Immigration law update

In the cases of Anwar and Alam, both appellants had made applications for leave to remain as Tier 4 students. Both applications were refused because they had not produced the documentation required by the immigration rules and guidance. Both appealed and produced the relevant documentation before the tribunal.

 

The difficulty in adducing such evidence before the tribunal in points-based system appeals is that s85A(4)(a) of the Nationality, Immigration and Asylum Act 2002 prevents the tribunal from considering any evidence produced by an appellant unless it “was submitted in support of, and at the time of making, the application to which the immigration decision related”. However, the tribunal is entitled under s85(4)(a)(b) to take into account evidence if it relates to the appeal in so far as it relies on, inter alia, human rights grounds.

 

The upper tribunal overturned this decision, reasoning that his article 8 rights were not strong enough to require a departure from the rules. His appeal to the Court of Appeal was rejected. In Anwar’s case, his FTT appeal was allowed as it was found that he had sent the document with his application but this finding was overturned by the FTT.

 

By the time the appeals came to be heard by the Supreme Court, the issues had essentially narrowed to: (1) whether the conclusion of the majority in Afghanistan (AS) was correct regarding the ability of the tribunal to consider grounds raised for the first time in response to an s120 notice; and (2) the materiality in human rights cases of evidence that an appellant could in fact have complied with the rules, even though he failed to do so.

 

Poor legislation drafts

In deciding the first issue, Lord Carnwath, giving the leading judgment, identified the primary problem as being the poor drafting of the relevant legislation, which it described as “not only obscure in places and lacking in detail, but contains pointers in both directions”. After considering the arguments in depth, the court ultimately agreed with the approach of the majority in AS. It pointed to the existence of the s120 notice as a strong indication that it was intended that grounds raised in response to it would be considered at an appeal. The second question that then arose was whether the evidence adduced by the appellants was material to their article 8 case.

 

Lord Carnwath reviewed the two strands of conflicting case law going back to Pankina [2010] EWCA Civ 719, [2011] QB 736 regarding the question of whether, in a case in which an appellant had shown he could have met the substantive requirements of the rules (as both had in this case), the failure to meet the requirements of the rules should be treated as purely formal, reducing the weight to be attached to the objectives of immigration control in the proportionality balance. 

 

Lord Carnwath equated this argument to the “near-miss” principle, in which the extent by which the requirements of the rules are missed is relevant to the proportionality question.

 

Having reviewed the case law, Lord Carnwath agreed with the Court of Appeal in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261, [2013] QB 35 in which it rejected the concept of a “near-miss” or “sliding scale” principle in article 8 cases. He went back to the principles in Huang [2007] 2 AC 167, describing Lord Bingham’s judgment as “the most authoritative guidance on the correct approach of the tribunal to article 8” and concluded that the balance drawn by the rules may be relevant to the question of proportionality but could not provide a foundation for a “near miss” principle.

 

Protected rights

He cited his own earlier words in R (Rudi) v SSSHD [2007] EWCA Civ 1326 with approval “that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it...” but stressed that article 8 is concerned with private and family life, “not education as such”. The opportunity for a promising student to complete his course in this country was not in itself a right protected under article 8 and therefore could not provide grounds of appeal under this article.

 

Applying these principles to Anwar and Alam’s cases both failed. Anwar had not raised any separate human rights grounds before either tribunal so there was nothing to consider. In Alam’s case, although human rights had been raised, the only point in his favour was the fact that he had spent time in this country under the rules, which was insufficient to add weight to a case for favourable treatment outside the rules.

 

Consequently, the Supreme Court chose to take a very narrow view of what can constitute private life. A number of years spent studying in the UK will not be enough to even bring an applicant within the scope of article 8, let alone give rise to a prospect of a successful claim. Thus the primary lesson to be learnt for applicants from this case, especially those who have established few ties in the UK, is the importance of ensuring that all of the requirements of the rules are complied with at the time of the application. 

 

The primary issue in Patel’s case was the fact that the Secretary of State, having refused an application to vary leave to remain, did not issue removal directions. It was argued on the appellant’s behalf that in the light of R (on the application of Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159, [2011] Imm. A.R. 484, and Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, [2012] Imm. A.R. 254, that the refusal was unlawful. The Supreme Court completely rejected this argument, finding that there was no obligation to issue removal directions when refusing a variation application.

 

Revised appeals system

In reality, the decisions above are likely to be soon rendered academic as the government is intending to introduce a root-and-branch revision of the appeals system in the Immigration Bill. This new bill, currently making its way through parliament will restrict appeals to such an extent that an appellant could only appeal on human rights or asylum/humanitarian protection grounds, thereby limiting all in-country and out of country appeals where currently there would be an automatic right of appeal to the tribunal.

 

The reality of this is likely to place extra burden on the Administrative Court as the number of judicial review challenges where there is no right of appeal will no doubt increase. It remains to be seen in 2014 whether the bill will pass in its current form. SJ