S85 and new evidence - Once more in the spotlight

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 "