United Kingdom Asylum and Immigration Tribunal

JF (Para 320 refusal; substantive rule?) Bangladesh [2008] UKAIT 00008

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 20 November 2007

Date Determination notified: 08 January 2008

Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Grubb
Between

JF	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: No appearance For the Respondent: Mr L Tarlow, Home Office Presenting Officer
DETERMINATION AND REASONS

Where an ECO refuses entry clearance solely in reliance upon a ground in para 320 of HC 395 and the immigration judge concludes that the ground does not apply, subject to the requirements of fairness, the judge should proceed to determine the appeal under the substantive rule which was the basis for the Appellant's original application.

1. The Appellant is a citizen of Bangladesh who was born on 7 May 1986. On 3 October 2006 she applied for entry clearance to come to the United Kingdom to undertake a three year BA (Hons) in Tourism and Hospitality at the London East Bank College in Aldgate, London. The Appellant submitted a number of documents to the Entry Clearance Officer including a number of supporting financial documents which she claimed were bank statements relating to her uncle who was her sponsor. The Appellant was not interviewed. On the basis of a document verification report, the ECO concluded that he was not satisfied that the Appellant was related to the sponsor as claimed and that therefore she had submitted a false document in support of her application which he then refused exclusively on that basis. Consequently, on 15 October 2006 the ECO refused her application under paragraph 320(21) of HC 395. The ECO did not consider the application to the Appellant of the substantive student rule, namely para 57 of HC 395.
2. The Appellant appealed and, following a hearing, Immigration Judge Markham David having considered the evidence before him found that the Appellant and sponsor were indeed related as claimed and that therefore paragraph 320(21) of HC 395 did not apply to the Appellant. Having done so, the Judge went on to consider whether the Appellant was entitled to entry clearance under the Immigration Rules. The Judge allowed the appeal and directed that the appropriate entry clearance be granted. Upon the respondent's application, reconsideration was ordered by Senior Immigration Judge Chalkley on 1 June 2007 and so the matter comes before us.
3. The Appellant's representatives, Bucks Solicitors were not present at the hearing before us and they remained so despite a telephone call being placed to them when they confirmed that they were aware of the date of the hearing. There being no good reason for their absence, we considered it proper to exercise our discretion to hear the appeal in their absence under rule 19(1) of the 2005 Procedure Rules.
4. Mr Tarlow, who represented the Respondent, did not challenge the Judge's decision in relation to para 320(21). However, he submitted that the Immigration Judge, having found in the Appellant's favour in respect of para 320(21) of HC 395 should not have dealt with the substantive merits of the Appellant's application under para 57 of HC 395. Instead, the Judge should only have allowed the appeal to the extent that the Appellant's application remained outstanding before the ECO.
5. The governing legislative provisions are s 86(3) and (5) of the Nationality, Immigration and Asylum Act 2002 which provide that:

"(3) The Tribunal must allow the appeal in so far as it thinks that –

(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

…

(5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal."

6. In CP (Section 86 (3) and (5); Wrong Immigration Rule) Dominica [2006] UKAIT 00040 the Tribunal considered what was the proper approach, in the light of these provisions, where an Immigration Judge decided that the original decision-maker had applied the wrong rule. There it was submitted on behalf of the respondent, rather as in this appeal, that the correct approach was to allow the appeal as being not "in accordance with the law" and for the application to be reconsidered by the respondent under the correct rule. The Tribunal disagreed. It accepted that where the wrong rule had been applied the appeal should at least be allowed to the extent that it was "not in accordance with the law" but the Judge should go further. At paragraph [18] the Tribunal set out the correct approach as follows:

"…once the correct Rule is identified, it is the Immigration Judge's obligation to apply that Rule, subject to the requirements of fairness, so that the parties have a proper opportunity to deal with the relevant evidential and other issues that arise."

7. The Tribunal continued at paragraph [19]:

"If the Appellant succeeds on the evidence under the correct Rule, the appeal will, of course, be allowed in substance not merely because the original decision was legally defective having been made under the wrong Rule."

8. In principle, we consider that approach is equally applicable where the decision-maker wrongly applied (in the view of the Judge) a provision such as paragraph 320(21) and then failed to consider the substantive rule. Subject to the requirements of fairness, the Immigration Judge should proceed to decide the case under the substantive rule on the evidence presented at the hearing.
9. Of course, as the Tribunal made clear in CP the Immigration Judge should not proceed if it would be unfair to do so. This may well arise in an out of country case where, through no fault of the Appellant, the Respondent has retained relevant documentation submitted with the application which cannot therefore be presented at the hearing of the appeal. We do not, however, consider that it is necessarily unfair to proceed simply because one of the parties is not represented at the hearing. It is the obligation of the parties to present such evidence and make such submissions as they wish in relation to the appeal before the Tribunal. Both the Appellant and Respondent will be on notice that if the Judge takes the view that a provision in the Rules such as para 320 does not apply to the Appellant, the Judge is entitled to proceed to determine the appeal under the substantive rule which was the basis for the Appellant's original application.
10. In order to succeed in the appeal outright on the substantive rule, the Appellant must satisfy the Judge on each and every requirement within the Rule. Failure to do so on any part of the Rule will result in the appeal being dismissed. However, if the Immigration Judge considers that only some of the requirements of the Rule can be dealt with, he may well then be correct only to look at those requirements and to make findings in relation to them. If his findings are all in favour of the Appellant, the appeal will be allowed to that extent with a direction that the decision-maker should continue to consider the Appellant's application in accordance with the findings made by the Judge: see RM (Kwok On Tong: HC 395 para 320) India [2006] UKAIT 00039 at [11].
11. Turning to the current appeal, it is clear that the grounds for reconsideration cannot succeed. The Judge did not err in law when he considered the application of para 57 to the Appellant having reached the conclusion that the Entry Clearance Officer was wrong to decide that para 320(21) applied. It was the Appellant's obligation to present evidence in order to discharge the burden of proof upon her. The Appellant was represented and had submitted a bundle of evidence in support of the appeal. In these circumstances, we see no conceivable basis for saying that it was unfair to determine the substantive issue.
12. Nevertheless, the Judge's decision cannot stand. The Judge allowed the appeal and directed that entry clearance be granted. He could only do this if the evidence satisfied him that all the requirement of para 57 were met.
13. Paragraph 57 is in the following terms:

"The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:

(i) has been accepted for a course of study which is to be provided by an organisation which is included on the Department for Education and Skills' Register of Education and Training Providers, and is at either:

(a) a publicly funded institution of further or higher education; or

(b) a bona fide private education institution which maintains satisfactory records of enrolment and attendance; or

(c) an independent fee paying school outside the maintained sector; and

(ii) is able and intends to follow either:

(a) a recognised full-time degree course at a publicly funded institution of further or higher education; or

(b) a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or

(c) a full-time course of study at an independent fee paying school; and

(iii) if under the age of 16 years is enrolled at an independent fee paying school on a full-time course of studies which meets the requirements of the Education Act 1944; and

(iv) intends to leave the United Kingdom at the end of his studies; and

(v) does not intend to engage in business or to take employment, except part time or vacation work undertaken with the consent of the Secretary of State for Employment; and

(vi) is able to meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds."

14. The Judge's reasons for allowing the appeal outright are set out at paragraphs [11] and [12] of his determination as follows:

"11. The respondent has said that he has not considered this application under any of the other provisions of the Immigration Rules. In this case I shall do so now. In my view the sponsor's bank statement, which I am satisfied is genuine, show that he has ample funds to maintain the appellant for the duration of her BA course. I note that £2,500 has already been paid, which in my view is always a matter of some significance. It is highly relevant to the appellant's intention to follow the course, because if she gets to the United Kingdom and then says she does not wish to study, that money is not recoverable. It is only recoverable if she fails to get a visa. The payment of such a sum in advance is also relevant to the sponsor's willingness and ability to pay.

12. I am quite satisfied that the appellant is able and intends to follow the proposed course. There is no evidential basis for coming to any different conclusion. This is a genuine application to study in the UK, and the requirements of the Immigration Rules have been met."

15. We are left in no doubt that the brief excursus into the evidence and the reasoning in paras [11] and [12] that the Judge gave to reach the conclusion that the requirements of para 57 (at any rate those that he mentions) were met, are legally inadequate.
16. Paragraph 57(ii) requires that the Appellant establish that she "is able and intends" to follow the degree course upon which she had been accepted. There is no evidential basis for the Judge's conclusion that the Appellant is "able" to follow the proposed course. The evidence (such that there was before him) is barely referred to beyond the bank statements. Whilst the Judge was entitled to accept that the payment of the deposit for the course was some evidence of an intention to follow it, standing alone (and he refers to no other evidence) it cannot properly bear the weight he places on it to make the positive finding in the Appellant's favour. It can, however, have no relevance to the issue of the Appellant's ability to follow the course. But even if that were not so, fatal to his decision to allow the appeal outright is the fact that he made no finding that the Appellant meets the requirement in para 57(iv), namely that she intends to leave the United Kingdom at the end of her studies. An appeal can only be allowed outright if all the requirements of the Immigration Rules are met (see RM). For these reasons, the Judge materially erred in law and his decision to allow the appeal cannot stand.
17. We must, therefore, substitute our own decision. The evidence before us is identical to that which was before the Judge. The Appellant, and those representing her, have not filed any additional evidence for the reconsideration. It is rather limited. We have a bundle of documents relating to the Appellant's application and in particular in relation to the issue of whether she was indeed related to the sponsor as she claimed. The latter, of course, is no longer an issue. The Appellant's own witness statement date 19 May 2007 is almost exclusively concerned with establishing her relationship with the sponsor. The exception is paragraph [9] of that statement where she says as follows:

"I have strong family, social and economic ties with Bangladesh and the United Kingdom. I have excellent academic backgrounds and qualifications. I have a better prospect if I obtain a qualification form (sic) UK. I am genuinely seeking entry to take a course of study in the UK".

18. We also have the Appellant's visa application form in which she sets out the course she intends to follow which is supported by a letter from the London East Bank College dated 12 September 2006 confirming that she has been accepted by that institution on the BA(Hons) in Tourism and Hospitality course for three years commencing on 23 October 2006. The course fees are noted there and also it is noted that a deposit was paid of £2,500.
19. The Appellant's application provides some further evidence of her intentions. In answer to questions posed there she states that the UK course and its subject-matter have value throughout the world especially in Bangladesh. On completion she says that she will return to Bangladesh where it will benefit her to obtain a good job. She states that the costs of the course, accommodation and other matters will be about £9,910 per year. She acknowledges that English is not her first language but that she has completed a three month long course from International Language Academy.
20. The financial statements of the Appellant's uncle include a bank statement covering the period 1 January 2006 to 19 September 2006. It shows an opening balance of 919.37 Taka and a closing balance of 3,009,083.12 Taka. There is a letter of support for the sponsor's financial position dated 19 September 2006 from the Dhaka Bank Ltd. There is also a notarised affidavit from the sponsor attesting to his financial support for the Appellant.
21. In relation to the Appellant's course, taken at face value the letter of acceptance from the London East Bank College dated 12 September 2006 shows that the Appellant has been enrolled on the degree course in Tourism and Hospitality at that institution. We know no more, however, about the institution or the course than can be seen from the face of that letter. As we have noted, the Appellant (and her representatives) have not filed any additional supporting evidence despite the terms of the Tribunal's reconsideration notice.
22. In relation to the issue of whether the Appellant is "able" to follow the course as required by para 57(ii), we note that her English qualifications in Bangladesh were, apparently, thought insufficient and so she undertook a three month course English language course. However, the Appellant did not provide any supporting documentation in respect of that course which she claimed in her application she had undertaken, presumably in order to enable her to study the degree course in English.
23. In our view, taking what limited evidence we have before us as a whole the appeal cannot succeed as the Appellant has not established on a balance of probabilities that the requirements of para 57(i) and (ii) were met at the date of decision. For this reason alone, the appeal must be dismissed. We need say no more in relation to the evidence as it relates to the remaining requirements of para 57.

Decision

24. For these reasons, the Immigration Judge's decision discloses a material error of law and cannot stand. We substitute a decision dismissing the appeal on the basis that the Appellant has failed to establish that she met all the requirements of para 57, namely para 57(i) and (ii) of HC 395 at the date of decision.

SENIOR IMMIGRATION JUDGE GRUBB