TA (Nigeria) & Ors v Secretary of State for the Home Department

MR JUTSICE HENDERSON: This is, in form, an application by the three appellants for permission to appeal from the decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 5 November 2014 refusing them permission to appeal to the Court of Appeal.

In that form, the application is doomed to failure because under section 13 of the Tribunals, Courts and Enforcement Act 2007 no appeal lies to the Court of Appeal from a decision of the Upper Tribunal refusing permission to appeal to the Court of Appeal. Such a decision would only be open to challenge by way of judicial review on the limited grounds explained by the Supreme Court in the case of R(Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663. However, where the Upper Tribunal has refused permission to appeal, the disappointed appellant does have the right to seek permission from the Court of Appeal (see section 13(4) and(5) of the 2007 Act). It would be unfortunate if the present application were dismissed on a technicality. So, as I said to counsel at the start of this morning's hearing, I am prepared to treat the application as if it were an application for permission to appeal from the substantive decision of the Upper Tribunal.

Since the application would be for a second-tier appeal, it is of course necessary for the appellants to satisfy the more stringent test for second appeals pursuant to section 13(6) of the Act and the Regulations made under that subsection; the more stringent test being that there is some important point of principle or practice or some other compelling reason why the Court of Appeal should hear the appeal.

The application has, in fact, already been refused on paper by McCombe LJ on 20 March 2015, when he said:

The appellants are entitled to renew that application orally and that is how the matter comes before me today. I have had the benefit of very helpful, concise and focused submissions from Miss Shiyani Jagarajah, instructed on behalf of the appellants.

The background to the matter is helpfully set out in the decision of the Upper Tribunal and I should briefly refer to it. The primary applicant is Mrs Alabi. The other two applicants are her husband and their young son, now aged about five and a half. I understand that there is also a younger child, although I do not know when he or she was born.

The appellant (by which I mean Mrs Alabi) was originally granted leave to enter the UK as a Tier 4 (General) student in March 2009 and that leave was extended until August 2011. She was subsequently granted leave as a Tier 1 (post-study) migrant until 27 September 2013, and when she was joined in this country by her husband and their child, they too were granted leave as Tier 1 dependants until that date.

The appellant then made an application to vary her leave as a Tier 1 (Entrepreneur) on 27 September 2013; that is to say, the day on which her previous leave expired. This application was refused by the Secretary of State in a decision dated 14 November 2013. The case advanced by the appellant was that she had set up a business called Divine Gift Ventures, and her application was based on third party support from a Mrs Oshinowo in the United Kingdom and a Mr Beyioku in Nigeria.

That application was refused by the Secretary of State for six reasons which are conveniently summarised in paragraph 4 of the Upper Tribunal's decision. First, the evidence produced from GT Bank in Nigeria did not establish that the funds held in Mr Beyioku's account were transferable to the UK or that the funds were available to the appellant.

Secondly, the third party declaration submitted by Mrs Oshinowo did not confirm that the funds would remain available to the appellant until such time as they were transferred to her business.

Thirdly, the appellant failed to provide a letter from a legal representative confirming the details in the declaration made by Mrs Oshinowo.

Fourthly, there was no indication from the bank that the appellant had accesses to the funds belonging to Mrs Oshinowo as and when required.

Fifthly, the occupation in which the appellant was engaged was below the required level (that is to say National Qualifications Framework level 4) because her occupation as a courier or delivery service operator was a lower skilled occupation.

Finally, the appellant failed to produce documents in accordance with one of the requirements in the Rules because she had not provided a written contract relating to her business.

The appellant appealed against that decision and her appeal was allowed by the First-tier Tribunal in a decision promulgated on 16 June 2014. The First-tier Tribunal judge noted that the bank statement from the Nigerian bank failed to satisfy the necessary requirements and was not in the prescribed form. The First-tier Tribunal judge also recorded a concession by the appellant that she had failed to provide a letter from a legal practitioner in relation to the funds from Mrs Oshinowo. The judge nevertheless went on to allow the appeal having heard oral evidence from the appellant, her husband and Mrs Oshinowo and having also considered further evidence produced by the appellant.

The Secretary of State was, however, granted leave to appeal from that decision and the matter therefore came before the Upper Tribunal, as I have already recorded.

The grounds of appeal were, first, that the additional evidence which the judge had taken into account was not admissible pursuant to section 85A of the Nationality, Immigration and Asylum Act 2002, and, second, that in any event the decision ran contrary to the appellant's concession that she had failed to provide a letter from a legal practitioner.

The Upper Tribunal judge recorded that she then heard oral submissions from both parties and was referred by counsel for the Home Secretary to certain relevant authorities.

The Upper Tribunal judge then set out the relevant parts of the Immigration Rules, which are in a highly detailed and prescriptive form, including particulars of the material which has to be supplied by an applicant who wishes to rely on the availability of money from a third party. One of those requirements is for a letter from a legal representative, which has to set out a number of prescribed particulars. It is common ground that such a letter has never been provided.

In the light of those provisions, the Upper Tribunal judge had no difficulty in concluding that the First-tier Tribunal had gone wrong in law, firstly because it took into account evidence that was inadmissible pursuant to section 85A of the 2002 Act, which requires the FTT to confine itself to evidence in existence at the date of the application for leave made to the Secretary of State, but quite apart from that it was evident that the appellants were unable to satisfy the requirements of the Rules, not least because no letter from a legal representative had been produced in relation to Mrs Oshinowo.

The Upper Tribunal therefore set aside the decision of the FTT and proceeded to remake the decision itself. The judge then set out the evidence of the parties (that is to say, the admissible evidence of the parties) as contained in their witness statements, and, as recorded by the FTT, the judge referred to the documents which had been submitted. She also identified the inadmissible further evidence which had been taken into account below.

The judge then concluded that there were five separate reasons why the application had to fail. In the first place, there was the absence of a letter from a legal representative of Mrs Oshinowo. Secondly, in the judge's view the evidence failed to establish that the funds of Mr Beyioku would be available to the appellant or her business. Thirdly, she was not satisfied that there was confirmation that the money in either of the sponsoring accounts would remain available until it was transferred to the applicant. Fourthly, neither of the declarations submitted contained the necessary confirmation required by the Rules. Finally, the Upper Tribunal judge, while appreciating that the Home Secretary appeared to accept that Divine Gift Ventures was a genuine company, said that in her view the evidence did not establish that the appellant's job was as described in her statement of evidence and therefore she could not be described as a procurement officer. If she had been a procurement officer, that would have satisfied the relevant threshold but, if not, the position would have been as the Secretary of State had determined.

Against that background, the grounds of appeal originally relied upon are set out as an annex to the appellant's notice and are expanded in the original skeleton argument in support of the appeal.

However, counsel appearing this morning has realistically accepted that none of those grounds offers any reasonable prospect of success, with the exception of one point upon which she now pins her clients' case. That point relates to the overriding requirement, which it is agreed on all sides applies to the Home Secretary, to operate the Rules in a fair manner. It is submitted that this overriding obligation of fairness at common law is one in the light of which the Rules have to be interpreted and applied, and it is argued that in particular that the deficiencies in the letters produced from the banks were not fatal in themselves because the Secretary of State, acting fairly, should have given the applicants an opportunity to remedy the position before deciding the matter adversely to them.

In that respect, reliance is placed upon paragraph 245AA of the Immigration Rules, which came into force on 28 October 2013. Under that paragraph, it was laid down that the Secretary of State would only consider documents submitted with the application unless subsequent documents were submitted in accordance with subparagraph (b), and subparagraph (b) applies, inter alia, to documents which were submitted in the wrong format. In that situation, the Secretary of State has a discretion to contact the applicant and require the correct documents, which must then be supplied within 7 working days. However, subparagraph (c) goes on to say that documents will not be requested either where a specified document has not been submitted or where 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".

It is apparent from the original decision letter of 14 November 2013 that the provisions of paragraph 245AA were given some consideration by the Secretary of State, because the decision includes a paragraph towards the end saying that the decision had been made not to require additional documentation or, exceptionally, to consider the application under the provisions of that paragraph, because the missing contracts were a specified document which should have been provided. In addition, it was not anticipated that addressing the omission would lead to a grant of leave.

Counsel takes issue with that passage on the footing that she submits this was too perfunctory a manner for the Secretary of State to address her powers under that paragraph. She submits that if the matter had been properly considered the powers under that paragraph should have been exercised so as to give the applicants a further opportunity to put their application in order.

It seems to me, however, that the matter clearly was considered by the Secretary of State, and I am not satisfied that any convincing case can be put forward that the discretion which the Secretary of State undoubtedly had was exercised in an unlawful manner. The threshold for establishing the unlawful exercise of a discretion is, of course, a high one, and it seems to me plain on the facts on this case that the Secretary of State was fully justified in taking the view that the application was in any event bound to fail, not least because of the entire absence of any letter from a legal representative in relation to Mrs Oshinowo. That was a clear breach of the requirements of the Rules and, as I have said, no effort has ever, as I understand it, been made to remedy it, at any rate in the form of admissible evidence which would not fall foul of section 85A.

Quite apart from that, it seems to me the Secretary of State was plainly entitled to take the view, as was the Upper Tribunal when retaking the decision later, that there was insufficient evidence to establish that the applicant was indeed a procurement officer rather than holding a post of lesser responsibility which failed to reach the specified threshold. That was a matter of evaluation of the very scanty material provided in support of the application, and one an appellate court would have no basis for interfering with.

But to return to the overriding submission that there is a duty of fairness which required the Secretary of State to exercise her powers in this case under paragraph 245AA, it seems clear to me that the Secretary of State did consider her powers under that paragraph and that the circumstances fall well short of establishing any error of law with which this court could interfere.

I also add that, in any event, I find it hard to see how, even if there were allegedly some failure on her part, in the particular circumstances of this case it could be said to give rise to a point which would satisfy the second appeal threshold, namely an important point of practice or principle.

It follows, therefore, that the second-tier test is, in my judgment, not satisfied in this case and I will therefore refuse the application.