McGill & Co Solicitors Blog

Unfairness and the restriction on evidence in points based system appeals

20 January 2012 —-The Upper Tribunal’s determination of the in Naved (Student – fairness – notice of points)[2012] UKUT 14 (IAC) focuses on the effects of section 85A of the Nationality Immigration and Asylum Act 2002, which was brought into force in May of 2011, but the Tribunal’s recognition that its jurisdiction entitles it to allow an appeal against any decision taken by the UKBA on the basis of straightforward unfairness seems to indicate the arrival of a new era in decision making by the First and Upper Tier Tribunal.

Section 85A has always been controversial. Effectively it prevents the Tribunal from taking into account, in any appeal against a PBS decision , any evidence relevant to that decision unless it was sent to the UKBA at the time of the initial application.
However, tides are shifting and the Upper Tribunal is resolving this matter by reference to its developing case law regarding “unfairness”.

Since the Tribunal had a “public law” jurisdiction (- it was permitted under section 84 (1) (e) of the Nationality Immigration and Asylum Act 2002 to allow appeals where the decision was “not in accordance with the law”) the Tribunal could and should allow appeals in such circumstances – See Thakur (PBS decision – common law fairness) Bangladesh[2011] UKUT 00151 (IAC) and latterly in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 211 .

In Naved the Tribunal noted that both of its decisions in Patel and in Thakur had been brought to the attention of the Court of Appeal in the case of Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320. Quoting Lord Justice Aitken’s remarks in that case the Tribunal said:

“The Court of Appeal has accordingly confirmed our appellate jurisdiction to conclude that a particular decision is unfair, and so not in accordance with the law ”

UKBA today announced yet further amendments to the English Language tests for applications under Teir 1, 2 & 4 of PBS for applicants and spouses. The amendments include:
– the City & Guilds test scores now show ‘pass’ and there is a separate English language test for spouse/partner applications.
- for City & Guilds tests the documents required for a migrants application have been amended.
- ETS have changed the way that the scores for their TOEFL ibt (internet based test) map against the Common European Framework of Reference (CEFR).
- the ETS TOEFL ibt (internet based test) now includes scores for spouse and partner applications.
- there is a change to the web address for the TOEIC (The test of English for international communication) English language test.
- Cambridge ESOL (English for speakers of other languages) have amended the title of one of their tests from ‘International Legal English Certificate’ to ‘Cambridge English Legal’.
- Trinity College tests now have a 2 year expiry date.
There is also a newly published list for English Language tests effective from 24th January. See http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/new-approved-english-tests.pdf

Its certainly important to keep a close eye on the Immigration Rules. UKBA could perhaps be accused of being sore losers at times.

CDS (PBS: “available”: Article Eight) Brazil [2010] UKUT 00305 (IAC) is an important tribunal case that held (amongst other things) that a Tier 4 Student applicant could rely on funds from willing 3rd parties.

The critical issue was that whilst UKBA may have liked to be more restrictive, the rules were not drafted as such, merely stating that an applicant had to have funds ‘available’.

UKBA’s response to losing? Change the rules! In March 2011, Statement of Changes HC908 changed the rules to be more restrictive.

This trend is fairly common. Rules are drafted, challenges or attempts to clarify are brought to the tribunal, a case comes out and then the rules are changed. The PBS system rules in particular have become an utterly confusing mess.

This incremental alteration is probably not in anyone’s interest. Each change brings its own problems of interpretation, and what you are left with is an ever shifting position, with important and well reasoned cases almost out of date by the time they are promulgated.

From 1 January 2012 UKBA will begin processing visitor visas for those coming from outside the UK to watch the Olympic and Paralympic Games. The Games will be the biggest event that the UK has hosted and many extra visitors will arrive during the busy summer period in 2012.

UKBA has announced that if a visa is to be issued , you will have a start date that will cover you for the whole Olympic and Paralympic Games period although the announcement does state that the visa will normally be valid for the usual 6 month duration.
See UKBA web link for further details.

http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2011/december/70-olympics-visas