Olatunde v Secretary of State for the Home Department

These two matters have been heard together because they raise a common question concerning the interpretation of section 85A of the Nationality, Immigration and Asylum Act 2002.

The first is an appeal by Mr. Hanson Olatunde against the dismissal by the Upper Tribunal of his appeal against the decision of the First-tier Tribunal which had itself dismissed his appeal against the decision of the Secretary of State refusing his application for leave to remain as a Tier 1 (General) Migrant under the Points Based System. The second is an application by Mrs. Samjhana Khoteja for permission to appeal against the decision of the Upper Tribunal dismissing her appeal against the decision of the First-tier Tribunal which had dismissed her appeal against the refusal by the Secretary of State to grant her, her business partner and their respective husbands permission to remain as Tier 1 (Entrepreneur) Migrants under the Points Based System.

Section 85A of the Nationality, Immigration and Asylum Act 2002 (“the Act”) forms part of a group of provisions dealing with appeals against immigration decisions. The right to appeal against an immigration decision is to be found in section 82(1); an immigration decision is defined in section 82(2) as including, in paragraph (d), a refusal of leave to remain if the result of that refusal is that the person concerned has no leave to remain. A decision that a person is to be removed by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”) is also an immigration decision for these purposes: section 82(2)(ha).

By section 85(1) an appeal against an immigration decision is to be treated by the tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal. It is a form of consolidation provision designed to ensure that all immigration decisions against which a person has a right to appeal are considered and determined at the same time.

Section 85(4) provides that on an appeal the tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision, but that is subject to the exceptions set out in section 85A. Of these, only Exception 2 is relevant for present purposes. It is contained in subsections (3) and (4), which provide as follows:

“(3)

Exception 2 applies to an appeal under section 82(1) if–

(a)

the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),

(b)

the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System”, and

(c)

the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).

(4)

Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it–

(a)

was submitted in support of, and at the time of making, the application to which the immigration decision related,

(b)

relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),

(c)

is adduced to prove that a document is genuine or valid, or

(d)

is adduced in connection with the Secretary of State’s reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points Based System”.”

On 8^th June 2013 Mr. Olatunde applied for leave to remain as a Tier 1 (General) Migrant under paragraph 245CA of the Immigration Rules, under which he was required to demonstrate a certain minimum level of income during a prescribed period in order to be awarded the necessary minimum number of points. The rules required him to submit evidence of his income in a particular form and, since he failed to submit the necessary documents with his application, he was not awarded the number of points he needed. When refusing Mr. Olatunde’s application the Secretary of State gave notice under section 47 of the 2006 Act of her intention to remove him when his leave to remain expired.

Mr. Olatunde appealed against the refusal of his application to the First-tier Tribunal and by the time his appeal came on for hearing he had obtained the evidence of his earnings which had previously been lacking. Not surprisingly, he wished to rely on that evidence before the tribunal in support of his appeal. He did not formally appeal against the Secretary of State’s notice of her intention to remove him, presumably because he assumed – no doubt correctly – that, if he succeeded on his appeal and obtained leave to remain, it would cease to be of any relevance.

The First-tier Tribunal dismissed Mr. Olatunde’s appeal on the grounds that the evidence he had supplied of his earnings did not meet the requirements of the Immigration Rules. He therefore applied for, and obtained, permission to appeal to the Upper Tribunal. He did not formally appeal against the notice of intention to remove him.

Before the Upper Tribunal Mr. Olatunde sought to rely in support of his appeal on the documents which he had obtained since the refusal of his application by the Secretary of State, to which, he submitted, the judge below had failed to give sufficient weight. However, Judge Wilson held that by virtue of section 85A (3) and (4) they were not admissible in evidence and therefore dismissed his appeal.

On 29^th June 2013 Mrs. Khoteja applied under paragraph 245DD of the Immigration Rules for leave to remain as a Tier 1 (Entrepreneur) Migrant. (Her application and those of her business partner and their respective husbands stand or fall together and I shall treat them as one.) By sub-paragraph (b) and Appendix A to the Immigration Rules she had to score 75 points for attributes, which she could do by showing that she had a minimum level of funds at her disposal (25 points) held in regulated financial institutions (25 points) and disposable in the UK (25 points). She also had to score 10 points under Appendix B and 10 points under Appendix C. She also had to satisfy the Secretary of State pursuant to sub-paragraph (h) that she genuinely intended, and was able, to establish, take over or become a director of one or more businesses within the UK within the following six months. In making her assessment of an applicant’s ability to comply with that requirement, the Secretary of State was entitled under sub-paragraph (i) to take into account a number of factors, including the viability and credibility of his business plans and market research into his chosen business sector. Sub-paragraph (k) provides that if the Secretary of State is not satisfied with the genuineness of an application in relation to a points-scoring requirement in Appendix A, those points will not be awarded.

The Secretary of State refused Mrs. Khoteja’s application. She was not satisfied that she genuinely intended to set up a business of the kind she described, because she did not regard her business plan as realistic, did not think that the advertising Mrs. Khoteja had put in place reflected a genuine attempt to obtain business of the kind she proposed to carry on and did not think that the contract on which she relied as evidence of trading activity was a genuine agreement for work. The Secretary of State was therefore not satisfied that Mrs. Khoteja genuinely intended, or was able, to establish, take over or become a director of a business within the ensuing six months. She therefore concluded that the application as a whole was not genuine and, relying on sub-paragraph (k) of paragraph 245DD, awarded Mrs. Khoteja no points in relation to the availability of funds. A notice of intention to remove them was served on each of the applicants under section 47 of the 2006 Act.

Mrs. Khoteja lodged an appeal to the First-tier Tribunal. In support of her appeal she relied on a contract with a company called Rainna Clothing Ltd, but the judge did not consider it to be genuine and so attached no weight to it. She also relied on invoices issued to Rainna Clothing Ltd, but, since they post-dated the application for leave to remain, the tribunal ruled that by virtue of section 85A of the Act they could not be taken into account. The judge also held that funds available to Mrs. Khoteja and her partner could not be regarded as available to the business and dismissed her appeal on the basis that the Secretary of State was entitled to find that she did not genuinely intend to establish a business in this country.

Mrs. Khoteja then sought and obtained permission to appeal to the Upper Tribunal on the grounds that the First-tier Tribunal had been wrong to hold that funds available to her and her business partner were not available to the business, that the tribunal had wrongly found that the contract with Rainna Clothing Ltd was false and that the First-tier Tribunal had confused a genuine intention to establish a business with its potential viability. It was sufficient, in her submission, for her to show that she genuinely intended to establish a business in the UK, not that it would necessarily have succeed.

In the Upper Tribunal Deputy Upper Tribunal Judge Pickup accepted that Mrs. Khoteja was right on the first ground, but held that the error was immaterial. He rejected the argument that the judge in the First-tier Tribunal had found that the contract with Rainna Clothing Ltd was false in the sense of being a forgery and had failed to take it into account when reaching her decision. However, as he pointed out, the contract had come into existence at some time after Mrs. Khoteja had made her application and as such it had to be excluded from consideration by virtue of section 85A of the Act. Although he recognised an argument to the effect that a distinction was to be drawn for that purpose between evidence relating to a Points Based decision and evidence relating to other kinds of decisions, he held on the authority of Ahmed (PBS: admissible evidence) [2014] UKUT 00365 (IAC) that in cases where provisions relating to point-scoring are inextricably linked to decisions which are not, section 85A applies to both. He therefore held that the contract should have been excluded from consideration and that there was no error of law in relation to this ground of the First-tier Tribunal’s decision.

Mr. Malik recognised that in each of these cases two separate decisions had been made in respect of the appellant: a decision to refuse leave to remain and a decision under section 47 of the 2006 Act to give notice of an intention to remove. Neither appellant appears formally to have pursued an appeal against the removal notice, but he submitted that by virtue of section 85(1) an appeal against one decision carried with it an appeal against the other. There was therefore only one appeal in each case, despite the fact that it encompassed two separate decisions: the refusal of leave falling within section 82(2)(d) and the decision under section 47 of the 2006 Act under section 82(2)(ha). Accordingly, he submitted that neither of these cases fell within section 85A(3), which applies only to simple appeals against refusals of applications for leave to remain which have to be made under a Points Based system.

I cannot accept that submission, which proceeds on the premise that an appeal is indivisible in nature, regardless of the number of decisions to which it relates. The policy behind section 85(1) is to ensure that all decisions against which a person has a right of appeal are considered and disposed of at the same time. A person who is subject to more than one decision may wish to appeal against one but not another, but the effect of section 85(1) is to bring all such decisions before the tribunal under the umbrella of one appeal, regardless of his wishes. If he does not actively pursue an appeal against one of the decisions, the tribunal will no doubt formally dismiss it and thereby dispose of it. It does not follow, however, that the proceedings are to be regarded as indivisible rather than as encompassing separate challenges to separate decisions. Sections 85(1) and (4) both use the expression “appeal against [any] decision”, meaning a challenge to an individual decision and in my view section 85A(3) uses the word “appeal” in the same sense.

Moreover, the clear policy underlying sections 85 and 85A is that the tribunal should be able to consider a broad range of evidence in relation to appeals generally, but a more limited range of evidence in relation to appeals against decisions which have to be considered under a Points Based system. This strongly supports the conclusion that section 85A(3)(a) is to be read as referring to that element of appeal proceedings which involves a challenge to a decision of a kind specified in section 82(2)(a) or (d), whether or not the appeal also involves a challenge to a decision which falls under another paragraph of section 82(2), in this case paragraph (ha). As my Lord, Elias L.J. observed in the course of argument, Mr. Malik’s submission was tantamount to saying that section 85A(3) is to be read as if it said “the appeal is solely against an immigration decision of a kind specified in section 82(2)(a) or (d)”, but that would not be consistent with the policy behind these sections or with the language of the subsection and can hardly have been what Parliament intended. It would mean that one set of evidential rules would apply where the Secretary of State had made a decision refusing leave to remain coupled with a removal decision, and a different set of rules where the removal decision had been deferred until after the appeal against the refusal of leave to remain had been heard. There is no rational basis for that distinction.

This analysis is supported by the decision of the Upper Tribunal in Mushtaq v Secretary of State for the Home Department [2013] UKUT 00061 (IAC). It held that section 85A(3) can apply when an appeal is brought against an immigration decision falling within section 82(2)(a) or (d) regardless of whether an appeal is also brought against an immigration decision of another kind. In that case the appellant had applied for leave to remain as a Tier 4 (General) Student migrant. The Secretary of State refused his application on the grounds that his Certificate of Acceptance for Study (“CAS”) did not confirm that the proposed course represented academic progress. At the same time she notified him of her decision to remove him under section 47 of the 2006 Act. With his notice of appeal to the First-tier Tribunal the applicant submitted a letter from his college, which post-dated the Secretary of State’s decision, saying that it considered that the course he proposed to undertake did represent academic progress. However, the tribunal ruled that it could not be taken into account by reason of section 85A.

Before the Upper Tribunal Mr. Malik, who also appeared for the appellant on that occasion, advanced the very submission that he put forward in support of the present appeal. It was roundly rejected by the tribunal on the grounds that the fact that under section 85(1) an appeal carries with it an appeal against another immigration decision falling under another of the paragraphs of section 82(2) does not mean that the appeal is not one against an immigration decision falling within section 82(2)(a) or (d). The tribunal could not see that Mr. Malik’s case served any discernible purpose. Although Mr. Malik submitted that the case had been wrongly decided, I think the tribunal’s decision was correct.

In my view, therefore, the decision of the Upper Tribunal in each of the present cases was correct so far as concerns the meaning and effect of section 85A. The First-tier Tribunal was not entitled to take into account any evidence which the appellants had not submitted at the time they made their applications. It is common ground that in those circumstances Mr. Olatunde’s appeal must be dismissed.

I come next to submissions which were put forward in support of Mrs. Khoteja’s appeal. The conclusion to which I have come about the meaning and effect of section 85A of the Act means that neither the First-tier Tribunal nor the Upper Tribunal was entitled to take into account the contract with Rainna Clothing Ltd or the invoices issued to that company on which she relied, because none of them had been submitted at the time when the application was made. Indeed, they had not then come into existence. However, Mrs. Khoteja’s appeal raises other questions of somewhat greater difficulty.

Mr. Malik submitted that the First-tier Tribunal had misconstrued paragraph 245DD(h) by confusing the need to show a genuine intention to start up a business with a need to show that the business is viable. It is perfectly possible, he submitted, for a person to have a genuine intention to establish a business despite the fact that, viewed objectively, that business is not viable and likely to fail. He also submitted that even if the tribunals were unable to take into account the contract with Rainna Clothing and accompanying invoices in relation to the points-based elements of the decision, they were entitled to take them into account in relation to other elements of the decision, including the question whether Mrs. Khoteja had a genuine intention to establish a business in this country.

Judge Pacey in the First-tier Tribunal heard evidence from Mrs. Khoteja and her partner about their plans for the business and the steps they had taken towards establishing it. She was profoundly unimpressed by what they told her and was not persuaded that they had a genuine intention to establish a business of the kind they described. However, the short answer to this part of the case is that the First-tier Tribunal did consider the contract with Rainna Clothing Ltd, although it should not have done so, and that Mrs. Khoteja did not appeal against the refusal of the First-tier Tribunal to take into account the invoices. In her case, therefore, the debate about the effect of section 85A is sterile. However, Mr. Sharland submitted that the points-based elements are so closely connected with the other elements of the decision that section 85A applied to the decision as a whole. It was not open to the tribunals, therefore, to take the contract with Rainna Clothing Ltd or the invoices into account when deciding whether Mrs. Khoteja and her partner had a genuine intention to establish a business. In support of that submission he drew our attention to the decision in Ahmed (sup.).

Although paragraph 245DD(h) requires an applicant to satisfy the Secretary of State only that he genuinely intends and is able to establish the relevant business, the factors which the Secretary of State is entitled to take into account when deciding whether that requirement is met are set out in sub-paragraph (i). They include the viability of the applicant’s business plans, presumably because it is thought that if the plans are not viable, it is less likely that the applicant really intends to put them into effect. In the light of this provision, it is clear that viability is one of a number of factors that may be relevant to the Secretary of State’s decision.

Sub-paragraph (k) gave rise to a certain amount of discussion in the course of argument. As I have already noted, it provides that if the Secretary of State is not satisfied with the genuineness of the application in relation to a points-scoring requirement in Appendix A, those points will not be awarded. Section 85A(4)(a) allows a tribunal to take into account new evidence that is adduced in support of an appeal against a decision taken on grounds not related to the scoring of points under the Points Based System. Mr. Malik submitted that a distinction is to be drawn for these purposes between the points-scoring requirements in sub-paragraphs (b), (c) and (d) of paragraph 245DD and the separate requirements of sub-paragraph (h) (which does not require the scoring of points) and that therefore evidence which would not be admissible on an appeal against the former is admissible on an appeal against the latter. However, there is a close connection between sub-paragraphs (b), (c) and (d) and sub-paragraph (h), as is demonstrated by the Secretary of State’s decision in this case. She was not satisfied that Mrs. Khoteja genuinely intended to establish a business and therefore she was not satisfied about the genuineness of her application in relation to the points-scoring requirements in Appendix A. Whether she was entitled to draw that conclusion in relation to all three requirements is not the point.

Since sub-paragraph (h) is concerned with the applicant’s intentions with regard to the establishment of a business and the investment of funds that are genuinely available to him, it is difficult to see in what circumstances an applicant who fails to satisfy the Secretary of State of those matters could hope to satisfy her that his application as a whole was genuine and thus avoid falling foul of sub-paragraph (k). However, if that were in issue, I am inclined to think that section 85A(3) would prevent the tribunal from taking into account new evidence that related to the genuineness of the application insofar as it was adduced to show that the requirements of sub-paragraphs (b), (c) and (d) were satisfied; and the failure to obtain the required number of points would inevitably lead to the refusal of the application. However, for the reasons I have given, none of that matters for present purposes and it is therefore unnecessary to decide whether, if an applicant can in practice fail to meet the requirements of sub-paragraph (h) without falling within sub-paragraph (k), section 85A restricts the evidence that the tribunal can consider on an appeal against a decision based on sub-paragraph (h) alone.

For the reasons I have given I would dismiss both appeals.

I agree.

I also agree.