Alam & Ors v Secretary of State for the Home Department

Factual and Procedural Background

These three consolidated appeals concern applications for leave to remain in the UK as Tier 4 (General) Student Migrants under the Points-Based System ("PBS") in the Immigration Rules. Each Appellant’s application was refused by the Secretary of State due to failure to provide specified documentary evidence required under the PBS. The appeals were lodged prior to 23rd May 2011, with hearings occurring after that date. At the hearings, the Appellants produced the previously missing evidence. The central procedural question was whether the First-tier Tribunal ("the Tribunal") was entitled to consider this new evidence given the commencement of section 85A of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") on 23rd May 2011, which restricts the admission of new evidence on appeal.

The facts involve three individual Appellants:

• Plaintiff 1: A citizen of Bangladesh who applied to extend Tier 4 leave but was refused due to outdated bank statements. At the Tribunal hearing, he produced updated statements which were not admitted. The Tribunal nevertheless allowed his appeal based on a proportionality claim under article 8 of the ECHR. The Upper Tribunal overturned this, dismissing both the immigration and article 8 appeals.
• Plaintiff 2: A citizen of Pakistan who applied to extend Tier 4 leave but was refused for failure to provide a specific examination history document (F3). At the Tribunal hearing, he produced the document and his appeal was allowed. The Upper Tribunal set aside this decision, concluding the document was not submitted with the application and dismissing the appeal.
• Plaintiff 3: A citizen of Ghana whose application was refused for failing to provide bank statements showing required funds. She produced the statements at the Tribunal hearing, which allowed her appeal. The Upper Tribunal set aside the decision on the basis that section 85A had come into force two days before the hearing and prohibited consideration of new evidence.

The appeals engage the interpretation and effect of section 85A of the 2002 Act, introduced by the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 ("the Order"), which restricts the Tribunal’s discretion to admit new evidence on PBS appeals after 23rd May 2011.

Legal Issues Presented

1. Whether the Tribunal was entitled to consider new evidence produced at the appeal hearing for applications made before 23rd May 2011, given the commencement of section 85A on that date.
2. The proper construction and retrospective application of section 85A and the related Commencement Order.
3. Whether section 85A applies to appeals from the First-tier Tribunal to the Upper Tribunal.
4. The scope of the term "application" in section 85A, including whether additional grounds submitted in response to a section 120 notice form part of the original application.
5. Whether the Secretary of State owes a common law duty of fairness to notify applicants of missing specified documents before refusing their application.
6. The correctness of the Upper Tribunal’s treatment of appeals under article 8 of the ECHR in this context.
7. The fairness and administrative implications of restricting new evidence on appeal under the PBS.

Arguments of the Parties

Appellants' Arguments

• Section 85A should not apply to appeals relating to applications made before 23rd May 2011, or to appeals lodged before that date (Ground 1).
• Section 85A applies only to appeals before the First-tier Tribunal, not to appeals to the Upper Tribunal (Ground 2).
• The term "application" in section 85A includes additional grounds submitted in response to section 120 notices (Ground 3).
• The Secretary of State had a common law duty of fairness to notify applicants of missing documents and allow correction before refusal (Ground 4).
• The Upper Tribunal erred in dismissing the article 8 appeal, as the appellant’s failure was not a "near miss" but a "no miss" under the Rules (Ground 5).
• Plaintiff 2 was entitled to rely on the missing document (F3) at the Tribunal hearing to prove the validity of his Confirmation of Acceptance for Studies (Ground 6).
• Given the UK Border Agency’s letter indicating that problems with validity would be communicated, it was unfair to refuse Plaintiff 2’s application without notification and opportunity to remedy (Ground 7).
• The postponement of Plaintiff 3’s hearing date and the Tribunal’s order to submit documents effectively altered her rights retrospectively, making the refusal unfair (Ground 8).

Respondent's Arguments

• The Commencement Order and section 85A apply retrospectively to all appeals pending on or after 23rd May 2011, except those where a hearing had already taken place.
• The Upper Tribunal properly interpreted the Order and section 85A, rejecting attempts to circumvent the statutory restrictions on new evidence.
• The exceptions in section 85A apply equally to appeals to the Upper Tribunal.
• The term "application" does not include additional grounds submitted after the original application; such grounds fall within the section 85A restrictions.
• There is no general duty on the Secretary of State to notify applicants of missing documents or to allow correction before refusal, as the PBS is a highly prescriptive scheme designed to ensure certainty and predictability.
• The letter from the UK Border Agency to Plaintiff 2 referred only to preliminary validity checks, which do not extend to verifying the completeness of specified documents.
• The Tribunal hearing date postponement does not trigger the transitional provision; the hearing starts on the actual hearing date, not on the notice of hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the statutory framework governing PBS appeals, particularly the effect of section 85A of the 2002 Act, brought into force by the 2011 Order on 23rd May 2011. It analysed the drafting and transitional provisions of the Order, including the Upper Tribunal’s decision in Shahzad, which had concluded that section 85A applies only to applications made on or after 23rd May 2011.

The Court found that the drafting errors in the Order (misnaming the Tribunal) were minor and could be rectified to give effect to the intended meaning. It rejected the Upper Tribunal’s conclusion that the transitional provision could never apply, holding that a hearing includes case management review hearings and that the hearing date is the actual hearing, not the notice of hearing.

The Court considered the retrospective effect of section 85A and the Order. It acknowledged that the change restricts the ability to submit new evidence on appeal, removing a "second bite at the cherry". However, the Court found this to be a procedural change affecting substantive rights but intended by Parliament, and not so unfair as to justify departing from the plain wording of the Order.

The Court also rejected arguments that section 85A does not apply to appeals to the Upper Tribunal, affirming that the statutory scheme encompasses such appeals. The Court analysed the definition of "application" and found that additional grounds submitted after the original application fall within the ambit of section 85A.

On fairness grounds, the Court held that the PBS is a highly prescriptive scheme designed to ensure predictability and consistency, and that no general duty arises on the Secretary of State to notify applicants of missing documents or to allow correction before refusal. The limited administrative practice of contacting applicants does not create a legal obligation.

Regarding the specific appeals, the Court held that the Tribunal was not entitled to consider new evidence produced at hearings after 23rd May 2011 for applications made before that date, unless a hearing had already taken place prior to that date. The Court acknowledged the unfortunate consequences for Plaintiff 3 but found no legal basis to override the statutory scheme.

Holding and Implications

DISMISSED

The Court dismissed all three appeals, holding that section 85A of the 2002 Act, as commenced by the 2011 Order, properly restricts the Tribunal’s discretion to admit new evidence on appeals against PBS refusals for applications made before 23rd May 2011, except where a hearing had already taken place prior to that date. The Court confirmed that this restriction applies to appeals before both the First-tier and Upper Tribunals.

The decision enforces the strict evidential requirements of the PBS, emphasizing the importance of submitting all specified documents with the original application. The ruling clarifies the retrospective effect of the commencement order and confirms that administrative practices do not create additional legal duties on the Secretary of State to notify or allow rectification of missing evidence.

No new precedent was established beyond affirming the correct interpretation and application of section 85A and the commencement order in the context of PBS appeals.