LS (post-decision evidence; direction; appealability) Gambia

Factual and Procedural Background

The Appellant, a citizen of a foreign country, applied to the Respondent for leave to remain in the United Kingdom as a student. The Respondent refused this application, prompting the Appellant to appeal to an Adjudicator, who allowed the appeal and directed that the Appellant be granted leave to remain as a student. The Respondent obtained permission to appeal this determination to the Immigration Appeal Tribunal. Following the commencement of the appeal provisions of the 2004 Act, the grant of permission took effect as an Order for reconsideration of the Appellant's appeal, limited to the grounds upon which permission to appeal was granted.

The Appellant's initial application was made on 2 April 2003, after approximately eighteen months in the UK, seeking permission to remain for a one-year full-time course ending 30 June 2004. The Respondent delayed consideration but ultimately refused on 8 March 2004, citing the Appellant's poor academic performance in the original course as evidence of inability to follow the proposed course of study. Despite the failures, the Respondent did not rely on paragraph 60(v) of the Immigration Rules for the refusal.

The Appellant appealed, and at the hearing on 20 September 2004, the Adjudicator found that the Appellant had since passed the relevant exams and been accepted for further study, exempted from the first year due to the diploma obtained. The Adjudicator accepted the Appellant's explanation for earlier failures, related to personal distress, and considered the relevant statutory provisions and Immigration Rules. The appeal was allowed on the basis that the Appellant met the Immigration Rules at the date of the Adjudicator's consideration, and leave to remain was granted without specifying a period.

The Respondent appealed the Adjudicator's decision on grounds concerning the scope of evidence admissible on appeal, arguing that the Adjudicator erred in considering post-decision evidence and that the appeal should be confined to circumstances at the date of the original decision.

Legal Issues Presented

1. Whether, in an appeal against an immigration decision, the Adjudicator is limited to considering circumstances existing at the date of the original decision or may also consider facts arising after that date.
2. Whether the Adjudicator's direction granting leave to remain without specifying a period was appropriate and subject to appeal.
3. Whether the Appellant had a right of appeal given that at the time of the application he had no extant leave to remain in the United Kingdom.

Arguments of the Parties

Respondent's Arguments

• The Adjudicator's jurisdiction to consider post-decision evidence was flawed and limited by statutory provisions.
• Section 85 of the Nationality, Immigration and Asylum Act 2002 must be read with section 84, restricting grounds of appeal to those existing at the date of the decision.
• The substance of the appeal was whether the refusal to vary leave was correct at the time of decision; subsequent academic success was irrelevant to this.

Appellant's Arguments

The opinion does not contain a detailed account of the Appellant's legal arguments beyond the factual explanation accepted by the Adjudicator.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework under the Nationality, Immigration and Asylum Act 2002, focusing on sections 82, 84, 85, and 86. It identified that the relevant appeal was against a refusal to vary leave to remain, with the ground being that the decision was not in accordance with immigration rules.

The court acknowledged ambiguities in the tense and wording of the statutory provisions but emphasized section 85(4), which allows an Adjudicator to consider evidence relating to matters arising after the date of the decision, except in cases of refusal of entry clearance or certificates of entitlement (section 85(5)), where the "clock stops" at the date of decision.

The court rejected the Respondent's argument that the Adjudicator should be confined to facts at the date of the original decision in this case, holding that the appeal process contemplates consideration of current circumstances to provide a "one stop" resolution of the Appellant's rights. This approach prevents determinations that are legally correct but practically obsolete due to changed circumstances.

Regarding the Adjudicator's direction granting leave without a specified period, the court noted that such directions are appealable separately. Since the Respondent did not appeal this direction, it must stand if the Adjudicator's allowance of the appeal was not erroneous.

However, the court identified a critical procedural defect: at the time of the Appellant's application, he had no extant leave to remain, having expired the day before. Under the statutory scheme, decisions refusing leave to vary existing leave are only appealable if the person has such leave at the time of decision. Therefore, the Appellant had no right of appeal, and the Adjudicator lacked jurisdiction. Consequently, the determination and direction have no legal effect, and the appeal by the Respondent must be allowed, effectively dismissing the Appellant's appeal.

Holding and Implications

The court ALLOWED the Respondent's appeal on the basis that the Appellant did not have a right of appeal because he lacked extant leave at the time of the decision. The Adjudicator therefore had no jurisdiction, and his determination and direction are void.

The direct effect of this decision is that the Appellant's purported appeal is dismissed, and the Respondent's refusal stands. No new precedent beyond the application of statutory provisions to these facts was established. The parties must proceed accordingly, recognizing the absence of a valid appeal in these circumstances.