Alam & Ors v Secretary of State for the Home Department

In addition to adopting these submissions, Mr. Kannangara contended that the Upper Tribunal erred in dismissing Mr. Anwar’s appeal because:

Miss Ammal’s additional submissions on behalf of Miss Eghan were as follows:

In paragraph 42 of its determination the Upper Tribunal said:

“We appreciate that our interpretation of the Commencement Order is bold and, in addition, we have not reached it on the basis of the submissions Mr. Malik made to us. Anyone seeking to defend any other interpretation, however, will have to explain why any of the results set out in paragraphs 27 to 33 above either were intended or are desirable.”

The references in article 3 of the Order to the “First-tier Tribunal of the Immigration and Asylum Chamber”, rather than the “First-tier Tribunal (Immigration and Asylum Chamber)” are unfortunate, but I do not accept that they indicate “a complete misunderstanding of the system” (paragraph 25), or that the misdescription is such that “there is no case in which the transitional provision in article 3 of the Order could apply” (paragraph 35). Mr. Malik did not submit that the misdescription had such an effect, and I accept Mr. Swift’s submission that if the text of an enactment has been garbled by the inclusion of wrong words, the duty of the Court is to rectify the text so as to give it the intended grammatical meaning: see Bennion “Statutory Interpretation” (5^th Edn., 2008) Section 287, at page 878. The draftsman’s intention is clear, and the substitution of “First-tier Tribunal (Immigration and Asylum Chamber)” for “First-tier Tribunal of the Immigration and Asylum Chamber” is a minor rectification which is plainly justified in order to give article 3 its intended meaning. Although the title “Immigration Judge” no longer has any statutory basis (paragraph 28), in May 2011 when the Order was made it was, and still is, in common use as a convenient description of a judge sitting in the Immigration and Asylum Chamber of the First-tier Tribunal. No doubt article 3 should have been better drafted, but its meaning is clear.

As a matter of first impression, a transitional provision that excludes those appeals where a hearing has taken place and which are still pending from a change in the law as to the evidence which may be adduced on an appeal is not unreasonable: the hearing will have been conducted on the “old” evidential basis. If a hearing has yet to take place, it can be conducted on the “new” evidential basis. If the hearing was a case management review, the parties will have been directed to prepare for the substantive hearing of the appeal on the “old” evidential basis. I accept that, on closer examination, adopting the taking place of a hearing as the trigger mechanism for the operation of the transitional provision in article 3 will produce a number of anomalies and inconsistencies as described in paragraphs 27-32 of the Upper Tribunal’s determination. Those results may not have been intended and they are not desirable, but I do not accept that they are so “bizarre” that article 3 must be disregarded. Neither the minor infelicities in drafting nor the, admittedly odd, consequences of giving effect to article 3 in certain circumstances justify the Upper Tribunal’s conclusion (paragraph 36) that “in effect article 2 of the Order stands by itself.”

When conferring the general power in section 59(2) of the 2007 Act to bring the remaining provisions of the Act, other than section 17, into effect by order, Parliament must have appreciated that, when it was brought into force, section 19 would, in the absence of any transitional provision, be bound to have a retrospective effect, in that it would place a restriction upon the evidence that an appellant could adduce on an appeal against an immigration decision that would, by definition, have been taken by the Respondent at an earlier stage. Notwithstanding the fact that section 19 was, in Mr. Swift’s words, a “backward looking” provision in this respect, Parliament conferred a broad discretion upon the Secretary of State as to whether the order bringing it into force should include any, and if so what, transitional provision: see section 59(3)(c).

Against this background, it is plain that article 2 was intended to have a retrospective effect in the sense that, as from 23^rd May 2011 it would restrict the evidence which could be adduced on any appeal, including a pending appeal, against an earlier immigration decision, other than those appeals where a hearing (including a case management review hearing) had taken place before 23^rd May 2011. As the Upper Tribunal observed (paragraph 38) this retrospective effect is clearly intended. Was the Upper Tribunal entitled not to give effect to that clear intention on the basis that article 2 should be construed so as to avoid a “real injustice”?

The Upper Tribunal recognised that, on its face, section 19 of the 2007 Act introduces changes that relate to procedure (paragraph 39), but after considering the effect of the changes rather more widely it concluded that article 2 should be construed as affecting substantive rights and not merely procedure (paragraph 41). In Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, Lord Rodger, having referred to the presumption that legislation does not affect pending proceedings (paragraph 198), drew attention to the distinction between statutes which change substantive law and statutes which alter matters of “pure procedure”:

“ 199 …..As can be seen from the statement of Wright J in In re Athlumney [1898] 2 QB 547, 552 which I quoted above, changes in matters of pure procedure have been treated differently. Wilde B stated the position most starkly in Wright v Hale (1860) 6 H & N 227, 232: “where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.” The justification for treating matters of pure procedure differently was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62, 69: “No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done.”

Having said that it had not always proved easy to apply the distinction between matters of substance and matters of pure procedure (paragraph 200), he suggested in paragraph 201 that, applying Lord Mustill’s approach in L’Office Cherifen v Yamashita-Shinnihon Steamship Co. Ltd. [1994] 1 AC 486 at pp 527G-528C,

“…. an appropriate test might be formulated along these lines: would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be “so unfair” that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions.”

Applying this test, I do not consider that the consequences of applying article 2, subject to the transitional provision in article 3 (see above), to all appeals as from the 23^rd May 2011 are “so unfair” that the article must be interpreted as having effect only where the applicant’s application to the Secretary of State was made on or after 23^rd May 2011. Such a drastic re-writing of the Order is unnecessary in any event. The anomalies identified in paragraphs 27-32 of the Upper Tribunal’s determination would be avoided by interpreting article 2 as though it had effect only where the appellant’s appeal against the Secretary of State’s immigration decision was made on or after the 23^rd May 2011 (the fall-back position of both Mr. Swift and Mr. Malik), but that is not what article 2 says, and I am not persuaded that giving the article its plain and ordinary meaning would cause such unfairness as to compel the Court to adopt the parties’ fall-back position.

It is true that bringing section 85A into force deprived applicants under the PBS of a “second bite at the cherry”. However, the Immigration Rules, the Policy Guidance, and the prescribed application form all made it clear that submission of the specified documents with the application was mandatory: if the specified documents were not produced with the application it would be refused. While section 85(4) did give appellants an opportunity to remedy a failure to produce the specified documents, it is not suggested that these three applicants were thereby lulled into a false sense of security, and took less care when completing their application forms because section 85(4) was not then subject to the exceptions in section 85A. There is no suggestion that the appellants were even aware of the Tribunal’s discretion to admit new evidence on an appeal under section 85(4), much less that they relied on it when making their applications; they simply made a mistake in completing their applications. While it is true that section 19 had lain dormant for many months after the 2007 Act had received the Royal Assent on 30^th October 2007, any applicant for leave under the PBS who was so familiar with the appeal provisions in the 2002 Act that he relied on the opportunity to correct errors in his application on appeal under section 85(4) would also have been well aware of the fact that there was a risk that section 85A might be brought into force by order at any time, and there was no certainty as to what, if any, transitional provision might be made in the order bringing it into force. Mr. Malik referred to the draconian consequences of a failure to supply a specified document but that is an inherent feature of the PBS which puts a premium on predictability and certainty at the expense of discretion. In the context of appeals against decisions under the PBS, the broad discretion conferred upon the Tribunal by section 85(4) was an anomaly. Those who relied on its existence did so in the knowledge that after 30^th October 2007 the anomaly might be ended at any time.

In his Skeleton Argument Mr. Malik submitted that an appeal was “heard” by the Tribunal for the purpose of article 3(2) of the Order when it was received by the Tribunal. He did not pursue this argument in his oral submissions, and in my judgment he was wise not to do so. As the Notice of Hearing in Miss Eghan’s case demonstrates (see paragraph 7 above) the hearing (if there is one) before the Tribunal is a distinct stage of the appeal process. Lodging the Appeal Form with the Tribunal does not amount to a hearing.

In his oral submissions Mr. Malik relied on the Upper Tribunal’s reasoning in Shahzad, although he accepted that the court could and should rectify the errors in article 3 of the Order to which the Upper Tribunal referred in paragraphs 25 and 26 of its judgment: see paragraph 28 above. In addition, he drew attention to subsection 59(4) of the 2007 Act which provides that an order commencing section 32 may apply that section in a retrospective manner to persons convicted before the passing of the Act. He submitted that the lack of a comparable provision in respect of an order commencing section 19 of the Act meant that an order could not be made under article 2 which brought section 19 into force in a retrospective manner.

In my judgment, the fact that subsection (4) enables an order commencing section 32 to include a particular form of transitional provision does not impliedly constrain the breadth of the discretion conferred by subsection 59 (2). The Order bringing section 19 into force on 23^rd May 2011 was within the scope of the power conferred by section 59 (2). The Order was prospective, in that when made on 17^th May 2011 it brought section 19 into effect at a future date, admittedly only a few days later on 23^rd May 2011. Insofar as the new section 85A limits the evidence admissible on appeal it removes the opportunity for “a second bite at the cherry” in respect of earlier decisions to refuse applications under the PBS, but it does not retrospectively alter the basis upon which those applications were to be allowed or refused under the Immigration Rules. Insofar as it is helpful to distinguish between procedural and substantive rights (see paragraph 33 above) the “second bite at the cherry” was a procedural, not a substantive, right: the appeal to the Tribunal enabled a successful appellant to establish a substantive right. Parliament clearly intended section 85A to operate as from 23^rd May 2011 (subject to article 3 of the order). While the Order results in some anomalies, for the reasons given in paragraphs 34 and 35 (above), they are not “so unfair” as to justify a departure from the plain words of the Order.

Mr. Malik submitted that the exceptions in section 85A related to appeals under section 82(1) of the 2002 Act. The right to appeal from the Tribunal to the Upper Tribunal was conferred by section 11(1) of the Tribunals, Courts and Enforcement Act 2007, so the Upper Tribunal’s power to hear fresh evidence was not constrained by section 85A. This submission was considered by the Upper Tribunal in Shahzad as Issue D: see paragraph 14 of the Upper Tribunal’s determination. The Upper Tribunal rejected the submission in paragraph 48 of its determination. On this issue, I agree with the Upper Tribunal.

The Upper Tribunal said that its conclusion that section 85A applied when the decision was remade by a judge of the Upper Tribunal was supported by the decision of this Court in LB (Jamaica) v Secretary of State for the Home Department [2011] EWCA Civ 1420. The issue in that case was whether an appeal from the Upper Tribunal to the Court of Appeal was to be treated as abandoned under section 104 (4A) of the 2002 Act because, after the grant of permission to appeal, the Secretary of State had granted the appellant indefinite leave to remain in the UK. Subsection (4A) referred to “An appeal under section 82(1)…” Mr. Malik’s submission that an appeal to the Court of Appeal was not an appeal under section 82(1) was not accepted by the Court. Moses LJ (with whom Baron J and Maurice Kay LJ agreed) said in paragraphs 12 and 13:

“12……In my view, the reference in subsection (4A) to an appeal under section 82(1) has to be read with the identification of the period during which an appeal under section 82(1) remains pending as identified in (1) and (2) of section 104. The appeal remains alive throughout the period until it is finally determined or abandoned. Subsection (2) identifies that period during which it is not finally determined by specific reference to the period pending final determination of an appeal to the Court of Appeal: see section 104(2)(b).

13.

In those circumstances it seems to me impossible to confirm the construction of what is meant by an appeal under section 82(1) to an appeal to the First Tier Tribunal without incorporating within it all those circumstances identified in the earlier part of the same section, namely an application for permission to the Court of Appeal that is awaiting determination or permission to appeal and the period up until final determination of that appeal.”

This ground was raised by Mr. Malik as Issue C in Shahzad. The Upper Tribunal rejected the submission in paragraphs 45-47 of its determination. The interrelationship between the policy underlying the “one stop procedure” considered in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, and the policy underlying the PBS is far from clear. In AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833, I said that:

“41.

In AS the Court was not concerned with decisions made by the Respondent under the “Points-based” system of determining applications for leave to remain. In such cases there is a “fixed historic time-line”. The effective operation of a points based system requires the points to have been accumulated at the date of the Secretary of State’s decision.”

I accept Mr. Swift’s submission that in this case it is unnecessary to explore the role of section 120 in appeals under the PBS because Mr. Alam’s statement of additional grounds in response to the Secretary of State’s section 120 notice in his Appeal Form (IAFT – 1) to the Tribunal did not, in fact, put forward any additional grounds. It merely cross – referred to the attached Grounds of Appeal against the refusal of the PBS application which said (inter alia) that the required bank statement had not been produced because “the Appellant did not know about the Rules ….He intended to provide the said bank statement before the hearing.” If and insofar as the “additional” grounds raised in response to a section 120 notice are, in reality, merely a repetition of the grounds of appeal under section 84(1)(a) against the refusal of the PBS application they fall within section 85A.

As the Upper Tribunal pointed out when rejecting this submission (Issue E) in paragraph 49 of its determination in Shahzad, this ground of appeal is concerned with the fairness of the PBS, including section 85A, and not with the fairness of the provisions which brought section 85A into effect on 23^rd May 2011. The PBS is a very detailed scheme, and, in order to secure predictability and consistency in a decision making process which has to consider a very large number of applications, it is highly prescriptive.

The Upper Tribunal’s determination in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC) demonstrates that even in the context of such a statutory scheme the public law requirement of fairness (see paragraphs 13-15 of the Upper Tribunal’s determination) must still be observed, and fairness may impose additional obligations on the Secretary of State as decision maker under the PBS. However, the obligation to give those applicants whose colleges had lost sponsorship status an opportunity to vary their application by giving them time to find a substitute college was imposed on the Secretary of State as a matter of fairness in circumstances where there had been a change of position of which the Secretary of State was aware, but the applicants were themselves not at fault in any way: they were “both innocent of any practice that led to the loss of the sponsorship status and ignorant of the fact of such loss of status”, see paragraph 22 of the Upper Tribunal’s determination in Patel.

In these three appeals there was no change of position after the applications were submitted, the appellants were simply at fault in not supplying the specified documents with their applications. I endorse the view expressed by the Upper Tribunal in Shahzad (paragraph 49) that there is no unfairness in the requirement in the PBS that an applicant must submit with his application all of the evidence necessary to demonstrate compliance with the rule under which he seeks leave. The Immigration Rules, the Policy Guidance and the prescribed application form all make it clear that the prescribed documents must be submitted with the application, and if they are not the application will be rejected. The price of securing consistency and predictability is a lack of flexibility that may well result in “hard” decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents. Imposing such an obligation would not only have significant resource implications, it would also extend the time taken by the decision making process, contrary to the policy underlying the introduction of the PBS.

Mr. Malik referred to the statement in Issue 7 of UK Border Agency News dated May 2011 that:

“UK Border Agency caseowners employ a measure of flexibility when considering PBS applications, for example requesting further documentation or clarification where appropriate. In addition a validation stage is being trialled whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected. These policies aim to provide excellent customer service and reduce the number of applications falling for rejection.”

In its response to the 34^th – 37^th Reports of the Public Accounts Committee, which had recommended that UKBA should “ensure that its staff take a consistent and proactive approach to correcting minor errors and omissions” in applications, the Government said:

“6.2

The Agency has already made changes to its evidential flexibility policy. Revised instructions have been circulated to ensure a consistent approach in decision making is adopted across all the case working units both in the UK and overseas. The revised arrangements mean that where minor omissions have been made and applicants have been asked to provide the information needed to determine their application, they will be given seven days to provide the information requested where this is necessary. This same evidential flexibility approach has also been introduced to sponsor licence applications.

6.3

In addition to the evidential flexibility arrangements, the Agency has introduced further measures to allow applicants applying in the UK to correct minor errors or omissions earlier in the application process. This approach was trialled on the Tier 1 (General) route in order to avoid rejection of applications prior to the closure of the route. The Agency plans to extend this approach across all temporary migration routes in 2011.

6.4

All applicants wishing to stay in the UK under the System are required to submit all relevant evidence in support of their application at the time the application is made. The Agency is committed to helping migrants and sponsors to get their application s right first time wherever possible. Over the next 12 months, the Agency will be reviewing and improving all guidance on offer to users of the System and will extend further the use of on-line forms to make the application process easier. As part of the on-line process, a check list will be produced to clarify the documentation the applicant must provide as part of their application. Additional call centre support for on-line applicants will also be offered.”

A similar submission was rejected by the Upper Tribunal in Shahzad: see Issue F, and paragraphs 50 and 51 of its determination. I agree with the Upper Tribunal that the argument is misconceived. Mr. Malik accepted that he could not rely on the proposition that there had been a “near miss” under the Rules in Mr. Alam’s case: see paragraph 26 of Stanley Burnton LJ’s judgment in Miah v Secretary of State for the Home department [2012] EWCA Civ 261. His submission that Mr. Alam’s was a “no miss” case ignores the fact that, under the PBS, one of the requirements of the rules is that the specified documents must be submitted with the application. Prior to the 23^rd May 2011 a “miss” at the application stage because of a failure to submit the specified documents with the application could be converted into a “no miss” at the appeal stage, but as from 23^rd May 2011 this is no longer possible because the Tribunal is not entitled to consider the documents that were not submitted with the application.

This ground is misconceived. Document F3 was not required in order to prove that the CAS was valid. There was no suggestion that Mr. Anwar’s CAS was invalid. However, Appendix A to the Immigration Rules and the PBS Policy Guidance required Mr. Anwar to submit with his application, not merely a valid CAS (about which there was no issue), but also the qualification documents, which in his case included document F3, used by the college in assigning the CAS to him. Mr. Anwar was not entitled to adduce the missing document F3 under paragraph (c) of subsection 85A(4) on the basis that it was being adduced to prove that the CAS was valid.

There is some force in this submission. Although the Secretary of State was not under any general duty to notify applicants that specified documents were missing, and to give them an opportunity to remedy the omission (see Ground 4, paragraphs 44-47 above), Mr. Anwar was told in the letter dated 5^th April 2011 from UKBA that if there was any problem with the validity of his application he would be informed, and advised as to the action he needed to take to make a valid application (paragraph 4 above).

Mr. Swift explained that the check as to the validity of applications was a very preliminary check to see whether there were obvious omissions: eg no fee paid, no photograph supplied, no signature on the Student Declaration at the end of the form. At this preliminary stage the documents supplied with the application would not be checked, and would be taken at face value. It was not every omission that went to the validity of an application. A failure to include specified documents with an application form would result in the rejection of the application on the merits because the necessary points would not be awarded to the applicant, but it would not mean that the application was invalid.

I appreciate that Mr. Anwar, if he had thought about the matter, might not have appreciated the distinction between an invalid application, which would not be considered unless the obvious defect was cured, and an application that was a valid application, but nevertheless fell to be rejected because, on examination, the applicant had failed to score that required number of points, eg. because he had failed to supply a specified document. However, the distinction is a real one. In a number of places the prescribed application form makes it clear that all questions in the relevant part of the form must be completed, and if they are not the application will be “invalid”. If the relevant part of the form is completed the application is a valid application, even if, on examination, it is found that the completed answers are incorrect because, eg. all of the relevant qualification certificates are not provided.

In these circumstances the letter dated 5^th April 2011 from UKBA could not reasonably have led Mr. Anwar to believe that his application form would be checked in detail so that he would be notified of any failure to provide specified documents and given an opportunity to rectify the omission before a decision was made. In fact, Mr. Anwar did not rely on the letter at the time. His case before both the Tribunal and the Upper Tribunal was that he had submitted document F3 with his application form. The Tribunal accepted his evidence on this point, the Upper Tribunal did not. I would reject this ground of appeal.

I accept that Miss Eghan was particularly unfortunate. If the hearing of her appeal had taken place on the 4^th May 2011 in accordance with the original Notice of Hearing, the Tribunal would have been able to consider the bank statements that had not accompanied her application and her appeal would have been allowed. Because the hearing date was postponed to 25^th May she was not able to rely on the bank statements and her appeal was dismissed by the Upper Tribunal. In these circumstances the Upper Tribunal’s expression of regret when dismissing her appeal is readily understandable.

However, the original Notice of Hearing was not the commencement of a hearing for the purpose of article 3: it was a notice that a hearing would take place at a future date. The Notice told Miss Eghan to submit a bundle of all of the documents on which she proposed to rely at the hearing, but it did not suggest, either expressly or by implication, that all of those documents would be accepted by the Tribunal as admissible in evidence at the forthcoming hearing. The admissibility of the documents in Miss Eghan’s bundle would be determined, not by the Notice of Hearing, but by the provisions of the 2002 Act in force at the date of the hearing.

The Order effectively deprived these appellants of a “second bite at the cherry”, but it was not unlawful. I would hold that Shahzad was wrongly decided, and would dismiss all three appeals.