United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IAC-AH-KRL-V3

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/09874/2019 (v)

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 16 March 2021	On 01 April 2021

 

Before

 

UPPER TRIBUNAL JUDGE McWILLIAM

 

 

Between

 

Intizar Ahmad

(ANONYMITY DIRECTION not made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr D Lemer, Counsel, instructed by Sky Solicitors

For the Respondent: Mr E Tufan, Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              The Appellant is a citizen of Pakistan. His date of birth is 1 March 1981. On 20 November 2013 he made an application for leave to remain as a Tier 1 (Entrepreneur). This application was refused by the Secretary of State on 21 December 2018. The Appellant appealed. His appeal was dismissed by Judge of the First-tier Tribunal Housego in a decision that was promulgated on 11 September 2019.

2.              The Appellant was granted permission to appeal by Upper Tribunal Judge Sheridan on 1 June 2020. On 13 July 2020 Upper Tribunal Judge Rimington issued directions in the light of the COVID-19 pandemic. She took the provisional view that it would be appropriate to determine without a hearing whether or not there was an error of law in the decision of Judge Housego. In response to those directions the parties made further submissions. Upon consideration of those further submissions, I listed the matter for a remote hearing.

The Background

3.              The Appellant came to the UK on 27 December 2010, having been granted leave to enter the UK as a Tier 4 (General) Student. On 9 May 2012 he made an in-time application for leave to remain as a student. On 25 August 2012 he was granted leave to remain in the UK as a Tier 4 (General) Student. His leave was valid until 22 November 2013.

4.              On 20 November 2013 the Appellant applied for leave to remain as a Tier 1 (Entrepreneur), together with another person with whom he said he was going into business in IT consultancy. The decision was initially refused by the Respondent in 2015. An appeal against this decision was allowed to the limited extent that the matter was "remitted" to the Respondent.

5.              The Respondent made another decision on 22 March 2016 refusing the application because the Appellant had used a proxy test taker for an English language test and had submitted a fraudulent certificate with his application made on 9 May 2012. The Appellant appealed against this decision. On 20 March 2017 his appeal was allowed by the First-tier Tribunal. The judge concluded that the Appellant had not used deception.

6.              On 21 August 2017 the Secretary of State specialist appeals team wrote to the Appellant's solicitors stating "this case has been refused permission to appeal to both the First-tier and Upper Tribunals, we have no further right of appeal. No further challenge will be made".

7.              On 5 October 2017 the Secretary of State wrote to the Appellant stating that

"The implementation of this decision [the successful appeal] will be taken by the postdecision caseworker in Sheffield. We aim to implement the Immigration Judge's decision on their application as soon as possible and it may be necessary for us to write to you again to request further information".

8.              Despite the above communication the application was refused by the Secretary of State in the decision of 21 December 2018 which was the subject of the appeal before Judge Housego.

 

 

The decision of the First-tier Tribunal promulgated 20 March 2017

9.              The judge found that the Appellant was a truthful witness and that the Respondent had not discharged the legal burden of proving that his TOEIC certificate was procured by dishonesty. She said as follows at paragraph 36:-

"I should add that the Respondent was satisfied that the Appellant had scored 95 points for his Tier 1 Entrepreneur application but refused the application under paragraph 245DD(a). In view of the findings made above the refusal under paragraph 245DD(a) falls away".

10.          After that hearing the Appellant received communication from the Secretary of State as set out above.

The decision of the Respondent of 21 December 2018

11.          The Secretary of State again refused the application on the basis that she was not satisfied that the Appellant is a genuine entrepreneur.

12.          She relied on the case of Arshad and Others (Tier 1 applicants - funding "availability") [2016] UKUT and stated, a lthough it was accepted that (unlike in relation to Profectus) no evidence has been provided as to the extent or derivation of Equinox funds, the connections between Equinox and Profectus suggest that the source of such funds was likely to be the same, or in any event that no additional funds were available to Equinox.

13.          The Secretary of State stated:-

"In the interests of fairness, given the time that has passed since your application, the Secretary of State has considered whether the funding offer remains available to you. But on balance of probabilities, even if a successful funding offer had been made, we do not see how this could now be fulfilled. The Companies House filings documentation reveals that Mohammed Amran Azram (the signee of the funding letter from Equinox, and original director), and Mohammed Serfraz (also an original director), appointments as members of Equinox were terminated as of 1 May 2015.

14.          In relation to the Appellant's business plan the Secretary of State concluded that it contains a number of factual errors and these are set out in some detail by the author of the refusal.

The decision of Judge Housego

15.          There was a skeleton argument before the First-tier Tribunal, which in summary argues that the Respondent should have implemented the decision of Tribunal which was promulgated on 20 March 2017. The Appellant relied on the cases of Patel (revocation of sponsor's licence - fairness) India [2011] UKUT 211 and Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 151.

16.          There was no oral evidence before the First-tier Tribunal. The judge said there were no facts in dispute. The appeal was determined on submissions.

17.          The judge recorded that the primary submission made by the Appellant was that the appeal should be allowed because the Secretary of State promised to implement the 2017 decision and "there was no mandate to revisit the points awarded." It was submitted that there were strong grounds to allow the appeal on human rights grounds.

18.          The presenting officer described the situation as "odd" because points had been awarded when the application was considered on 22 March 2016. The presenting officer submitted that the application had been refused ( on 21 December 2018) on suitability grounds and it was not known the extent to which the points had been substantively considered, particularly given that Arshad postdated the original decision. The decision under appeal gave full reasons why the application should be rejected

19.          At paragraph 47 the judge said that the real issue in the appeal is that during the long history of the application Arshad was decided and the Tribunal found that the funding used in multiple applications was a clever manipulation of the Rules and not genuine. The judge stated "The Appellant's funder is that funder or as close to it as makes no difference". The judge said at paragraph 48 "knowing this, I find it cannot be right to permit the appeal to succeed ...". He stated:-

"If it was considered afresh, then there is a prima facie case that it would be refused. Given the TOIEC certificate provided, and the Secretary of State's response to such certificates at the time it is unsurprising that the Secretary of State awarded all the points at face value, then used suitability grounds to refuse. The first decision did not give any reasons why the points were awarded and did not have to do so, but since this was before Arshad there would have been no reason to question the funding at that time".

20.          The judge acknowledged that the counterargument was strong, as there was a judicial decision which was "unequivocal" and which set out that the points had been awarded and that the reason for refusal had fallen away. The judge said that the change of circumstances arises from the decision of Arshad.

21.          The judge did not find that there was any analogy with the case of Balajigari and SSHD [2009] EWCA Civ 673 and found that in any event the Appellant had an opportunity to advance a case by way of a statutory appeal. The judge said at paragraph 53

"The Appellant had the legitimate expectation of being approved after his Ft-T appeal was allowed, and after the Secretary of State decided not to challenge the Ft-T decision and said it would implement it. In my judgment that does not mean that he then had the right to 'minded to refuse' notice, or an absolute right to the grant of a visa".

22.          The judge acknowledged that the Appellant had a right of appeal and that he chose to base that on legal submissions and chose not to engage with the substantive decision. He said it was the Appellant's choice to limit his appeal in this way. He said that it was open to him to advance his appeal in the alternative. At paragraph 56 the judge stated:-

"As it is, he has not met the burden of proof that lies upon him, as set out in Arshad. The absence of the notes of the 2014 interview is unfortunate, but that is not an issue that assists the Appellant, not least as he has not engaged with the reasons given for refusal".

23.          The judge took into account that the application was made in 2013, almost six years ago, and if he were to remit the application for reconsideration it is highly unlikely that the Secretary of State will grant the application after considering what representations are made. The judge said that whatever the outcome of an appeal there will "very likely be a request for an upward appeal". At paragraph 59 he said:-

"I accept that it is unsatisfactory for a refusal letter to state, as here, that 'all the evidence suggests' without specifying that evidence, but the root cause of the refusal is absolutely clear. First the Secretary of State thinks the funding is a sham, as it is from an Arshad funder, and for the reasons set out in that case".

24.          The judge went on to say that the business plan was not real and that it was not a genuine business seeking £50,000 because no commercial lender would advance that amount of money on flimsy grounds "still less without nailing down a shareholder's agreement to be sure to reap rewards in future if the speculative exercise was successful". At paragraph 60 the judge said as follows:-

"60. This is an unusual case, and whichever side lost would have sought permission to appeal. It will now fall to the Appellant to do so, and if permission is granted he will doubtless wish to deal with the reasons given for the Secretary of State's refusal of his application. The Upper Tribunal will then be able to give a ruling on whether I am right to reject the primary submission (which would not involve consideration of the merits of the refusal) or not and if not then it can itself to decide (sic) whether the reasons for refusal were sound, or not. That is a route consistent with the overriding objective and should enable finality in the shortest possible time. Alternatively, the Appellant may decide that the reasons for refusal cannot be overcome, and decide to limit any challenge to this decision to the primary argument that the Secretary of State was obliged to issue the visa by reason of the Ft-T decision of March 2017".

The grounds of appeal before the UT

25.          Ground 1 asserts that the findings in relation to Arshad are fundamentally flawed. There is lengthy argument on this ground. I do not need to engage with this.

26.          Ground 2 raises the issue of fairness with reference to Thakur and Patel and Balajigari . It is submitted that the Tribunal could not carry out the process themselves because of the prohibition on new evidence in section 85A(4) of the Nationality, Immigration and Asylum Act 2002. Furthermore the Respondent in the letter to the Appellant in October 2017 said that if further information was required they would write to the Appellant. It is argued that the Appellant had a legitimate expectation.

27.          The judge said that the Appellant "has chosen not to engage with the matters set out in the refusal letter" and "he could have pleaded his appeal" however there is no reference to or consideration of section 85A of the 2002 Act.

28.          It is further argued that fairness demanded that the Respondent produced the Appellant's interview.

29.          Ground 3 is that the judge did not properly engage with Article 8 ECHR.

30.          Ground 4 is that the judge failed to apply binding authority, namely Boafo, R and Secretary of State for the Home Department, ex parte [2002] EWCA Civ 44, TB (Jamaica) [2008] EWCA Civ 977, and Chomanga (binding effect of unappealed decisions) Zimbabwe [2011] UKUT 312.

Rule 24 response of 27 July 2020

31.          The Secretary of State's position is that the First-tier Tribunal Judge was entitled to note that the first refusal decision did not detail the consideration of points awarded and that the decision was made before Arshad. The refusal decision made by the Secretary of State in 2016 focused entirely on the TOEIC-ETS issue and that was the focus of the appeal. The finding of the First-tier Tribunal in 2016 was clearly made in relation to the ETS issue. The remark in relation to scoring of points reflected the narrow scope of that appeal. This was not a finding on the merits of whether the Appellant scored 95 points but was simply a contextual or obiter comment.

32.          Arshad involved a complicated and intricate assessment of the availability of funding. It is evident that the Appellant was seeking to rely on finances from the same source as Profectus through Providentia Capital LLP (same FSA Regulation number 426749) which features throughout the decision in Arshad. Arshad shed a retrospective light on the Appellant's application. Any communications between the SSHD and the Appellant referred to in the grounds must be considered in the light of the fact that the only issue in dispute before the Tribunal in 2016 was whether the Appellant had practised deception by using a fraudulent ETS certificate. Reference is made to the headnote in Arshad to assert that the offer of potential funding was in effect defunct as the authors of the offer Mr Azram and Mr Serfraz were no longer appointed as directors of Equinox as of 1 May 2015, therefore the application on that point would fail on availability.

33.          The burden of proof remained with the Appellant at all times. The application was rejected on the basis that he had not shown that funds were available to him and that his business plan was not deemed credible.

34.          The Secretary of State acknowledges "that it is unfortunate" that there was no interview record available but it is noted that the interview did not inform the basis on which to refuse the Appellant's application and nor was it a matter held against the Appellant.

35.          Whilst the Appellant relies on Chomanga the Respondent refers the UT to paragraph 21 of the judgement which reads as follows:-

"21. None of the exceptions to the general principle that an unappealed decision is binding set out in paragraph 35 of Stanley Burnton LJ's judgment apply in the present case. There was no fresh evidence which was not available at the date of the hearing, no change in the law and no relevant change of circumstances or new events after the date of decision. This was also not a case where there was subsequent evidence of fraud: see EB (fresh evidence - fraud - directors) Ghana [2005] UKAIT 00131."

36.          There was a change in the law on matters directly relevant to this appeal ( Arshad). At the very least in the light of the non-availability of funding for the reasons set out above there was a clear material change in circumstances.

37.          The judge dealt with issues of fairness and that whilst the Appellant may have been restricted by the provisions under section 85A, he opted to provide no evidence in rebuttal whether that be under the Rules or under ECHR.

The Appellant's response to the Rule 24

38.          The Presenting Officer said at the hearing before Judge Housego that he did not know whether the rules had been substantively considered when full points were previously awarded to the Appellant in the decision of 22 March 2016. There was nothing before the Tribunal to show that the Respondent had not considered all issues before awarding points to the Appellant.

39.          The Secretary of State accepted that no evidence had been provided as to the extent or derivation of Equinox funds. The judge did not engage adequately with this. In relation to the business plan the Secretary of State ignores that the Appellant was interviewed prior to the decision and he was questioned about funding and following that interview awarded full points.

40.          Whilst the Respondent says that the funding was defunct as the authors of the offer were no longer appointed directors of Equinox as of 1 May 2015 so the application would fail on availability of funds, this makes little sense against the full award of points in the decision dated 22 March 2016.

41.          The Appellant's case was that he answered issues relating to funding when interviewed by the Respondent in 2014. The interview, which the Respondent has not been able to find, should have informed the decision. The failure to re-interview the Appellant prior to raising new matters was unfair and unlawful.

42.          Judge Housego's decision is fundamentally flawed as it failed entirely to address the prohibition on new evidence. In relation to Article 8 it is argued that there was no dispute that the Appellant was arguing against his removal. The Respondent accepts that the Appellant raised Article 8 in his grounds of appeal and that he had raised his nine years of residence and private life.

43.          The Respondent has failed to adequately engage with ground 4 and Chomanga.

Error of Law

44.          The parties agreed that the old statutory regime applied. The Appellant appealed against the decision of the Secretary of State on the basis that the decision was not in accordance with the law (s84 (1) (f) of the 2002 Act. [1]) So far as his appeal against the decision under the Rules is concerned s85A applies. [2]

45.          The judge erred because he did not properly apply Chomanga. It is not clear to me whether the case was brought to his attention. While the grounds before the First-tier Tribunal and the skeleton argument rely on the previous decision of the Tribunal, neither specifically raises the Chomanga. The head note of which reads as follows:-

" The parties are bound by unappealed findings of fact in an immigration judge's decision. It is therefore not open to the respondent following a successful and unchallenged appeal by an appellant to make a further adverse decision on the same issue relying on the same evidence as before unless there is evidence of fraud or one of the exceptions identified in para 35 of the judgment of the Court of Appeal in Secretary of State v TB [2008] EWCA 997 applies."

46.          At paragraph 19 of the judgement in Chomanga, the UT set out the salient parts of Stanley Burnton LJ's summary of the issues of principle in TB as follows:

"32. As a matter of principle, it cannot be right for the Home Secretary to be able to circumvent the decision of the IAT by administrative decision.  If she could do so, the statutory appeal system would be undermined; indeed, in a case such as the present, the decision of the immigration judge on the application of the Refugee Convention would be made irrelevant.  That would be inconsistent with the statutory scheme.

33. The principle that the decision of the Tribunal is binding on the parties, and in particular on the Home Secretary, has been consistently upheld by the Courts.  In R (Mersin) v Home Secretary [2000] EWHC Admin 348, Elias J said:

'In my opinion there is a clear duty on the Secretary of State to give effect to the Special Adjudicator's decision.  If he can refuse to do so in the event of changed circumstances or because there is another country to which the applicant can be sent, there is still a duty unless and until that situation arises.  It would wholly undermine the rule of law if he could simply ignore the ruling of the Special Adjudicator without appealing it, and indeed Mr Catchpole [Counsel for the Home Secretary] does not suggest that he can.  Nor in my opinion could he deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it.  In my judgment, once the adjudicator had determined the application in the applicant's favour, the applicant had a right to be granted refugee status, at least unless and until there was a change in the position.'

34. In R (Boafo) v Home Secretary [2002] EWCA Civ, [2002] 1 WLR 44, Auld LJ said at [26] in a judgment with which the other members of the court agreed, '... an unappealed decision of an Adjudicator is binding on the parties.'  In R (Saribal) v Home Secretary [2002] EWHC 1542 (Admin), [2002] INLR 596, Moses J said:

'17.    The decision in ex parte Boafo demonstrates an important principle at the heart of these proceedings.  The Secretary of State is not entitled to disregard the determination of the IAT and refuse a claimant's right to indefinite leave to remain as a refugee unless he can set aside that determination by appropriate procedure founded on appropriate evidence.'

35. Of course, different considerations may apply where there is relevant fresh evidence that was not available at the date of hearing, or a change in the law, and the principle has no application where there is a change in circumstances or there are new events after the date of decision: see Auld LJ in Boafo at [28].  But this is not such a case.

36. The judge described the attempt by the Secretary of State to raise the s.72 issue after the immigration judge's decision and to refuse leave to enter and to remain as an abuse of process.  That is an expression normally reserved for abuses of the process of the courts.  The Secretary of State's action might be castigated as an abuse of power, but I would prefer to avoid pejorative expressions of uncertain denotation and application and to hold simply that the Secretary of State was bound by the decision of the immigration judge and that her subsequent action was unlawful on the ground that it was inconsistent with that decision.  It follows that the judge's conclusion was correct.  The Home Secretary is bound to grant TB the leave to which the immigration judge's decision entitled him."

47.          On 22 March 2016 the Respondent refused the Appellant's application on ETS grounds only; however, full points were awarded under the PBS. This would accord with the interpretation of that decision by the Tribunal in 2017. I accept Mr Lemer's submission about the decision letter. A proper reading of it indicates that there was an assessment of the points to be awarded to the Appellant undertaken by the Respondent. If indeed this was not the case, it was open to the Respondent to appeal the decision of the Judge allowing the appeal on 20 March 2017. There was no application made.

48.          At the hearing in 2017, the Respondent was not represented. However, the case of Arshad had by then been promulgated for several months and the connection between Exquinox and Profectus Venture Capital was known to the Respondent who did not raise it before the judge in 2017. The information relied on by the Respondent from Companies House related to 2015. The change in circumstances arose before the hearing of the Appellant's appeal in 2017. Therefore the material relied on by the Respondent was available when the appeal was heard in 2017. However, the Respondent did not rely on issues of funding or the business plan, having awarded full points to the Appellant.

49.          It was open to the Respondent to raise the matter before the hearing in 2017. All matters that are now relied on by the Respondent refusing the application could have been raised before the First-tier Tribunal in 2017. This was not a case of new events after the date of the decision of the First-tier Tribunal. In these circumstances, properly applying Chomanga, the appeal should have been allowed by Judge Housego on the basis that the decision of the Respondent was not in accordance with the law (s86 (3) (a) of the 2002 Act. [3]). It was not open to the Respondent to make a further adverse decision in the absence of an exception (identified in para 35 of the judgement of the Court of Appeal in Secretary of State v TB [2008] EWCA 997)).

50.          I set aside the decision of the First-tier Tribunal and allow the appeal on the limited basis that the decision of the Respondent on 21 December 2018 is not in accordance with the law. The consequence of my decision is that the application made on 20 November 2013 remains outstanding.

51.          Judge Housego's decision is set aside in its entirety. However, I make the following observations. It may be open to the Respondent to curtail any leave granted to the Appellant (following my decision) in the light of a change in circumstances.

52.          Although the following is irrelevant to the outcome of this appeal in the light of the absence of a lawful decision by the Secretary of State, I observe that any fairness issue arising from the alleged failure to give the Appellant an opportunity to respond to the allegations may have had more weight had the Appellant indicated what evidence he would have produced. Furthermore, while s85A of the 2002 Act prevented him from adducing such evidence in a points based appeal, there was nothing preventing the Appellant from submitting evidence in support of his appeal under Article 8. It is not correct to say that he did not have the opportunity to advance his case. He chose not to advance his case before the First-tier Tribunal challenging the substantive decision. There is no substance in the Balajigari point.

53.          The judge did not determine the appeal under Article 8. There was no evidence that the Appellant enjoyed family life here. There was no evidence that there were very significant obstacles to integration. While the Appellant had been in the United Kingdom for a number of years, this was not arguably such a weighty factor that it is capable of tipping the scales in his favour so far a proportionality is concerned. The Appellant simply failed to develop an appeal on Article 8 grounds.

 

Notice of Decision

The appeal is allowed to the extent that the decision of the judge is not in accordance with the law.

No anonymity direction is made.

 

 

Signed Joanna McWilliam Date 24 March 2021

 

Upper Tribunal Judge McWilliam