Effect of Continuing Applications under Section 85A: Upper Tribunal's Ruling in Khatel and Others

Introduction

The case of Khatel and others (s85A; effect of continuing application), decided by the Upper Tribunal (Immigration and Asylum Chamber) on January 28, 2013, represents a pivotal moment in the interpretation of the Immigration Rules concerning Tier 1 Post-Study Work Migrants. This judgment addresses the legal nuances surrounding the submission of new evidence post-application and the implications of Section 85A of the Nationality, Immigration and Asylum Act 2002 (NIAA), as amended.

The appellants – Prakash Khatel, Mostaqium Al Islam, Narayan Adhikari, and Mr. Prasad Raju – challenged the refusal of their applications for leave to remain in the United Kingdom as Post-Study Work Migrants. Central to their appeals was the argument that their applications should be treated as continuous processes, allowing for the consideration of new evidence submitted after the initial application but before the final decision.

Summary of the Judgment

The Upper Tribunal scrutinized whether applications for leave to remain under the Tier 1 Post-Study Work Migrant category should be considered continuous from the date of submission until a decision is rendered. The tribunal evaluated whether Section 85A of the NIAA permitted appellants to rely on evidence notified to the Secretary of State after the initial application date but before the decision.

The Tribunal referred extensively to prior cases, notably AQ (Pakistan) v SSHD [2011] EWCA Civ 833, which established that such applications are indeed continuous. Consequently, evidence obtained after the initial application date but before the decision was deemed admissible. This interpretation led to the conclusion that previous refusals based solely on the absence of qualifications at the time of application were legally flawed.

As a result, the Tribunal allowed the appeals of Khatel, Adhikari, and Al Islam, setting aside the prior refusals. Conversely, Mr. Raju’s appeal, which aligned correctly with the precedents, was dismissed.

Analysis

Precedents Cited

The judgment intricately weaves several precedents to underpin its reasoning:

AQ (Pakistan) v SSHD [2011] EWCA Civ 833: Established that applications for leave to remain are continuous until a decision is made, allowing for the consideration of new evidence within this period.
AS (Afghanistan) v SSHD [2009] EWCA Civ 1076: Addressed the treatment of new applications post-immigration decisions, emphasizing the continuity of the application process.
Kan (PSW degree award required) India [2009] UKAIT 22 and NO (PSW award needed by date of application) Nigeria [2009] UKAIT 54: Reinforced the necessity of meeting qualification requirements at the time of application.
Ali (section 120-PBS) Pakistan [2012] UKUT 368 (IAC): Considered the implications of Section 85A in varying leave applications under a points-based system.
Alam and others v SSHD [2012] EWCA Civ 960: Highlighted the limitations imposed by Section 85A on introducing post-decision evidence in points-based system appeals.

These precedents collectively influenced the Tribunal's decision, particularly in understanding the scope and application of Section 85A within the context of continuous applications.

Legal Reasoning

The crux of the Tribunal's reasoning hinged on the interpretation of Section 85A of the NIAA and its interaction with continuous applications under the points-based system. The Tribunal adopted the viewpoint from AQ (Pakistan), recognizing that an application remains active until a decision is rendered. This continuity implies that any evidence submitted within this window is pertinent and should be considered.

The Tribunal deliberated on whether Section 85A precluded reliance on such evidence. It concluded that Section 85A does not inherently bar the consideration of evidence presented before the decision was made, provided it was part of the ongoing application process. This interpretation aligns with the overarching legislative intent to prevent a multiplicity of applications while ensuring fairness in evaluating all relevant evidence.

Moreover, the Tribunal addressed the Secretary of State’s attempt to invoke Section 85A to exclude post-application evidence. By doing so, the Tribunal emphasized that any exclusionary principles must be balanced against the procedural fairness afforded by treating applications as continuous.

Impact

This judgment has significant ramifications for future cases involving Tier 1 Post-Study Work Migrants:

Affirmation of Continuous Application Principle: Reinforces the notion that applications remain open and subject to new evidence until a final decision is made.
Clarification of Section 85A: Provides a nuanced understanding of how Section 85A interacts with continuous applications, preventing overly restrictive interpretations that could unjustly exclude relevant evidence.
Precedent for Transitional Cases: Offers guidance on handling cases that fall within transitional provisions, especially in the context of changes to the points-based system.
Judicial Consistency: Aligns tribunal decisions with higher court interpretations, promoting uniformity in immigration law adjudications.

By allowing certain appeals based on newly submitted evidence within the application period, the judgment ensures that applicants are adjudicated fairly, with all pertinent information considered.

Complex Concepts Simplified

Section 85A of the Nationality, Immigration and Asylum Act 2002

What It Is: An amendment to the NIAA introducing exceptions to the general power of tribunals to consider new evidence beyond the original application details.

Key Point: It restricts the Tribunal from considering evidence that the Secretary of State was not aware of at the time of the initial decision, especially if the evidence arises after the application was made.

Continuous Application Concept

What It Is: The idea that an immigration application remains active and ongoing from the time it is submitted until a final decision is made.

Implication: Allows applicants to submit additional evidence or updates related to their application during this period, enhancing the fairness of the evaluation process.

Points-Based System (PBS)

What It Is: An immigration framework that assigns points to applicants based on specific criteria such as qualifications, English proficiency, and job offers.

Relevance in This Case: The Tribunal examined how PBS criteria, particularly the timing of qualification awards, affect the eligibility for leave to remain.

Conclusion

The Upper Tribunal's judgment in Khatel and others underscores the importance of treating immigration applications as continuous processes, particularly within the points-based system framework. By aligning with preceding case law, notably AQ (Pakistan), the Tribunal ensured that applicants are afforded the opportunity to present all relevant evidence available up to the point of decision-making.

Importantly, the ruling clarifies the application of Section 85A, balancing the need to prevent frivolous multiple applications with the imperative of procedural fairness. This decision not only rectifies previous material errors of law but also sets a precedent that promotes consistency and equity in the adjudication of immigration appeals.

For legal practitioners and applicants alike, this judgment emphasizes the critical nature of timely and comprehensive evidence submission and highlights the judiciary's role in upholding the integrity of immigration processes.