(Immigration and Asylum Chamber) Appeal Number: IA/08143/2013
THE IMMIGRATION ACTS
Heard at Field House
on 9th October 2013
on 7th November 2013
UPPER TRIBUNAL JUDGE HANSON
(Anonymity order not made)
For the Appellant: Mr Nath – Senior Home Office Presenting Officer.
For the Respondent: Mr Sharma instructed by Blackstone Law Associates.
DETERMINATION AND REASONS
1. This is an appeal against a determination of First-tier Tribunal Judge Colvin promulgated on 13th August 2013 in which she allowed the appeal under the Immigration Rules against the refusal of the Secretary of State to vary Ms Fardi’s leave so as to permit her to remain as a Tier 1 (General) Migrant. The Secretary of State also issued a direction for her removal pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006.
2. Ms Fardi was born on the 4th June 1980 and is an Iranian national. Her immigration history shows she entered the United Kingdom lawfully on 7th April 2011 with a Tier 1 (General) Migrant visa valid until 26th January 2013. The current application was made ‘in time’ on 21st December 2012 and refused on the 1st March 2013 because the Secretary of State found that although she had claimed points for earnings of £35,182.03 in the UK she had not met the requirements to be awarded a minimum of 80 points under Appendix A of the Immigration Rules.
3. Judge Colvin considered the written and oral evidence and set out what she thought to be the applicable legal self direction in paragraphs 9 in 10 of the determination. In paragraph 11 Judge Colvin noted that the documentary evidence supported Ms Fardi’s claim that her income was in fact £51,181 and that the lesser figure had been submitted in error. The Judge also found that Ms Fardi tried to correct the error during a telephone conversation with UKBA in January 2013 prior to the refusal decision and despite being told she will be written to, this did not happen. The Judge accordingly found that on the basis of her acceptance of the higher earning figure Ms Fardi was entitled to 30 points in respect of earnings, meaning she had the requisite number of points to enable her to succeed with her application, as result of which the appeal was allowed.
4. The Secretary of State sought permission to appeal on the basis that section 85A of the Nationality, Asylum and Immigration Act 2002 states that evidence can only be considered if it was submitted with the application and that at the date of the application Ms Fardi did not have the required evidence to show that she met the requirements of the Rules. The grounds allege the Judge failed to give adequate reasons for why she considered she was able to admit evidence that arguably she was prevented from considering by the statutory provisions. The grounds also allege the Judge failed to apply the principles set out by the Court of Appeal in Raju and others  EWCA Civ 754 in which it was held that an applicant had to provide all the information at the date of application.
5. In paragraph 9 of her determination Judge Colvin set out the correct legal self direction relating to section 85A and in paragraph 10 states the following:
10. There is now the decision in Rodriguez (Flexible Policy)  UKUT 42 which refers to the ‘evidential flexibility‘ policy document relevant to the processing and determination of applications under the PBS.
6. Rodriguez is subject to an appeal to the Court of Appeal as, on the face of it, it appears to be contrary to the decision of that court in Alam and others  EWCA Civ 960. Whilst onward appeals do not prevent a judge from relying upon an authority it is also relevant to note that the policy upon which that decision is based expired on 30th June 2011. The Secretary of State issued a further policy although for all applications made after 6th September 2012 the ‘evidential flexibility’ policy has now been incorporated into the Immigration Rules at paragraph 245AA, the current version of which states:
245AA. Documents not submitted with applications
(a) Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the Entry Clearance Officer, Immigration Officer or the Secretary of State will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).
(b) If the applicant has submitted specified documents in which:
(i) Some of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing);
(ii) A document is in the wrong format (for example, if a letter is not on letterhead paper as specified); or
(iii) A document is a copy and not an original document; or
(iv) A document does not contain all of the specified information;
the Entry Clearance Officer, Immigration Officer or the Secretary of State may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received at the address specified in the request within 7 working days of the date of the request.
(c) Documents will not be requested where a specified document has not been submitted (for example an English language certificate is missing), or where the Entry Clearance Officer, Immigration Officer or the Secretary of State does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.
(d) If the applicant has submitted a specified document:
(i) in the wrong format; or
(ii) which is a copy and not an original document; or
(iii) which does not contain all of the specified information, but the missing information is verifiable from:
(1) other documents submitted with the application,
(2) the website of the organisation which issued the document, or
(3) the website of the appropriate regulatory body;
the application may be granted exceptionally, providing the Entry Clearance Officer, Immigration Officer or the Secretary of State is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The Entry Clearance Officer, Immigration Officer or the Secretary of State reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).
7. The Judge failed to give adequate reasons for why the statutory provisions were not determinative on the facts and failed to consider the decision in Raju in which the Court of Appeal made it clear that AQ (Pakistan) v SSHD  EWCA Civ 833 was "not authority for the proposition… that applications were "made" throughout the period starting with the date of their submission and finishing with the date of the decisions" and the decision in Khatel and others (s85A; effect of continuing application)  UKUT 44 (IAC) to the contrary was set aside. As a result the documents Judge Colvin considered should only have been those submitted with the application if she accepted that a lawful decision had been made.
8. I find Secretary of State has established that Judge Colvin failed to give adequate reasons for why the restrictions contained in the statutory provisions, reinforced by decided authorities, were not applicable to the facts of the case advanced by Ms Fardi. I therefore set the determination aside and shall proceed to remake the decision.
9. There is no challenge the factual findings set out in paragraph 11 of the determination which shall be preserved findings and which are in the following terms:
11. I have had the benefit of receiving oral evidence from the appellant and being able to ask questions to clarify her account. I have had no reason to disbelieve her and found her to be a genuine and credible witness. She has also put together a comprehensive and relevant bundle of documents. These include documents from her accountants, from HMRC and invoices relating to her self employed business. It is on the basis of these documents that I find that she did err in her original statement as regards herself employed earnings with her company. It is acknowledged by her accountants that she could have included the three invoices issued in November into her accounts for that period even though they were not yet paid. There are letters from these three people confirming receipt of the invoices which have now been paid in July 2013 as shown in the appellant's bank statements. I therefore find that her total earnings for the period ending 30th of November 2012 was £51,181. I also find that the appellant tried to correct this error during a telephone conversation with UKBA in January 2013 prior to the refusal decision but was told that she would be returned to and this did not happen. There is also no doubt in this case that the appellant has fully adhered to immigration requirements in the past.
10. The remaining issue is, on the face of it, relatively straight forward in that Ms Fardi accepts that when she completed the application made on 21st December 2012 she incorrectly stated that her income was the lower of the two figures referred to above, as a result of the omission by her of three invoices. She accepts that she did not therefore provide the information that she later sought to rely upon with the application which the Secretary of State argues is fatal to her claim as it is only evidence provided with the application that can be taken into account. What is different in this case is that having discovered the error Ms Fardi telephoned UKBA and explained to them what had occurred. The Judge accepted that this telephone call was made in January 2013 which was shortly after the date of application, and before the date of decision. Ms Fardi was told that she would be written to yet received no further correspondence until the refusal notice. An earlier letter of 28th December 2012 acknowledging receipt of her application specifically states "please do not send any additional documents to us unless requested to do so by a case worker". This is the standard letter issued to all applicants.
11. As a result of the advice given during the telephone call Ms Fardi was entitled to await further correspondence from the Secretary of State, especially in light of the content of the 28th December letter referred to above. Notwithstanding the fact she had advised UKBA there were missing documents all she received was the refusal of her application on one ground only, that relating to the availability of earnings which the missing documents related too. Had the application been refused for other reasons that may have been the end of it, but it was not.
12. In Alam v SSHD  EWCA Civ 960 the Court of Appeal held that even in the context of such a statutory scheme the public law requirement of fairness must still be observed and fairness may impose additional obligations on the Secretary of State as decision maker under the PBS.
13. I find Ms Fardi’s treatment has been conspicuously unfair. The application for leave to remain was refused because of her failure to produce documents which she had proving her actual earnings were above the minimum required level but which she was never asked to produce, despite her informing UKBA of their omission and availability. Given that the case worker, to whom some credit must be given for noting an error made by Ms Fardi in relation to the points claimed on the basis of her age and correcting the application accordingly, was no doubt aware of the consequences of s. 85A when he or she made the decision in this case the Secretary of State was under a common law duty to act fairly in deciding this application; whereas her conduct in relation to this matter is tainted with unfairness.
14. This is not a case in which the Secretary of State had no knowledge that additional evidence existed as the telephone call was made advising her of what had occurred. It is arguable that the fairness requirement should have led to Ms Fardi being contacted, as she was told she would be, and being given the opportunity to file the additional documents. The case worker could then have decided whether to admit them, on the basis of discretion outside the rules/statutory provisions if necessary, or to have rejected them but to have given adequate reasons either way. In this case the case worker did nothing.
15. In light of the above I find that there has been a breach of the public law requirement of fairness which in this appeal imposed additional obligations upon the Secretary of State as the decision maker. I find that the refusal is therefore not in accordance with the law and that the matter must be returned to the Secretary of State for a lawful decision to be made, as both advocates accepted. A failure to act fairly is a failure to act in accordance with the law and a failure to make a decision in accordance with the law is a ground of appeal to the tribunal under s.84(1)(e) of the Nationality Immigration and Asylum Act 2002.
16. I also note the removal direction made pursuant to section 47 of the 2006 Act and no indication that this decision was withdrawn. The making of such a decision contemporaneously with the rejection of the substantive appeal, at the date of this decision, is also a decision that is not in accordance with the law. Section 51 of the Crime and Courts Act 2013 substituted a new sections 47 (1) and (1A) into the Nationality and Immigration Act 2006 from 8th May 2013 (Crime and Courts Act 2013 (Commencement no 1) Order (SI 2013/1042). The amendment to s.47 is not retrospective.
17. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed to the limited extent it is remitted to the Secretary of State.
18. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I make no such order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008) as there was no application for anonymity and such an order is not justified on the facts.
Upper Tribunal Judge Hanson
Dated the 15th October 2013