Bilous v Secretary of State for the Home Department

This is an appeal brought by Ms Bilous from the determination of the Upper Tribunal promulgated on the 24 September 2014. It refused permission for a claim for judicial review, relating to a decision of the Secretary of State for the Home Department who had refused Ms Bilous a right to remain as a tier two general migrant.

Permission to appeal was refused on paper by Underhill LJ. The factual background basically is this. The applicant is a Ukrainian national. She was born in January 1991 and came to the UK when she was 14 in 2005 as a minor. She was the daughter of a Ukrainian diplomat who permanently settled here in 2007. She completed her A levels in the UK and obtained a bachelor's degree from the LSE. She then wanted to take up a post with ICT Enterprises Limited, a franchise retail food business, who were keen to hire her as a full-time analyst. The sponsor accidentally misstated the salary for the job description on the certificate of sponsorship. They listed the salary as £22,000 whereas, under the relevant rules it was necessary for it to be £22,300. She was rejected on these grounds. The sponsor then applied for a new certificate reflecting the correct salary level. The certificate was granted but it was by then too late to submit it to the Home Office. The reason was that she was by then an over-stayer.

There are really two grounds of appeal here. The first is that it is said the Tribunal erred in holding that the Secretary of State had no obligation to make inquiries as to the appellant's salary with her employer before refusing the application. The second is that there was an obligation on the Secretary of State to consider Article 8 when refusing the application. There had been no specific claim by the applicant that Article 8 was engaged, nonetheless, it is said that the Secretary of State should have taken the point of her own motion.

As to the first issue, Mr Malik has taken me to the statement from the sponsor who says that he contacted the officials when he realised that he had in error put the salary as £22,000 whereas he had it intended it to be sufficient to ensure that the relevant rules were complied with. In my judgment, the problem with this submission is that it is plain from the way in which Upper Tribunal Judge Ward refused the application that the communication about the salary had not been made until after the decision had been taken. Upper Tribunal Judge Ward refers to the fact that there had been contact between the employer and one of the case workers prior to the decision being taken and a minor point had been addressed but no issue had been raised in relation to the salary. There was no obligation on the Secretary of State to raise that issue. The Secretary of State could fairly assume that the form had been properly filled in.

It seems to me from the way in which the judgment of the Upper Tribunal judge is framed, that the issue of the salary had not been raised at any stage until after the decision by the Secretary of State had been reached. There was nothing to alert the Secretary of State to the fact that this was false information, that it had been put in by mistake or anything of that nature. It was not a case, for example, where there is missing information which might in certain circumstances attract the operation of the evidential flexibility policy. Accordingly, I can see no possible error of law in the way in which this matter was handled as the judge held in refusing judicial review. The simple fact is that the evidence provided was wrong.

As to the second ground, the argument advanced is this. It is said that there is a general obligation on the Secretary of State to ensure that at all times there is compliance with Convention principles. (See paragraph 2 of the Immigration Rules). The submission is that in the particular circumstances of this case, there was enough information before the Secretary of State to demonstrate that Article 8 had been engaged. It was clear that the applicant had been in the country by the time of her application for somewhere in excess of nine years, she had lived here from the age of 14 and must have developed a certain private life.

In my view, the difficulty with this submission is that the bare material that was before the Secretary of State would not have been enough to justify the Secretary of State in raising of her own motion an Article 8 claim and then finding it sustained. What the Secretary of State did was to say that there should be a fresh Article 8 application. Mr Malik points out that that was of no use in this case because by then, the applicant was an over-stayer and was not in a position to make that application and have it considered. Even if that is so, it cannot change the nature or strength of the Article 8 case. I do not believe there was sufficient material before the Secretary of State to make it an obvious case she had to consider. It was not raised at any point by the applicant and, in my judgment, it is plain that paragraph 2 is envisaging that where material is properly before the Secretary of State which could sustain an Article 8 claim, then I accept there will be circumstances when the point must be taken by the Secretary of State of her own motion, even though not specifically raised.

Mr Malik emphasises here the fact that this is a hard case. in particular, given the mistake made by her employer when he mistakenly put the wrong salary on the relevant application. I have sympathy with that, but it seems to me that cannot alter the strength of the Article 8 case; it has to stand or fall quite independently of an application to be allowed to stay under the rules which permit her to be employed by her sponsor.

Accordingly, for these reasons, I do not think either of these grounds has sufficiently strong prospects of success to justify this case going further.