation to the first appellant's self-employed earnings was not satisfactory. Those findings were open to the IJ on the evidence. The grounds of application expressed disagreement with the IJ's findings on the evidence but do not identify any arguable error of law".

It might be thought that those reasons rather miss the point. First, the petitioner's argument was not that Pankina decided that the Policy Guidance was "irrelevant and immaterial". His point was that it should not have been treated as though it was part of the law which had to be followed to the letter. Secondly, to say that the IJ gave detailed reasons for finding that the evidence in relation to the appellant's self-employed earnings was not satisfactory is somewhat stretching the reasons given by the Immigration Judge. He did not consider the other evidence apart from the Hafeez & Co accounts. As to these accounts he decided that they were unreliable and incredible on points which, as the petitioner pointed out in his application for permission to appeal, had not been raised by the Secretary of State.

Refusal of permission to appeal by the UT
[24] Having been refused leave by the FTT, the petitioner applied to the UT for permission to appeal. The application set out "Additional Grounds for Permission", thereby making it clear that the original grounds set out in the application before the FTT were still insisted on. The focus of these Additional Grounds was the decision of the Court of Appeal in Pankina. The argument is set out in paras.1-6. Para.7 went on to complain that Immigration Judge Kopieczek, in refusing permission to appeal, had not dealt with a number of the original grounds relied upon by the petitioner in his application for permission to appeal. Those, it was reiterated, included the fact that the respondent was wrong to refuse to look at the SKI accounts, was wrong to reject the accounts produced by Hafeez & Co as incredible, and ignored other pieces of evidence corroborating these accounts.

[25] The application came before Senior Immigration Judge Gleeson. He expressed the view that the proposed grounds of appeal, which argued that the FTT had erred in discounting the SKI accounts on the basis that SKI did not belong to one of the bodies listed in the Policy Guidance, did not address the concerns expressed by the Immigration Judge about the reliability of the accounts produced by Hafeez & Co. That was not correct - the application stated in terms in para.7 that in dismissing the Hafeez accounts as not being credible the Immigration Judge had ignored three pieces of corroborating evidence - and, in any event, was, of course, was an entirely separate point from the refusal to consider the SKI accounts. He concluded that:

"The Immigration Judge's reasons for rejecting the accounts overall are proper, intelligible and adequate to support his conclusions."

For those reasons he refused the application for permission to appeal.

[26] It can be seen at once that the consideration given to the application for permission to appeal by the Senior Immigration Judge failed to address the key issues raised by the Petitioner. The challenge to the FTT's discounting of the SKI accounts (raised in the Pankina argument) is not answered by the fact that the Immigration Judge had concerns about the reliability of the Hafeez accounts. Nor does the Senior Immigration Judge even mention the fact that the application for permission to appeal complained that the Immigration Judge had not had regard to any of the other evidence.

The grounds of challenge

[27] I turn, against this background, to consider first the contention that the proposed appeal to the UT raises "some important point of principle or practice". I then turn to deal with the question of whether there is "some other compelling reason" for reducing the decision of the UT refusing permission to appeal to itself. Although the points are separate, they inevitably overlap to some extent.

Some important point of principle or practice?

[28] The petitioner contends that the Secretary of State, and the FTT hearing the appeal on its merits, was wrong in law to refuse to consider the SKI accounts simply because SKI were not chartered accountants or certified accountants and members of a registered body such as ACCA, CIMA, ACA, CIPFA etc. But although the point is directed towards the rejection of the SKI accounts, it goes beyond that; it also affects some of the other evidence (e.g. the invoices) put forward by the petitioner in support of his contention that he was entitled to be assessed as having earned £15,131 from self-employment and therefore qualified for the full 35 points claimed under that part of Appendix A.

[29] The argument revolves around the status of Policy Guidance and its legitimate role in assessing whether an applicant for leave to remain meets the relevant points requirement.

[30] The Points Based System is dealt with in Part 6A of the Immigration Rules. Rule 245AA, the first rule under that Part, is headed "Documentary Evidence". It provides that:

"Where Part 6A or Appendices A to C, or E of the Rules state that specified documents must be provided, that means documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence."

The notes to the relevant Table in Appendix A (in the form which I was told is the relevant form for the purpose of this case) make it clear that "specified documents" from two or more sources have to be provided as evidence of each source of previous earnings. The reference to specified documents there clearly refers to the documents specified in the Points Based System Policy Guidance.

[31] I was referred to an extract from the Policy Guidance in so far as it specified the documents required to be produced to demonstrate earnings from self-employment. I do not propose to set it out in detail but the following points emerge. First, it is made clear in para.140 of the Policy Guidance that:

"In addition to the documents required to demonstrate earnings, applicants claiming points for self employed earnings made in the UK must provide documents to show that they are registered as self-employed."

Rule 141 then deals with the documents which, in terms of Rule 245AA of the Immigration Rules, are to be regarded as the specified documents which are necessary if the applicant seeks to be awarded points on the basis that he or she meets the requirements for the relevant category. The specified documents include the following (using the sub-paragraph numbering in Rule141):

(ii) Personal bank statements, on official bank stationery, showing each of the payments that the applicant is claiming;

(iv) Official tax documents produced by the tax authority showing earnings on which tax has been paid or will be paid in a tax year - it is emphasised that they must show the exact amount of earnings for which the applicant is claiming points;

(vi) For self-employed applicants only, a letter from the applicant's accountants confirming that the applicant has received the amount which he is claiming - this category adds a rider to the effect that all accountants must be either fully qualified chartered accountants or certified accountants who are members of one of the registered bodies to which I have referred;

(vii) Invoice explanations or payment summaries from the applicant's accountant, again with the accountants being either fully qualified chartered accountants or certified accountants belonging to one of those bodies;

(ix) Business bank statements showing each of the payments made to the applicant for which the applicant is claiming.

Finally under this paragraph it is stated that where an applicant submits a combination of bank statements and a letter or invoice summary from their accountant, they must also provide any invoices generated during the period for which earnings are being claimed. Presumably this is to enable it to be ascertained that the receipts shown in the bank statements derive from the work invoiced by the applicant.

[32] Para.142 of the Policy Guidance then sets additional documentary requirements where an applicant is claiming earnings from self-employment in the UK. This is in addition to the documents listed in para.141. I need not go into this in detail since Mr Webster, for the Secretary of State, frankly conceded that this additional requirement was met, or at least arguably so, by the documents submitted by the petitioner.

[33] The accounts from SKI were rejected out of hand by the Secretary of State and the Immigration Judge because SKI were not fully qualified chartered accountants or certified accountants belonging to one of the listed bodies. In light of that fact, no consideration at all was given to those accounts. The matter was clearly regarded both by the Secretary of State and by the Immigration Judge as being one of strict compliance. Either the accounts were from accountants who were fully qualified chartered accountants or certified accountants belonging to one of those bodies, or they were not. If they were not, they fell to be disregarded, regardless of whether the contents of those accounts were credible or reliable or supported in any way by other material. As to the treatment of the invoices and bank statements, these were not dealt with by the Immigration Judge; but the Secretary of State, in the decision letter, rejected the invoices on the basis that invoices themselves could not be accepted as evidence of self-employment (an odd point to make, since it is accepted that the requirements for evidence of self-employment under para.142 of the Policy Guidance were met); and that the bank statements could not be accepted as credible evidence of earnings derived from self-employment because they did not show the source of the money received (again a somewhat odd complaint if the invoices showed a link between sums charged by the applicant and payments received into the bank account).

[34] As I say, these documents were not taken into account by the Immigration Judge. But they themselves call into question the application of the Policy Guidance. The question is whether those documents should have been rejected out of hand if they were considered not to comply with the Policy Guidance; or whether they should nonetheless have been assessed on their merits having regard to the objective of the policy approved by Parliament.

The status of the Immigration Rules

[35] The Immigration Rules have been described as something of a constitutional hybrid. In Odelola v Home Secretary [2009] 1 WLR 1230, Lord Hoffmann said this (at para.6):

"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. So there is no conceptual reason why they should not create rights which subsequent rules should not, in the absence of express language, be construed as removing...."

The reason why the Immigration Rules are not subordinate legislation is that they are not made under any enactment: see per Lord Neuberger at para.46 in the same case. Although they are referred to in the Immigration Act 1971, and "potentially subject to control by the legislature under that Act", they are not made under it.

[36] As Lord Neuberger makes clear in para.46 of his judgement in Odelola, immigration rules of one sort or another had existed long before the 1971 Act. The matter was considered in detail in the judgment of Sedley LJ in Pankina. That judgment shows how immigration rules, originating in instructions or guidance given to immigration officers to assist them in making decisions under earlier legislation, had, by the time the Immigration Appeals Act 1969 came into force, "shed the primary characteristic of policy - flexibility - and were required to have at least tacit parliamentary approval": see para.10. The immediate result was that the previously existing system of departmental rules and instructions, with a status distinct from that of ordinary policy, became a set of "rules" recognised in s.1(4) of the 1971 Act. S.3(2) of the 1971 Act went on to require such rules to be laid before Parliament for scrutiny:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; ...

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying ...then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution ..."

S.33(1) defined "immigration rules" as "the rules for the time being laid down as mentioned in section 3(2) above".

[37] The effect of the Immigration Rules being rules as distinct from policy is explained by Sedley LJ at paras.15-21 of his judgment. I quote in particular from paras.16, 17 and 21:

"16. But the immigration rules are today different from and more than policy. On appeal to the tribunal they acquire the force of law: the first ground of appeal under s.84(1) of the 2002 Act is that the Home Office decision 'is not in accordance with immigration rules'. The ineluctable effect is that departmental decision-makers too are required to abandon any idea of listening, as Lord Reid said they must, to any commonsense or special reason for applying policy flexibly and to stick in every case to the letter of the rules. And that is what one sees in practice. Indeed the Parliamentary drafter has been drawn into the stealthy elevation of the rules to a status of quasi-law: s.86(3)(a) of the 2002 Act speaks of "the law (including immigration rules)".

17. ...In my judgment the time has come to recognise that, by combination of legislative recognition and executive practice, the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law. ...

21. ...There was a potent constitutional reason, whether it was overtly acknowledged or not, for Parliament's insisting in 1969 and again in 1971 that the Home Secretary's rules of practice must be open to a negative resolution: the rules were being elevated to a status akin to that of law and made the source of justiciable rights - something which, in the domestic sphere (as distinct from the administration of its overseas possessions), the Crown as executive has no power to do. It can make law only with the authority of Parliament. It follows that only that which enjoys or secures Parliament's authority, in the present instance by the absence of a negative resolution within 40 days after laying, is entitled to the quasi-legal status of immigration rules."

Those passages, and in particular para.16, not only emphasise that the Immigration Rules enjoy the status of rules now only by dint of parliamentary authority, obtained by the absence of a negative resolution within forty days of them being laid before Parliament, but also explain the distinction between the Immigration Rules as rules and other sources of immigration policy such as Policy Guidance. As rules they must be applied to the letter, whereas if they were only policy they would require to be applied flexibly having regard to the objective sought to be achieved: see para.16. [38] This distinction is brought out again by Sedley LJ at para.28 under reference to the issue in the case before the court, which concerned a statement in Policy Guidance issued by the Secretary of State (though not in the Rules) that an applicant for leave to remain in a particular category required to have had at least £800 of personal savings "which must have been held for at least three months prior to the date of application":

"... A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense. To take the present case, the policy guidance standing alone would not only permit but require a decision-maker to consider whether, say, a week's dip below the £800 balance during the three-month period mattered. This would in turn require attention to be given to the object of the policy, which is to gauge, by what is accepted on all sides to be a very imprecise rule of thumb, whether the applicant will be able to support him- or herself without recourse to public funds. If that object was sensibly met, the law might well require the policy to be applied with sufficient flexibility to admit the applicant, or would at least require consideration to be given to doing so. But if the requirement is a rule - and it is the Home Secretary's case that by incorporation it becomes a rule - then there is no discretion and no judgment to be exercised."

[39] The issue in Pankina was as to the alleged incorporation of the Policy Guidance into the Immigration Rules. That case was concerned with the requirement in Appendix C to the Immigration Rules to provide "the specified documents". The same issue arises here under Appendix A. As in this case, the specified documents were defined by rule 245AA as being "documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying" - if those specified documents were not provided, the applicant would not meet the requirement for which they were required as evidence. In Pankina the Policy Guidance issued in June 2008 required the applicant to produce as specified documents "personal bank or building society statements covering the three-month period immediately before the application" and showing "that there are sufficient funds present in the account (the balance must always be at least...£800..)". That provision was changed in November 2008 so as to provide that applicants "must have at least £800 of personal savings which must have been held for at least three months prior to the date of application." It was contended on behalf of the applicant that the Guidance introduced a further substantive criterion which did not form part of the Immigration Rules laid before Parliament. The question before the court was, in effect, whether the Immigration Rules, which referred specifically to the requirement for specified documents to be provided and identified the specified documents as being the documents specified in the Policy Guidance issued by the Secretary of State, could lawfully incorporate as part of the Immigration Rules those parts of the Policy Guidance identifying the specified documents. This was important because, as I have said, if the identification of the specified documents in the Policy Guidance was to be regarded as part of the Immigration Rules, precise compliance was required; whereas if that Policy Guidance was not incorporated as part of the Immigration Rules, but was only Policy Guidance, consideration had to be given to applying it flexibly, having regard to the objective sought to be attained. The decision maker in Pankina had applied the Policy Guidance strictly, as though it were part of the Immigration Rules, and on that basis had refused the application for leave to remain on the ground that, for a short time within the three month period, the sum held in the applicant's bank account had fallen below the figure of £800.

The decision in Pankina

[40] On this point, the following questions were identified (see para.23), namely:

"(1) Can the immigration rules lawfully incorporate provisions set out in another document which

(a) has not itself been made before Parliament

(b) is not itself a rule of law but a departmental policy

(c) is able to be altered after the rule has been laid before Parliament?"

Question (1)(a) was answered in the affirmative: the bare fact that a measure laid before Parliament is not self-contained does not render it ineffective: see para.26. Many measures laid before Parliament derive part of their content from "an extant and accessible outside source". An example was the case of R v Secretary of State for Social Services ex parte Camden LBC [1987] 1 WLR 819 in which a statutory instrument fixing the amount of benefits by reference to a directory separately published by the Secretary of State was held to be valid: see para.24 of Sedley LJ's judgment. Of importance, however, in that case, as explained by Sedley LJ, was that the directory was already in existence and able to be referred to. Slade LJ adopted what had been said at first instance in that case:

"Provided the reference is to an existing document and there is no question of "sub-delegation" ... there is no objection to the practice ..."

He went on in para.27 to elaborate on this answer to question (1)(a) and to explain why questions (1)(b) and (c) were to be answered in the negative. He said this:

"27. Indeed Michael Fordham QC, for Ms Pankina, has drawn attention to places where plainly legitimate reference is made in the rules to outside sources: for example, by rule 6 a private education institution must offer courses recognised by an appropriate accreditation body. One can add Appendix C itself, which perfectly reasonably relies on bank statements and the like. So the objection is not to rules which rely on outside sources for evidence of compliance. It is to rules which purport to supplement themselves by further rules derived from an extraneous source, whether that source is the rule-maker him- or herself or a third party. While it may be that a policy can unobjectionably do this, the applicants' case is that, save in what one can call the Camden situation, immigration rules cannot.

28. The reason lies in questions (1)(b) and (c). A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense. ... But if the requirement is a rule - and it is the Home Secretary's case that by incorporation it becomes a rule - then there is no discretion and no judgment to be exercised.

29. This in itself would in my opinion require the three-month criterion to form part of the rules laid before Parliament if it was to be effective. But the objection goes deeper. Albeit the first version of the policy guidance was brought into being within the forty days allowed by s.3(2) for the Parliamentary procedure, it has been open to change at any time. It is this, rather than the fact that it has in the event been changed, which, in answer to question (1)(c), is in my view critical. It means that a discrete element of the rules is placed beyond Parliament's scrutiny and left to the unfettered judgment of the rule-maker."

The reference in para.27 to Appendix C, and its reliance on bank statements and the like, is somewhat mystifying. Neither counsel could identify anything in the present Appendix C to that effect. The point probably does not matter, unless it gives rise to the inference that Appendix C did this by reference to the Guidance, and that where the requirement was only procedural, as opposed to substantive, that was acceptable (I refer to this distinction below). But although Mr Webster, for the Secretary of State, did rely on a distinction between procedure and substance, he did not seek to draw such an inference from that reference.

[41] What Sedley LJ is saying in these passages is, on one view, clear. There is no objection to the Immigration Rules incorporating by reference some other pre-existing document, or relying upon outside sources for evidence of compliance by the applicant. In such cases the Immigration Rules are clear and have been subject to parliamentary scrutiny. Anyone wanting to know what the Rules mean, or what they are referring to, can find out without difficulty. On the other hand, there is an objection to Rules which, by referring to some external or extraneous document, purport to allow the Rules to be supplemented in a way which is not subject to parliamentary scrutiny. In other words, the Rules cannot incorporate requirements which are not themselves clear from the Rules or some existing document referred to therein; they cannot incorporate requirements which are subject to change at the behest of the author of that other document, be he or she the rule-maker or some third party. In the language of the judge quoted with approval by Slade LJ in Camden, this would be an instance of "sub-delegation".

[42] Mr Webster submitted that that is not the proper interpretation of Sedley LJ's judgment in Pankina. He submits that the distinction being drawn in para.27 is between, on the one hand, rules which are, in effect, merely procedural, prescribing procedures to be adopted or laying down what evidence is required to prove compliance, and, on the other, rules which are substantive in effect. He accepts that the Immigration Rules cannot incorporate by reference a document capable of change so as to allow sub-delegation of the substantive requirements for Leave to Remain; but he insists that Pankina has nothing to say about the propriety or impropriety of allowing procedural rules to be made by reference to incorporated documents. Pankina, in his submission, was a case where the change in the Policy Guidance was a change of substance, not just a change in the evidential requirements for proof of compliance. He refers in particular to para.33 of Sedley LJ's judgment in which he says this:

"But the operation of rules qua rules is one thing; what they contain as a matter of law is another. In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals' status and entitlements which - coming back now to the questions in paragraph 23 above - (a) have not themselves been tendered for Parliamentary scrutiny, and (c) even if ascertainable at that point in time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source."

Mr Webster also pointed out that the applicant's submission recited in para.6 of Sedley LJ's judgment, itself sought to draw a distinction between a substantive and a procedural requirement:

"6. The change emphasises what the applicants' counsel submit is the reality of this part of the policy guidance: that it goes well beyond simply specifying the means of proving eligibility and introduces a substantive further criterion which did not form part of the statement of rules laid before Parliament. ..."

[43] This is an important argument. If Mr Webster is right, it would mean that the Secretary of State could from time to time issue Policy Guidance to supplement the Immigration Rules on matters of procedure, including setting out the requirements of what documents have to be submitted to prove eligibility for Leave to Remain, without submitting that Policy Guidance to parliamentary scrutiny; while at the same time expecting that Policy Guidance to be given the force of law rather than applied flexibly (as Policy Guidance should be applied). That with respect does not appear to me to be a coherent position. If the Policy Guidance is to be applied to the letter, as a rule of law as part of the Immigration Rules, it should be placed before Parliament in accordance with the provisions governing parliamentary scrutiny of the Immigration Rules, or incorporated in a document which is readily identifiable and is not subject to change without further parliamentary scrutiny. If this is not done, then there is nothing to stop the Policy Guidance being applied for what it is, that is to say as guidance, and to be applied in conjunction with the Immigration Rules; but in that case, not being part of the rules and not having been subject to parliamentary scrutiny, it must be applied only as guidance in accordance with the passage quoted from Sedley LJ at para.28 of his judgment.

[44] My attention has been drawn to three decisions in which Pankina has been considered. The first in order of time is R (English UK Limited) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin). That case concerned a change made by the Secretary of State, by way of Guidance from the UK Border Agency, raising the level of attainment in the English language required of students wishing to come to the UK to study English: see paras.8, 9 and 13(a). The argument was that this could not be done by way of Guidance but had to be done by way of changes to the Immigration Rules laid before Parliament. In considering this matter, Foskett J considered the general legal framework under reference to cases such as R (BAPIO Action Limited and Another) v Secretary of State for the Home Department [2008] 1 AC 1003, Odelola (supra), and Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386, as well as the decision in Pankina itself. It is to be noted that the change sought to be introduced by the Guidance in that case was a substantive change in the level of English required of an applicant. The applicant's arguments drew a distinction between procedural requirements, which he submitted might legitimately be added or altered in this way, and substantive requirements, which had to be the subject of the Immigration Rules themselves. For the Secretary of State, the argument, based on Ishtiaq, was that no such distinction fell to be drawn; if the rules were clear in allowing the Secretary of State to make changes by way of guidance in other external documents, such changes were effective. In considering and ultimately rejecting the argument for the Secretary of State, Foskett J considered in detail the judgment in Pankina. He identified, in para.59, the ratio of that case as follows:

"The ratio of the decision appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involved a true Parliamentary scrutiny..."

He went on, in para.60, to say this:

"It would follow from this that, if a change to current practice (even if reflecting the requirements of a rule) did not involve any alteration of a substantive criterion for admission or for leave to remain, there would be no objection to the change being effected in some form of extrinsic guidance."

That distinction between procedural and substantive changes is picked up later in the judgment in paras.64 and 80. In particular, at the end of para.80, Foskett J said this about the comments of Dyson LJ in Ishtiaq:

"His comments, as I read them, concern the method of proof of a particular factor, not the factor itself. The way in which the Court of Appeal in Pankina interpreted the guidance was that it effectively changed the factor in question, and not just the means of proving that factor."

[45] These passages from the judgment of Foskett J in R (English UK Limited) lend some support to Mr Webster's submissions in the present case. However, I would make two points about them. The first is that that case did concern a change to the substantive requirements for eligibility to be granted leave to remain; the question before the court was whether the Secretary of State could make substantive changes by Guidance issued outwith the Immigration Rules laid before Parliament. The case did not, therefore, raise an issue as to whether procedural or evidential changes could be made in that way. To that extent, the remarks about procedural changes are obiter. Secondly, so it seems to me, the case did not address the issue in the present case which is referred to in the discussion in Pankina, albeit not focused in the decision itself. There is no dispute that the Secretary of State can issue Policy Guidance outwith the Immigration Rules laid before Parliament. How she chooses to do so, whether it be in a document headed "Policy Guidance" or in instructions to officials, or in some other form, is of no import. There is no reason in principle why such Guidance should not be applied by decision makers considering individual applications, subject of course to the guidance being lawful and not subject to judicial review on well known grounds. But the question is as to the status of that guidance and how it should be applied. Is it to be applied strictly, and according to the letter, as though it were part of the Immigration Rules having the force of law? Or is it to be applied flexibly, without rigidity, to be used and adapted in the interests of fairness and good sense? It is this dichotomy which is focused in Pankina in paras.16 and 28.

[46] The second case is FA and AA (PBS: Effect of Pankina) Nigeria [2010] UKUT 00304 (IAC). That was a decision of the UT. The summary of that case states that

"the decision of the Court of Appeal in Pankina is not limited to the 'three-month rule' in relation to evidence of funds. Policy Guidance does not have the status of Immigration Rules for the purposes of immigration appeals."

The case concerned an application for leave to remain as a Tier 4 (General) Student Migrant under the Points Based System. The applicant claimed points under Appendix C of the Immigration Rules. She had to provide evidence that she had maintenance funds of £2,800. She provided a number of certified bank statements from a Lloyds TSB account in the name of her husband, the second appellant. The points were not awarded to her. In accordance with the Policy Guidance, she was treated as not having provided any evidence of funds, even though there was evidence before the Immigration Judge that she had access to the funds in her husband's bank account but for cultural reasons chose to keep that account in her husband's sole name. The Policy Guidance required the applicant to provide specified documents, stipulating that the bank statement should be in the applicant's own name or in the name of parents who were eligible as sponsors, but not in the name of her husband. It was submitted on behalf of the Secretary of State, and accepted by the Immigration Judge, that the decision in Pankina was confined to the application of the three-month rule, but this argument was rejected by the UT. In para.21 of its Determination and Reasons the UT said this:

"In our judgment, once it is established that the Policy Guidance does not have the status of the Immigration Rules for the purpose of immigration appeals, there is no reason why in a particular case an appellant cannot establish that she has funds available to her from a bank account in her husband's name."

The UT held that, on the evidence which the Immigration Judge had accepted, and would have given effect to but for the Policy Guidance, the appellant was able to demonstrate that she had funds available to her from a UK bank account and that was sufficient for the purposes of Appendix C.

[47] That decision is of considerable support for the petitioner's argument in this case, and is contrary, in my opinion, to Mr Webster's submission that Pankina only applies to the introduction of substantive tests by means of Policy Guidance. The issue in FA and AA did not concern a further substantive hurdle; it simply concerned the type of bank account which could be deployed in evidence to show that the applicant had the requisite funds.

[48] The third case, CDS (PBS: "available" Article 8) Brazil [2010] UKUT 00305 (IAC), is a decision of a similarly constituted UT delivered on the same day. The summary of that case, so far as is relevant here, is to the effect that funds are "available" to a claimant at the material time if they belonged to a third party but that third party is shown to be willing to deploy them to support the claimant for the purpose contemplated. In other words, the point was substantially the same as that in FA and AA. In that case, however, the applicant had only £1,064.69 in her own account on the date of application, towards the required maintenance amount of £2,695. She provided a sponsorship letter from two doctors who were financially supporting her. Under the Policy Guidance a student could only rely on money held in a bank account in another person's name if the account was in the name of a parent or legal guardian, or there was evidence to establish both the relationship and the fact that permission to use the money was given. The Immigration Judge, applying the Policy Guidance, concluded that the doctors could not meet the definition of sponsors. For the reasons given by them in the case of FA and AA, the UT concluded that the decision in Pankina meant that the Policy Guidance which had not been laid before Parliament before the inception of the Points Based System could not be relied on by the Respondent as a source of additional mandatory requirements not otherwise spelt out in the Immigration Rules themselves. The appeal was allowed. In this case, too, what was an issue was an evidential requirement rather than an additional substantive test. Again, therefore, this decision supports the petitioner in the present case and is contrary to Mr Webster's submissions.

[49] It should be noted that in both FA and AA and CDS the UT referred to R (English UK Ltd) in relation to an argument on behalf of the Secretary of State that the decision in Pankina was confined to the dis-application of the three month rule. The UT, in each case, simply noted that Foskett J had concluded that Pankina was of wider application. They clearly did not regard that decision as authority that the Secretary of State could introduce mandatory evidential requirements by way of Policy Guidance and require them to be strictly applied as though they were part of the Immigration Rules.

Discussion

[50] On an application for judicial review of the refusal by the UT of permission to appeal to itself, the court will first ask whether the decision of the FTT raises an issue of law. That is important because appeals from the FTT to the UT are only on points of law: s.11(1) Tribunals, Courts and Enforcement Act 2007. In the present case, I am of the view that that is clearly satisfied, since the strict insistence on certain documents which resulted in the exclusion from consideration of the SKI audit and various other documents was arguably, and I need go no further than that at this stage, contrary to the guidance given by the Court of Appeal in Pankina. Because the decision of the FTT was on a point of law, and the point of law was arguable, permission to appeal to the UT should have been granted by the FTT, which failing by the UT.

[51] The question then arises whether the decision of the Senior Immigration Judge refusing permission to appeal to the UT should be reduced. It by no means follows that every wrong decision refusing permission to appeal should be reduced: see Cart and Eba. On the first part of the test, the decision should only be reduced if the proposed appeal raises an important point of principle or practice. To decide this question, the court hearing the petition for judicial review clearly has to form a view both as to the importance of the point and its likely outcome, since however important the point of principle or practice might be there would be little point in permission to appeal being granted if the answer was obvious and the appeal was bound to fail. However, at the same time, this court must be wary of trespassing on the role of the UT, to which the decision on any appeal is entrusted, or on the role of the Court of Session on appeal from the UT (if permission to appeal is granted). Any view formed as to the merits should at this stage be provisional only. I should therefore limit my observations on this part of the test to the following.

[52] In my opinion, the present application and proposed appeal does raise an important point of principle or practice upon which there appear to be different views. The question is essentially whether the reasoning in Pankina applies solely to changes to the substantive requirements for the grant of leave to remain, or applies also to the issuing of Policy Guidance prescribing the means by which the various eligibility criteria laid down in the Immigration Rules can be proved. Pankina clearly establishes that the Secretary of State may not, in Policy Guidance, lay down or alter the substantive requirements for eligibility for leave to remain. That is a matter requiring parliamentary scrutiny by way of the Immigration Rules being laid before Parliament. Does this apply also to what I shall call for short procedural rules, including rules as to the way in which the applicant is permitted to prove that he meets the eligibility criteria? Pankina did not decide that question. But the reasoning in Pankina is nonetheless of importance. There is no doubt that the Secretary of State is allowed to lay down procedural rules in Policy Guidance. But what role does such Policy Guidance, which in this case specifies the evidence required to prove an entitlement to remain, have to play in the determination of an application? Should it be applied inflexibly as though part of the Rules? Or should consideration always be given, on a case by case basis, to whether it should be applied flexibly, having regard to the object sought to be achieved, as would be the case if it were applied simply as Policy Guidance and not as though it was part of the Rules?

[53] That this point is one of importance is demonstrated by the two UT decisions to which I have referred and by the arguments in this case. Clearly both Pankina and R (English UK Ltd) were cases where the mischief was the introduction of further substantive requirements by means of Policy Guidance or the like. The UT cases, on the other hand, were cases which called into question the status of Policy Guidance itself, on procedural matters relating to the evidence required to prove eligibility, and both held that Policy Guidance did not operate as part of the Immigration Rules. In this case, therefore, the petitioner has authority on his side, and the Secretary of State has to argue that the effect of Pankina is more restricted than it has been held to be by the UT.

[54] Of course, not every point of principle or practice on which there is a divergence of view will justify the reduction of the refusal of permission to appeal on a petition for judicial review. The point must be an important one. I have found that it is. It must also be a sufficiently arguable point to justify this court interfering with the refusal of permission to appeal. For reasons which appear from my discussion of the cases, I am of the opinion that the petitioner's case is seriously arguable. If it is necessary to go further, I consider that it is more likely to succeed than to fail. If the Policy Guidance had been applied for what it was, namely guidance, rather than applied strictly as part of the Immigration Rules, there is every prospect that the person making the decision on behalf of the Secretary of State, failing which the Immigration Judge, would have applied it flexible and, having regard to the objective of the policy, had regard to the SKI accounts and other supporting documents and held that the applicant did indeed score the necessary point to be granted leave to remain. But this can only be a provisional view, which is all that is required at this stage.

[55] Accordingly, under this head I would grant decree of reduction of the decision of the UT to refuse permission to appeal.

Some other compelling reason

[56] An error of law, if it be an error, in refusing to take any account of the SKI accounts and other documents, such as invoices, because they did not fall within the categories of specified documents laid down in the Policy Guidance is not irrelevant to the question of whether there is some other compelling reason for reducing the decision of the UT to refuse permission to appeal to itself. But, as the dicta in the cases show, it is seldom likely to be sufficient in itself. At best it would show that an error of law was made which has, or may have, serious adverse consequences for the individual applicant. That, without more, will not constitute a compelling reason for the grant of judicial review. Extreme consequences for the individual are not generally to be regarded as sufficient as a free-standing ground for holding that there is "some other compelling reason": see PR (Sri Lanka) v Secretary of State for the Home Department at para.36. Nonetheless, they are not irrelevant, since the assessment of whether there is some other compelling reason has to have regard, so it seems to me, to the whole picture, and a combination of events, each one of which may not be sufficient in itself, may add up to a state of affairs where it can properly be said that there has been a result which is not just wrong but perverse, or where (to use the language in Cart) there has been a wholesale breakdown of fair procedure, so that it can be said (per Lord Hope in Eba) that in reality the applicant has not had a fair hearing at all.

[57] Mr Webster, in his submissions on behalf of the Secretary of State, placed emphasis on the words "at all" in the words of Lord Hope at the end of that summary; and rightly so, since they show that it is only in the extreme case that judicial review will be granted under this head. But the court must be careful not to let words of description become a kind of mantra, laying down a precise and restrictive test which would exclude almost every situation. The concept of a wholesale breakdown of fair procedure or a situation where in reality it can be said that the applicant has not had a fair hearing at all is intended to be descriptive of a state of affairs the details of which will vary from case to case. Ultimately the court will have to form a view on the totality of the evidence rather than engage in a box ticking exercise to see whether some particular facet is or is not present.

[58] The substance of the complaint here relates to the treatment by the FTT of the accounts prepared by Hafeez & Co. It will be recalled that in the refusal letter, the Secretary of State took only one point on these accounts, and that was that they were not signed by the applicant himself:

"However, the accounts do not bear your signature of approval and we are therefore unable to accept the accounts as evidence of earnings derived from self-employment."

Before me, Mr Webster very fairly disclaimed any reliance on that objection. On an appeal to the FTT, it is for the applicant (appellant) to persuade the Immigration Judge that the refusal by the Secretary of State to grant leave to remain was wrong. It is accepted by Mr Caskie, for the petitioner, that the burden lies on the applicant. He must persuade the Immigration Judge, on balance of probabilities, that he meets the criteria set out in the Immigration Rules for eligibility for leave to remain which relate to his particular category. To that extent, in theory at least, he starts afresh. He has to put the relevant material before the Immigration Judge and satisfy him that it is sufficiently credible and reliable to justify a conclusion that the eligibility criteria are satisfied.

[59] But that, it seems to me, is only half the story. When he appeals to the FTT, the appellant has had a decision and knows what points have been taken against him. He therefore ought to be in a position to present his appeal in confidence that it is those points that he has to meet. If further points are to be taken, he should have notice of them. That is only fair. In the present case there does not appear to have been a letter from the Secretary of State lodged in the appeal process containing further submissions. Whether that is so or not, it was certainly not suggested to me at the hearing that the Secretary of State raised any further point about the accounts prepared by Hafeez & Co, other than the fact, which is not now relied on, that they were not signed by the appellant.

[60] Yet the Immigration Judge took it upon himself to conduct a forensic exercise of his own, as a result of which he concluded, in para.10 of his Determination and Reasons, that those accounts:

"are not credible or reliable evidence of the Appellant's previous earnings..."

His reasons for doing so were that when the Hafeez & Co accounts were compared with those produced by SKI, they appeared to be identical in every way, not only in the text but also in the at times abnormal spacings between letters. Those presented as accounts from Hafeez & Co appeared to have been

"copied and pasted [from the SKI accounts] using a personal computer and then a different heading and stamp applied."

The conclusion from this was that they were not credible, because

"If a new accountant had been asked to independently consider the Appellant's financial documentation and provide a letter and accounts for his Tier 1 application, it is not credible that he would have copied in every respect the text of the letter and accounts provided by a previous accountant."

[61] In effect, the Immigration Judge decided that the documents purporting to be from Hafeez & Co were not in fact prepared by them but were fabricated to look as though they were accounts from an independent accountant. They were, in effect, a forgery. The alternative reading of his reasoning is that Hafeez & Co themselves had not done any work on the accounts but had just used the accounts prepared by SKI and put their own heading and signature on them. It seems to me that this latter interpretation is less likely, but ultimately it matters not. The Immigration Judge decided that they were not credible or reliable. He therefor discounted them altogether. He does not even appear to have taken steps to cross-check them against the other information submitted by the applicant. Having formed the view from a comparison of the two documents that they were not credible or reliable evidence of the applicant's earnings, he simply put them to one side.

[62] There is no dispute that a comparison of the two sets of accounts shows that one has been cut and pasted from the other. But, with great respect to the Immigration Judge, this should be the beginning of the inquiry, not the end of it. The question he should then have asked was: what has happened and why has this been done? It might well be, as he suspected, that there was some forgery or fabrication. But there might be an innocent explanation. Common fairness requires that the applicant should be given an opportunity of answering the charge levelled against him or the evidence which he put forward. Yet the Immigration Judge proceeded to carry out his investigation and reach a conclusion that the Hafeez accounts were a forgery without informing the applicant of the point he was considering or giving him any opportunity whatever of answering the questions that arose. Mr Webster submitted that the applicant had opted for the written procedure and therefore could not complain if he was not asked to comment in the course of the Immigration Judge's consideration of the matter. There is nothing in that point. By opting for a written procedure, an applicant does not opt out of the requirements of fair procedure.

[63] The applicant has lodged in this process an affidavit from Mr Hafeez giving an explanation of what happened. Mr Webster complains that that affidavit should not have been lodged in process, but it seems to me entirely proper that the applicant should be able to not only complain about the approach taken by the Immigration Judge but also to show the court that there was an answer which he would have made had he been given the opportunity. It is not for this court to form a view as to whether that explanation is to be accepted. What is clear, however, is that in this respect the petitioner did not get a fair hearing before the FTT. I regard what happened as such a fundamental collapse of fair procedure that it would be right on this ground alone to reduce the refusal of the UT to grant permission to appeal. When combined with the other matters to which I have referred, it seems that the case for reduction of that decision is unanswerable.

[64] Other complaints were made about the decision of the Immigration Judge. He appears to have ignored completely the other evidence lodged by the applicant, such as invoices, bank statements and documents from HMRC showing his self-employed status and his earnings. No explanation is given as to why he does not mention these documents. Nor does he use them, as might be thought sensible if he is forming a view that the accounts are forged, to cross-check the figures in the accounts so as to reach a balanced view of their reliability. While these points in themselves might not be thought sufficiently serious to constitute a wholesale breakdown in fair procedure, they confirm, to my mind, that the petitioner has not really had his case considered fairly or at all.

[65] Mr Webster argued that, to some extent, it was the petitioner's own fault that he found himself in this position. He suggested that the reasons put in in support of his application for permission to appeal to the UT had not made all these points or at least had not made them clearly. If permission to appeal was refused because of inadequacy of representation made by those acting for the applicant, then that was the applicant's fault and he did not deserve a second chance by way of judicial review of the refusal of leave. I would not exclude the possibility of that argument being successful in the appropriate case, but it seems to me to have no force at all here. All of the points now raised were made to some extent in the applications for leave. Inevitably, the focus was on the complaint that the Immigration Judge had failed to apply the law as explained in Pankina, but complaint was also made about the other matters to which I have referred. So I would reject this line of argument. In fairness to the applicant, I should say that the response by the FTT and the UT to the points he did raise does not suggest that his application for permission to appeal was given the consideration it deserved.

Conclusion

[66] For these reasons I shall grant the petition and reduce the decision of the UT dated 19 April 2011 refusing the petitioner permission to appeal.