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||Neutral Citation Number:  EWCA Civ 960
||Case No: C5/2011/2944
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
IA/14881/2011, IA/16337/2011 and IA/11952/2011
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
VICE PRESIDENT OF THE COURT OF APPEAL
LORD JUSTICE MOORE-BICK
LORD JUSTICE SULLIVAN
|| MAHBUB ALAM (1)
FAHAD ANWAR (2)
BERENICE EGHAN (3)
||- and -
|| SECRETARY OF STATE FOR THE HOME DEPARTMENT
Zane Malik and Shahadoth Karim (instructed by Kalam Solicitors) for Appellant (1)
Harshaka Kannangara (instructed by AA Immigration Lawyers) for Appellant (2)
Shaima Ammal for Appellant (3)
Jonathan Swift QC and Mr. Alan Payne (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 29th & 30th May 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Sullivan:
- These three appeals have been listed together because they all raise the same issue. In each case the Appellant applied for leave to remain in the UK as a Tier 4 (General) Student Migrant under the Points-Based System ("PBS") in the Immigration Rules. In each case the application was refused by the Secretary of State because the Appellant had failed to comply with one of the requirements in the PBS to provide specified documentary evidence. Prior to the 23rd May 2011 the three Appellants appealed against the refusal of their applications. Their appeals were heard by the First-tier Tribunal (Immigration and Asylum Chamber), ("the Tribunal") on various dates after the 23rd May 2011. At the hearing of their appeals the Appellants produced the missing documentation. Was the Tribunal entitled to consider this new evidence when determining their appeals, or was it prohibited from doing so by section 85A of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") which came into force on 23rd May 2011 by virtue of The UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 ("the Order")?
- Mr. Alam is a citizen of Bangladesh who entered the UK as a student on 26th August 2007. His leave as a Tier 4 migrant was due to terminate on 12th April 2011. On 1st April 2011 he made an application under Tier 4 of the PBS to enable him to continue with his studies for an ACCA qualification. On 20th April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation: the bank statements submitted with his application were dated more than one month prior to the application, and could not therefore be taken into account in assessing the points claimed for maintenance (funds).
- By the time of the hearing before the Tribunal, on 10th June 2011, Mr. Alam had produced the relevant bank statements. The Tribunal did not permit Mr. Alam to rely on the bank statements and dismissed his appeal under the Immigration Rules. However, the Tribunal allowed Mr. Alam's appeal on the basis that a refusal of his application would be a disproportionate interference with his rights under article 8 of the ECHR in circumstances where he had "clearly established that he meets the requirements of the Rules." On appeal by the Secretary of State the Upper Tribunal (Immigration and Asylum Chamber) held that the Tribunal had erred in determining the article 8 claim on the basis that Mr. Alam had met the requirements of the Immigration Rules when he had not met them, set aside the Tribunal's decision and dismissed both the appeal under the Immigration Rules and the article 8 appeal.
- Mr. Anwar is a citizen of Pakistan who entered the UK on 26th February 2010 with leave to enter as a student until 1st April 2011. On 31st March 2011 he made an application to extend his leave as a Tier 4 student to enable him to complete an ACCA course. He received a letter dated 5th April 2011 from the UK Border Agency (UKBA) which said (so far as relevant):
"Thank you for the application by the above-named on Form Tier 4. It will now be passed to a casework unit.
If there is any problem with the validity of the application, either because of the fee paid or another aspect of the application, a caseworker will write to you as soon as possible to advise what action you need to take to make a valid application.
You should expect to receive further correspondence from us giving you instructions for the next steps in making your application
We would appreciate it if you did not enquire about the progress of the application before you hear from us. It is not possible to make enquiries in person about the progress of an application at any of our Public Enquiry Offices, Biometric Enrolment Centres or via our Immigration Enquiry Bureau
- By letter dated 10th May 2011 the Secretary of State refused the application because a document "ACCA examination Financial Accounting (F3) Examination History Detail Document provided" said to have been used to assess his ability to study and complete the course by the London Business School in its confirmation of acceptance for studies of Mr. Anwar, had not been provided with the application.
- When Mr. Anwar's appeal was heard by the Tribunal on 23rd June 2011 he produced document F3 and said that it had been sent with his application form. The Tribunal accepted Mr. Anwar's evidence and allowed his appeal. On appeal by the Secretary of State, the Upper Tribunal set aside the Tribunal's determination on the ground that it was inadequately reasoned, concluded on the balance of probabilities that Mr. Anwar had not sent document F3 with his application, said that the terms of UKBA's letter dated 5th April 2011 did not impose an obligation on the Secretary of State to notify Mr. Anwar of the omission and invite him to submit the missing document before refusing his application, and dismissed Mr. Anwar's appeal.
- Miss Eghan is a citizen of Ghana who arrived in the UK on 25th July 2009 with entry clearance as a student valid until 28th February 2011. On 20th January 2011 she made an application for leave to remain as a Tier 4 student to pursue an MBA at City Banking College. Her application was refused by the Secretary of State on 16th March 2011 because she had failed to provide bank statements showing that she had funds in excess of £1600 for the relevant 28 day period. She appealed against that decision, and received a Notice of Hearing dated 4th April 2011 from the Tribunal telling her that her appeal would be heard on 4th May 2011. The Notice contained Directions which required her to send a bundle of all of the documents to be relied on at the hearing no later than 5 days before the hearing date. An amended Notice of Hearing dated 14th April 2011 told Miss Eghan that her hearing would now be heard on 25th May 2011.
- At the hearing on 25th May Miss Eghan produced the relevant bank statements. The Respondent was not represented, and section 85A was not referred to. The Tribunal allowed her appeal. On appeal by the Secretary of State, the Upper Tribunal set aside the Tribunal's decision on the basis that section 85A had been brought into effect two days before the Tribunal hearing on 25th May, the Tribunal had not been entitled to consider the bank statements, and had therefore erred in law. The Deputy Judge of the Upper Tribunal said that he was "obliged to dismiss this appeal with regret."
The PBS Scheme
- Part 6A of the Immigration Rules contains the PBS, which was introduced in November 2008. The PBS is based upon an approach that decisions on entitlement to enter and remain in the UK should be taken by reference to objectively verifiable criteria. Points are allocated to the relevant criteria, eg "Attributes", and "Maintenance (Funds)", and whether the application is granted or refused is determined by the overall points score. The PBS is very detailed and highly prescriptive. An important feature of the PBS is that it specifies the evidence that must be produced with the application in order to demonstrate that the criteria are met.
- Rule 245A provides, so far as relevant, that where Part 6A or Appendices A (which deals with Attributes) or C (which deals with Maintenance (Funds)) of the Rules "state that specified documents must be provided, that means documents specified by the Secretary of State in
.. the Points Based System Policy Guidance."
By way of example, paragraph 118 of Appendix A states that:
"118. No points will be awarded for a Confirmation of Acceptance of Studies unless: (a) the applicant supplies, as evidence of previous qualifications, specified documents that the applicant used to obtain the offer of a place on a course from the Sponsor
." (emphasis added)
Paragraph 13 of Appendix C states that:
"13. Funds will be available to the applicant only where the specified documents show
. That the funds are held or provided
..". (emphasis added)
- Paragraph 10 of the "Tier 4 of the Points Based System Policy Guidance" deals with the "Documents the student will need to send with his/her application", and advises applicants that:
"10. To claim points, a student must send the required documents listed in this guidance when he/she makes his/her application (paragraph 245AA of the Immigration Rules). We will only accept the documents listed in this guidance as evidence (proof)."
Under the heading "Claiming points for a Confirmation of Studies", paragraphs 97 and 98 of the Guidance state:
"97. If the Tier 4 sponsor has assessed the student's qualifications in order to assign the Confirmation of Acceptance for Studies, the student must send us these qualifications with their application. For each qualification listed, the student must provide either:
i. The original certificate(s) of qualification:
Each document must be the original (not a copy) and must clearly show the:
- name of the awarding institution,
- We will not accept original provisional certificates
ii - The original transcript of results
Each document must be the original (not a copy) and must clearly show the:
- Name of the academic institution;
- Confirmation of the award.
98. The student will need to know what evidence his/her sponsor has included on his/her Confirmation of Acceptance for Studies so he/she can include it with her application. The student must get this information directly from the Tier 4 sponsor before making the application. The UK Border Agency will not provide this information to the student."
Paragraphs 150 157 of the Guidance set out in detail the documents that a Tier 4 (General) student applicant must produce to show that he/she has held the requisite level of funds for a consecutive 28 day period ending no more than a month before the application.
The prescribed application form repeats the need for the specified documents to be provided with the application. Attributes are dealt with in Part K of the form. Question K1 asks for the student's CAS number. Question K3 tells the student:
"K3. The student must send us the evidence we need to support his/her application. He/she must get this information from his/her Tier 4 sponsor.
The student must send us each of the original certificate(s) of qualification and/or original transcript(s) of results that have been used as the basis of the offer of the place as explained by their Tier 4 sponsor.
Please tick to confirm that all of the qualification certificates and/or original transcripts of results that have been used as the basis of the offer of the place have been provided with the application."
Part L of the form deals with maintenance (Funds). Question L24 asks the student:
"L24. Please tick to confirm the documents submitted as supporting evidence to show the student has access to the required amount of money for maintenance and funds.
Personal bank or building society statements
Building society pass-book
Letter from a bank or building society confirming funds
Letter from a regulated financial institution confirming funds
Letter from a regulated financial institution confirming the agreement of a loan
No money owed, no evidence needed"
The Statutory Scheme
In each case, the Secretary of State's refusal of the application under the PBS was an immigration decision against which the appellant had a right of appeal to the Tribunal under section 82(2)(d) of the 2002 Act. The available grounds of appeal under section 84(1) included ground (a) "that the decision is not in accordance with immigration rules". When deciding whether the decisions to refuse the applications were in accordance with immigration rules the Tribunal was, prior to 23rd May 2011, given a wide discretion to admit new evidence by section 85(4) of the 2002 Act:
"(4) On an appeal under section 82(1)
..against a decision [the Tribunal] may consider evidence about any matter which [it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."
As enacted, section 85(4) was subject to the exceptions in subsection (5), but those exceptions did not apply to PBS appeals. Thus, if a PBS application had been refused by the Secretary of State because the applicant had failed to produce a specified document, or documents, the applicant could remedy the omission on appeal to the Tribunal. Some 63% of successful PBS appeals were allowed because the appellant produced new evidence, which had not been submitted with the application, at the hearing of the appeal before the Tribunal: see Baroness Browning's reply to Lord Avebury's Motion to Regret the Order on 7th July 2011. The Government believed that the ability to produce new evidence at the appeal stage threatened to undermine the operation of the PBS: ibid.
Section 19 of the UK Borders Act 2007 ("the 2007 Act"), was enacted in order to address this problem:
"19 Points-based applications: no new evidence on appeal
(1) For section 85(5) of the Nationality, Immigration and Asylum Act 2002 (c.41) (appeal: new evidence may be considered: exception) substitute
"(5) But subsection (4) is subject to the exceptions in section 85A."
(2) After section 85 of that Act insert
85A Matters to be considered: new evidence: exceptions
(1) This section sets out the exceptions mentioned in section 85(5).
(2) Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.
(3) Exception 2 applies to an appeal under section 82(1) if
(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),
(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a "Points Based System", and
(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).
(4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it
(a) was submitted in support of, and at the time of making, the application to which the immigration decision related.
(b) Relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),
(c) Is adduced to prove that a document is genuine or valid, or
The 2007 Act received the Royal Assent on 30th October 2007, but section 19 was not brought into force immediately. Section 59 deals with the commencement of the 2007 Act.
(d) Is adduced in connection with the Secretary of State's reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of "points" under the "Points Based System"."
"(1) Section 17 comes into force on the day on which this Act is passed.
(2) The other preceding provisions of this Act shall come into force in accordance with provision made by the Secretary of State by order.
(3) An order
(a) May make provision generally or only for specified purposes,
(b) May make different provision for different purposes, and
(c) May include incidental, consequential or transitional provision.
(5) An order shall be made by statutory instrument."
In his submissions on behalf of Mr. Alam, Mr. Malik referred to sub-section 59(4) which provides:
"(4) In particular, transitional provision
(d) in the case of an order commencing section 32
(i) may provide for the section to apply to persons convicted before the passing of this Act who are in custody at the time of commencement or whose sentences are suspended at the time of commencement
Section 32 provides for the automatic deportation of "foreign criminals": persons who are not British Citizens who are convicted of an offence and sentenced to imprisonment for at least 12 months.
The years passed. A number of Commencement Orders were made bringing various sections of the 2007 Act into force, then without any prior notice, the Order was made on Tuesday 17th May 2011 bringing section 19 into force on the following Monday, 23rd May 2011. Article 1 of the Order deals with citation. Articles 2 and 3 provide:
"Commencement of the UK Borders Act 2007
2. Section 19 (Points-based applications: no new evidence on appeal) of the UK Borders Act 2007 shall, subject to article 3, come into force on 23rd May 2011.
3. (1) The amendment made to the Nationality, Immigration and Asylum Act 2002(2) by section 19 of the UK Borders Act 2007 will not have effect in relation to an appeal in respect of which a hearing at the First-tier Tribunal of the Immigration and Asylum Chamber has taken place before 23rd May 2011 and which is still pending.
(2) For the purposes of this article, a "hearing" is where one or more Immigration Judges hear an appeal made under section 82(1) of the Nationality, Immigration and Asylum Act 2002 against a decision of the Secretary of State, at the First-tier Tribunal of the Immigration and Asylum Chamber and includes case management review hearings.
(3) For the purposes of this article, an appeal is "pending" when it has been instituted under section 82(1) of the Nationality, Immigration and Asylum Act 2002 but has not yet been finally determined, withdrawn or abandoned or has not lapsed under section 99 of that Act."
In Shahzad (s 85A: commencement)  UKUT 81 (IAC) the Upper Tribunal (Mr. CMG Ockleton, Vice President and Upper Tribunal Judge Southern) considered the effect of the Order, and concluded that on its true construction article 2 of the Order amends section 85 of the 2002 Act and introduces section 85A only in relation to applications made to the Secretary of State on or after the 23rd May 2011. The Upper Tribunal said in paragraphs 25 and 26 of its Determination:
"25. Closer inspection of article 3 of the Order reveals a number of remarkable features. The first is that its draftsman appears to have had little knowledge of the system of immigration appeals. He twice uses the phrase "at the First-tier Tribunal of the Immigration and Asylum Chamber". The use of the preposition "at" is strange; but the remaining words of the phrase are stranger still, for they describe an institution which does not exist and never has existed. The whole point of the reforms of the 2007 Act, to which immigration appeals were made subject in 2010, is that instead of there being individual specialist Tribunals with their own individual arrangements for appeals to a further Tribunal, there is a First-tier Tribunal and an Upper Tribunal, each of general jurisdiction but divided into Chambers. The Chambers are Chambers of each Tribunal: the Tribunals are not Tribunals of each Chamber. The phrase is not merely technically wrong: it indicates a complete misunderstanding of the system
26. Secondly, although the draftsman goes to such lengths to define what he means by "a hearing" (a matter on which we make further observations below), he defines it by reference to the activities of "one or more Immigration Judges". Immigration Judges comprised some (but by no means all) of the judiciary of the Asylum and Immigration Tribunal. The title is still used by courtesy, for those who held such office in the Asylum and Immigration Tribunal, but it now has no statutory basis. On 15th February 2010 all holders of the title of Immigration Judge became, instead, holders of the title of "Judge of the First-tier Tribunal". The draftsman appears to have been unaware of this development. The Explanatory Note refers to "appeals remitted to the First-tier Tribunal from the Upper Tier of the Tribunal". So far as we are aware, there has never been an "Upper Tier" of any Tribunal. There is, however, an Upper Tribunal."
In paragraph 27 the Upper Tribunal said that the insistence in article 3 of the Order on there having been a "hearing" (as defined) in order to enable the transitional provision to have effect was "distinctly odd". Whereas a case management review hearing would count as a hearing, case management directions would not; practice between hearing centres varied as to whether case management matters were dealt with at a hearing or on the papers; two appeals instituted on the same day prior to 23rd May might have different hearing dates, one before and one after the 23rd May simply because different hearing centres have different waiting times (paragraph 28); many cases are determined by the Tribunal on the papers without a hearing (paragraph 29). If an appeal was determined by the Tribunal on the papers prior to 23rd May, and permission to appeal to the Upper Tribunal was granted on the ground that the Tribunal had failed to take new evidence into account, the hearing before the Upper Tribunal would be the first hearing of the appeal, so the transitional provisions would not apply, and the Upper Tribunal would not be allowed to consider the new evidence which the Tribunal had wrongly failed to consider. The position would be different if precisely the same legal error had been made by the Tribunal on the same day when determining the same appeal at a hearing, the transitional provisions would apply and the Upper Tribunal could consider the new evidence (paragraphs 30-32).
The Upper Tribunal's conclusion that "These results are simply bizarre" caused it to pay particular attention to the wording of the order to see if there was some way by which they could be avoided (paragraph 33). In paragraphs 35 and 36 the Upper Tribunal concluded:
"35. As we have indicated, the only transitional provision is the exception for cases in which there has been a hearing prior to 23 May 2011. As we have also observed, there is no such thing as the "First-tier Tribunal of the Immigration and Asylum Chamber". It follows that there is no case in which the transitional provision in article 3 of the Order could apply.
36. That means, simply, that in effect article 2 of the Order stands by itself. It brings s19 of the 2007 Act into force on 23 May 2011. In interpreting that provision, we need to decide the extent to which it applies to appeals pending on that date, there being no transitional provisions relating to any events that could actually happen."
The Upper Tribunal then considered the issue of retrospectivity. In paragraphs 37-39 it said:
"37. The general rule is that a statute (or statutory instrument) does not have retrospective effect unless either it relates to procedure only, or the retrospective effect is clearly intended. The classic description or definition in Craies on Statute Law (6th edition, p386) is that a statute is retrospective if it "takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new disability in respect to transactions or considerations already past". There can be little doubt that the change in the law introduced by the Commencement Order imposes a disability in respect to transactions already past, where, before commencement, an applicant has made, and paid for, his application.
38. The retrospective effect is clearly intended, but, for the reasons we have given, it is very imperfectly achieved. In our judgment it is clearly right that the Order should be applied retrospectively only insofar as clearly specified. If authority for that is required, it can be found in Re "Wonderland" Cleethorpes  AC 58, 71-2. In the circumstances of the present case it receives support from the principle that a statute should not be given an interpretation that will cause real injustice, if that can be avoided: Waugh v Middleton (1853) 8 Ex 352; and see, for example West Midland Baptist (Trust) Association Inc v Birmingham City Corporation  2 QB 188. 210.
39. On its face, s19 of the 2007 Act introduces changes that relate to procedure. But we need to consider their effect rather more widely. As few have said, the previous regime had the effect that in order to meet the requirements of the Immigration Rules, an application could remedy defects in his application by evidence produced on appeal. We do not think that it is a distortion of language to regard an applicant's ability to do so as a substantive right in relation to the application process, rather than as merely a matter relating to the procedure on appeal. Certainly the withdrawal of the ability to supplement defects in this way has an instant effect on the substantive rights of applicants whose appeals are pending: many of them would previously have been able readily to show that they had met the requirements of the rules, whereas, after the change, the fact that they did meet the requirements of the rules at the date of their application becomes irrelevant."
Having referred to the inequity between those appellants whose appeals were determined before and after 23rd May 2011, even though they had appealed on the same day prior to 23rd May, and to the fact that the unimplemented section 85A had been amended by the Tribunals Courts and Enforcement Act 2007 by the addition of sub-section (5) which provides for amendments to be made to the Tribunal Procedure Rules, the Upper Tribunal concluded in paragraph 41:
"41. For these reasons it appears to us that Article 2 of the Commencement Order should be construed as affecting substantive rights not merely procedure, and that Article 3 should be interpreted narrowly. Article 2 should not be interpreted retrospectively save in relation to any cases that might be found to fall within the words of Article 3. The result is that, in order to avoid any other retrospective effect, Article 2 is to be interpreted as having effect only where the appellant's application to the Secretary of State was made on or after 23 May 2011."
If Shahzad is correctly decided these appeals must be allowed. In each case the application to the Secretary of State was made before the 23rd May 2011. The Respondent has applied for permission to appeal against Shahzad. Mr. Swift submitted that it was not correctly decided.
The Grounds of Appeal
Mr. Malik's submissions on behalf of Mr. Alam were adopted by Mr. Kannangara on behalf of Mr. Anwar, and by Miss Ammal who we permitted to speak on behalf of Miss Eghan. Mr. Malik advanced five grounds of appeal. In summary, those five grounds were as follows:
Although Mr. Malik did not adopt the entirety of the Upper Tribunal's reasoning in Shahzad (see below, paragraph 28), he submitted that it was correctly decided. Properly construed section 85A had no application in relation to an appeal to the Tribunal in respect of a refusal of an application which had been made to the Secretary of State before 23rd May 2011, alternatively it had no application to an appeal which had been made to the Tribunal before 23rd May 2011.
Properly construed section 85A applied only to appeals to the Tribunal, and did not apply to appeals from the Tribunal to the Upper Tribunal.
The "application" referred to in section 85A (4)(a) included "the additional grounds for the application" submitted by an appellant in response to a notice served by the Secretary of State under section 120 of the 2002 Act.
The common law duty of fairness imposed an obligation on the Secretary of State to contact an applicant in the position of Mr. Alam when specified documents were missing from his application, and to give him an opportunity to rectify the omission, before reaching a decision on his application.
The Upper Tribunal erred in dismissing Mr. Alam's appeal under article 8 because it failed to recognise that his was not a "near miss", but a "no miss" case under the Rules.
In addition to adopting these submissions, Mr. Kannangara contended that the Upper Tribunal erred in dismissing Mr. Anwar's appeal because:
Mr. Anwar was entitled to rely on document F3 before the Tribunal, even if it had not accompanied his application. He was entitled to adduce it under paragraph (c) of subsection 85A(4) in order to prove that the CAS was valid.
In view of UKBA's letter dated 5th April 2011 to Mr. Anwar, it was unfair for the Secretary of State to refuse Mr. Anwar's application without notifying him that the application was not valid because all necessary documents had not been submitted, so that he could remedy any omission before a decision was reached on his application.
Miss Ammal's additional submissions on behalf of Miss Eghan were as follows:
The date of the Tribunal hearing was an administrative decision. Miss Eghan had received a Notice of Hearing before the 23rd May 2011 which required her to submit all of the documents on which she relied (which included the bank statements) not later than 5 days before the hearing date. In these circumstances it was unfair, and a retrospective alteration of Miss Eghan's rights under the appeal process, to alter the law so that the Tribunal was not entitled to consider the documents which it had ordered Miss. Eghan to produce. The Notice of Hearing should be treated as the start of the hearing for the purpose of article 3 of the order.
In paragraph 42 of its determination the Upper Tribunal said:
"We appreciate that our interpretation of the Commencement Order is bold and, in addition, we have not reached it on the basis of the submissions Mr. Malik made to us. Anyone seeking to defend any other interpretation, however, will have to explain why any of the results set out in paragraphs 27 to 33 above either were intended or are desirable."
The references in article 3 of the Order to the "First-tier Tribunal of the Immigration and Asylum Chamber", rather than the "First-tier Tribunal (Immigration and Asylum Chamber)" are unfortunate, but I do not accept that they indicate "a complete misunderstanding of the system" (paragraph 25), or that the misdescription is such that "there is no case in which the transitional provision in article 3 of the Order could apply" (paragraph 35). Mr. Malik did not submit that the misdescription had such an effect, and I accept Mr. Swift's submission that if the text of an enactment has been garbled by the inclusion of wrong words, the duty of the Court is to rectify the text so as to give it the intended grammatical meaning: see Bennion "Statutory Interpretation" (5th Edn., 2008) Section 287, at page 878. The draftsman's intention is clear, and the substitution of "First-tier Tribunal (Immigration and Asylum Chamber)" for "First-tier Tribunal of the Immigration and Asylum Chamber" is a minor rectification which is plainly justified in order to give article 3 its intended meaning. Although the title "Immigration Judge" no longer has any statutory basis (paragraph 28), in May 2011 when the Order was made it was, and still is, in common use as a convenient description of a judge sitting in the Immigration and Asylum Chamber of the First-tier Tribunal. No doubt article 3 should have been better drafted, but its meaning is clear.
As a matter of first impression, a transitional provision that excludes those appeals where a hearing has taken place and which are still pending from a change in the law as to the evidence which may be adduced on an appeal is not unreasonable: the hearing will have been conducted on the "old" evidential basis. If a hearing has yet to take place, it can be conducted on the "new" evidential basis. If the hearing was a case management review, the parties will have been directed to prepare for the substantive hearing of the appeal on the "old" evidential basis. I accept that, on closer examination, adopting the taking place of a hearing as the trigger mechanism for the operation of the transitional provision in article 3 will produce a number of anomalies and inconsistencies as described in paragraphs 27-32 of the Upper Tribunal's determination. Those results may not have been intended and they are not desirable, but I do not accept that they are so "bizarre" that article 3 must be disregarded. Neither the minor infelicities in drafting nor the, admittedly odd, consequences of giving effect to article 3 in certain circumstances justify the Upper Tribunal's conclusion (paragraph 36) that "in effect article 2 of the Order stands by itself."
When conferring the general power in section 59(2) of the 2007 Act to bring the remaining provisions of the Act, other than section 17, into effect by order, Parliament must have appreciated that, when it was brought into force, section 19 would, in the absence of any transitional provision, be bound to have a retrospective effect, in that it would place a restriction upon the evidence that an appellant could adduce on an appeal against an immigration decision that would, by definition, have been taken by the Respondent at an earlier stage. Notwithstanding the fact that section 19 was, in Mr. Swift's words, a "backward looking" provision in this respect, Parliament conferred a broad discretion upon the Secretary of State as to whether the order bringing it into force should include any, and if so what, transitional provision: see section 59(3)(c).
Against this background, it is plain that article 2 was intended to have a retrospective effect in the sense that, as from 23rd May 2011 it would restrict the evidence which could be adduced on any appeal, including a pending appeal, against an earlier immigration decision, other than those appeals where a hearing (including a case management review hearing) had taken place before 23rd May 2011. As the Upper Tribunal observed (paragraph 38) this retrospective effect is clearly intended. Was the Upper Tribunal entitled not to give effect to that clear intention on the basis that article 2 should be construed so as to avoid a "real injustice"?
The Upper Tribunal recognised that, on its face, section 19 of the 2007 Act introduces changes that relate to procedure (paragraph 39), but after considering the effect of the changes rather more widely it concluded that article 2 should be construed as affecting substantive rights and not merely procedure (paragraph 41). In Wilson v First County Trust Ltd (No 2)  UKHL 40,  1 AC 816, Lord Rodger, having referred to the presumption that legislation does not affect pending proceedings (paragraph 198), drew attention to the distinction between statutes which change substantive law and statutes which alter matters of "pure procedure":
..As can be seen from the statement of Wright J in In re Athlumney  2 QB 547, 552 which I quoted above, changes in matters of pure procedure have been treated differently. Wilde B stated the position most starkly in Wright v Hale (1860) 6 H & N 227, 232: "where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act." The justification for treating matters of pure procedure differently was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62, 69: "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done."
Having said that it had not always proved easy to apply the distinction between matters of substance and matters of pure procedure (paragraph 200), he suggested in paragraph 201 that, applying Lord Mustill's approach in L'Office Cherifen v Yamashita-Shinnihon Steamship Co. Ltd.  1 AC 486 at pp 527G-528C,
. an appropriate test might be formulated along these lines: would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be "so unfair" that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions."
Applying this test, I do not consider that the consequences of applying article 2, subject to the transitional provision in article 3 (see above), to all appeals as from the 23rd May 2011 are "so unfair" that the article must be interpreted as having effect only where the applicant's application to the Secretary of State was made on or after 23rd May 2011. Such a drastic re-writing of the Order is unnecessary in any event. The anomalies identified in paragraphs 27-32 of the Upper Tribunal's determination would be avoided by interpreting article 2 as though it had effect only where the appellant's appeal against the Secretary of State's immigration decision was made on or after the 23rd May 2011 (the fall-back position of both Mr. Swift and Mr. Malik), but that is not what article 2 says, and I am not persuaded that giving the article its plain and ordinary meaning would cause such unfairness as to compel the Court to adopt the parties' fall-back position.
It is true that bringing section 85A into force deprived applicants under the PBS of a "second bite at the cherry". However, the Immigration Rules, the Policy Guidance, and the prescribed application form all made it clear that submission of the specified documents with the application was mandatory: if the specified documents were not produced with the application it would be refused. While section 85(4) did give appellants an opportunity to remedy a failure to produce the specified documents, it is not suggested that these three applicants were thereby lulled into a false sense of security, and took less care when completing their application forms because section 85(4) was not then subject to the exceptions in section 85A. There is no suggestion that the appellants were even aware of the Tribunal's discretion to admit new evidence on an appeal under section 85(4), much less that they relied on it when making their applications; they simply made a mistake in completing their applications. While it is true that section 19 had lain dormant for many months after the 2007 Act had received the Royal Assent on 30th October 2007, any applicant for leave under the PBS who was so familiar with the appeal provisions in the 2002 Act that he relied on the opportunity to correct errors in his application on appeal under section 85(4) would also have been well aware of the fact that there was a risk that section 85A might be brought into force by order at any time, and there was no certainty as to what, if any, transitional provision might be made in the order bringing it into force. Mr. Malik referred to the draconian consequences of a failure to supply a specified document but that is an inherent feature of the PBS which puts a premium on predictability and certainty at the expense of discretion. In the context of appeals against decisions under the PBS, the broad discretion conferred upon the Tribunal by section 85(4) was an anomaly. Those who relied on its existence did so in the knowledge that after 30th October 2007 the anomaly might be ended at any time.
In his Skeleton Argument Mr. Malik submitted that an appeal was "heard" by the Tribunal for the purpose of article 3(2) of the Order when it was received by the Tribunal. He did not pursue this argument in his oral submissions, and in my judgment he was wise not to do so. As the Notice of Hearing in Miss Eghan's case demonstrates (see paragraph 7 above) the hearing (if there is one) before the Tribunal is a distinct stage of the appeal process. Lodging the Appeal Form with the Tribunal does not amount to a hearing.
In his oral submissions Mr. Malik relied on the Upper Tribunal's reasoning in Shahzad, although he accepted that the court could and should rectify the errors in article 3 of the Order to which the Upper Tribunal referred in paragraphs 25 and 26 of its judgment: see paragraph 28 above. In addition, he drew attention to subsection 59(4) of the 2007 Act which provides that an order commencing section 32 may apply that section in a retrospective manner to persons convicted before the passing of the Act. He submitted that the lack of a comparable provision in respect of an order commencing section 19 of the Act meant that an order could not be made under article 2 which brought section 19 into force in a retrospective manner.
In my judgment, the fact that subsection (4) enables an order commencing section 32 to include a particular form of transitional provision does not impliedly constrain the breadth of the discretion conferred by subsection 59 (2). The Order bringing section 19 into force on 23rd May 2011 was within the scope of the power conferred by section 59 (2). The Order was prospective, in that when made on 17th May 2011 it brought section 19 into effect at a future date, admittedly only a few days later on 23rd May 2011. Insofar as the new section 85A limits the evidence admissible on appeal it removes the opportunity for "a second bite at the cherry" in respect of earlier decisions to refuse applications under the PBS, but it does not retrospectively alter the basis upon which those applications were to be allowed or refused under the Immigration Rules. Insofar as it is helpful to distinguish between procedural and substantive rights (see paragraph 33 above) the "second bite at the cherry" was a procedural, not a substantive, right: the appeal to the Tribunal enabled a successful appellant to establish a substantive right. Parliament clearly intended section 85A to operate as from 23rd May 2011 (subject to article 3 of the order). While the Order results in some anomalies, for the reasons given in paragraphs 34 and 35 (above), they are not "so unfair" as to justify a departure from the plain words of the Order.
Mr. Malik submitted that the exceptions in section 85A related to appeals under section 82(1) of the 2002 Act. The right to appeal from the Tribunal to the Upper Tribunal was conferred by section 11(1) of the Tribunals, Courts and Enforcement Act 2007, so the Upper Tribunal's power to hear fresh evidence was not constrained by section 85A. This submission was considered by the Upper Tribunal in Shahzad as Issue D: see paragraph 14 of the Upper Tribunal's determination. The Upper Tribunal rejected the submission in paragraph 48 of its determination. On this issue, I agree with the Upper Tribunal.
The Upper Tribunal said that its conclusion that section 85A applied when the decision was remade by a judge of the Upper Tribunal was supported by the decision of this Court in LB (Jamaica) v Secretary of State for the Home Department  EWCA Civ 1420. The issue in that case was whether an appeal from the Upper Tribunal to the Court of Appeal was to be treated as abandoned under section 104 (4A) of the 2002 Act because, after the grant of permission to appeal, the Secretary of State had granted the appellant indefinite leave to remain in the UK. Subsection (4A) referred to "An appeal under section 82(1)
" Mr. Malik's submission that an appeal to the Court of Appeal was not an appeal under section 82(1) was not accepted by the Court. Moses LJ (with whom Baron J and Maurice Kay LJ agreed) said in paragraphs 12 and 13:
In my view, the reference in subsection (4A) to an appeal under section 82(1) has to be read with the identification of the period during which an appeal under section 82(1) remains pending as identified in (1) and (2) of section 104. The appeal remains alive throughout the period until it is finally determined or abandoned. Subsection (2) identifies that period during which it is not finally determined by specific reference to the period pending final determination of an appeal to the Court of Appeal: see section 104(2)(b).
13. In those circumstances it seems to me impossible to confirm the construction of what is meant by an appeal under section 82(1) to an appeal to the First Tier Tribunal without incorporating within it all those circumstances identified in the earlier part of the same section, namely an application for permission to the Court of Appeal that is awaiting determination or permission to appeal and the period up until final determination of that appeal."
In my judgment, this approach to the meaning of "an appeal under section 82(1)" applies with equal force to the provisions of section 85A.
This ground was raised by Mr. Malik as Issue C in Shahzad. The Upper Tribunal rejected the submission in paragraphs 45-47 of its determination. The interrelationship between the policy underlying the "one stop procedure" considered in AS (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1076,  1 WLR 385, and the policy underlying the PBS is far from clear. In AQ (Pakistan) v Secretary of State for the Home Department  EWCA Civ 833, I said that:
"41. In AS the Court was not concerned with decisions made by the Respondent under the "Points-based" system of determining applications for leave to remain. In such cases there is a "fixed historic time-line". The effective operation of a points based system requires the points to have been accumulated at the date of the Secretary of State's decision."
I accept Mr. Swift's submission that in this case it is unnecessary to explore the role of section 120 in appeals under the PBS because Mr. Alam's statement of additional grounds in response to the Secretary of State's section 120 notice in his Appeal Form (IAFT 1) to the Tribunal did not, in fact, put forward any additional grounds. It merely cross referred to the attached Grounds of Appeal against the refusal of the PBS application which said (inter alia) that the required bank statement had not been produced because "the Appellant did not know about the Rules
.He intended to provide the said bank statement before the hearing." If and insofar as the "additional" grounds raised in response to a section 120 notice are, in reality, merely a repetition of the grounds of appeal under section 84(1)(a) against the refusal of the PBS application they fall within section 85A.
As the Upper Tribunal pointed out when rejecting this submission (Issue E) in paragraph 49 of its determination in Shahzad, this ground of appeal is concerned with the fairness of the PBS, including section 85A, and not with the fairness of the provisions which brought section 85A into effect on 23rd May 2011. The PBS is a very detailed scheme, and, in order to secure predictability and consistency in a decision making process which has to consider a very large number of applications, it is highly prescriptive.
The Upper Tribunal's determination in Patel (revocation of sponsor licence fairness) India  UKUT 00211 (IAC) demonstrates that even in the context of such a statutory scheme the public law requirement of fairness (see paragraphs 13-15 of the Upper Tribunal's determination) must still be observed, and fairness may impose additional obligations on the Secretary of State as decision maker under the PBS. However, the obligation to give those applicants whose colleges had lost sponsorship status an opportunity to vary their application by giving them time to find a substitute college was imposed on the Secretary of State as a matter of fairness in circumstances where there had been a change of position of which the Secretary of State was aware, but the applicants were themselves not at fault in any way: they were "both innocent of any practice that led to the loss of the sponsorship status and ignorant of the fact of such loss of status", see paragraph 22 of the Upper Tribunal's determination in Patel.
In these three appeals there was no change of position after the applications were submitted, the appellants were simply at fault in not supplying the specified documents with their applications. I endorse the view expressed by the Upper Tribunal in Shahzad (paragraph 49) that there is no unfairness in the requirement in the PBS that an applicant must submit with his application all of the evidence necessary to demonstrate compliance with the rule under which he seeks leave. The Immigration Rules, the Policy Guidance and the prescribed application form all make it clear that the prescribed documents must be submitted with the application, and if they are not the application will be rejected. The price of securing consistency and predictability is a lack of flexibility that may well result in "hard" decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents. Imposing such an obligation would not only have significant resource implications, it would also extend the time taken by the decision making process, contrary to the policy underlying the introduction of the PBS.
Mr. Malik referred to the statement in Issue 7 of UK Border Agency News dated May 2011 that:
"UK Border Agency caseowners employ a measure of flexibility when considering PBS applications, for example requesting further documentation or clarification where appropriate. In addition a validation stage is being trialled whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected. These policies aim to provide excellent customer service and reduce the number of applications falling for rejection."
In its response to the 34th 37th Reports of the Public Accounts Committee, which had recommended that UKBA should "ensure that its staff take a consistent and proactive approach to correcting minor errors and omissions" in applications, the Government said:
"6.2 The Agency has already made changes to its evidential flexibility policy. Revised instructions have been circulated to ensure a consistent approach in decision making is adopted across all the case working units both in the UK and overseas. The revised arrangements mean that where minor omissions have been made and applicants have been asked to provide the information needed to determine their application, they will be given seven days to provide the information requested where this is necessary. This same evidential flexibility approach has also been introduced to sponsor licence applications.
6.3 In addition to the evidential flexibility arrangements, the Agency has introduced further measures to allow applicants applying in the UK to correct minor errors or omissions earlier in the application process. This approach was trialled on the Tier 1 (General) route in order to avoid rejection of applications prior to the closure of the route. The Agency plans to extend this approach across all temporary migration routes in 2011.
6.4 All applicants wishing to stay in the UK under the System are required to submit all relevant evidence in support of their application at the time the application is made. The Agency is committed to helping migrants and sponsors to get their application s right first time wherever possible. Over the next 12 months, the Agency will be reviewing and improving all guidance on offer to users of the System and will extend further the use of on-line forms to make the application process easier. As part of the on-line process, a check list will be produced to clarify the documentation the applicant must provide as part of their application. Additional call centre support for on-line applicants will also be offered."
UKBA choosing to make improvements to its decision making process as a matter of good administrative practice is one thing, the Court imposing a general legal duty to the same effect upon the Secretary of State is a very different matter. I am not persuaded that the statutory scheme is so unfair that the imposition of such a duty can be justified.
A similar submission was rejected by the Upper Tribunal in Shahzad: see Issue F, and paragraphs 50 and 51 of its determination. I agree with the Upper Tribunal that the argument is misconceived. Mr. Malik accepted that he could not rely on the proposition that there had been a "near miss" under the Rules in Mr. Alam's case: see paragraph 26 of Stanley Burnton LJ's judgment in Miah v Secretary of State for the Home department  EWCA Civ 261. His submission that Mr. Alam's was a "no miss" case ignores the fact that, under the PBS, one of the requirements of the rules is that the specified documents must be submitted with the application. Prior to the 23rd May 2011 a "miss" at the application stage because of a failure to submit the specified documents with the application could be converted into a "no miss" at the appeal stage, but as from 23rd May 2011 this is no longer possible because the Tribunal is not entitled to consider the documents that were not submitted with the application.
This ground is misconceived. Document F3 was not required in order to prove that the CAS was valid. There was no suggestion that Mr. Anwar's CAS was invalid. However, Appendix A to the Immigration Rules and the PBS Policy Guidance required Mr. Anwar to submit with his application, not merely a valid CAS (about which there was no issue), but also the qualification documents, which in his case included document F3, used by the college in assigning the CAS to him. Mr. Anwar was not entitled to adduce the missing document F3 under paragraph (c) of subsection 85A(4) on the basis that it was being adduced to prove that the CAS was valid.
There is some force in this submission. Although the Secretary of State was not under any general duty to notify applicants that specified documents were missing, and to give them an opportunity to remedy the omission (see Ground 4, paragraphs 44-47 above), Mr. Anwar was told in the letter dated 5th April 2011 from UKBA that if there was any problem with the validity of his application he would be informed, and advised as to the action he needed to take to make a valid application (paragraph 4 above).
Mr. Swift explained that the check as to the validity of applications was a very preliminary check to see whether there were obvious omissions: eg no fee paid, no photograph supplied, no signature on the Student Declaration at the end of the form. At this preliminary stage the documents supplied with the application would not be checked, and would be taken at face value. It was not every omission that went to the validity of an application. A failure to include specified documents with an application form would result in the rejection of the application on the merits because the necessary points would not be awarded to the applicant, but it would not mean that the application was invalid.
I appreciate that Mr. Anwar, if he had thought about the matter, might not have appreciated the distinction between an invalid application, which would not be considered unless the obvious defect was cured, and an application that was a valid application, but nevertheless fell to be rejected because, on examination, the applicant had failed to score that required number of points, eg. because he had failed to supply a specified document. However, the distinction is a real one. In a number of places the prescribed application form makes it clear that all questions in the relevant part of the form must be completed, and if they are not the application will be "invalid". If the relevant part of the form is completed the application is a valid application, even if, on examination, it is found that the completed answers are incorrect because, eg. all of the relevant qualification certificates are not provided.
In these circumstances the letter dated 5th April 2011 from UKBA could not reasonably have led Mr. Anwar to believe that his application form would be checked in detail so that he would be notified of any failure to provide specified documents and given an opportunity to rectify the omission before a decision was made. In fact, Mr. Anwar did not rely on the letter at the time. His case before both the Tribunal and the Upper Tribunal was that he had submitted document F3 with his application form. The Tribunal accepted his evidence on this point, the Upper Tribunal did not. I would reject this ground of appeal.
I accept that Miss Eghan was particularly unfortunate. If the hearing of her appeal had taken place on the 4th May 2011 in accordance with the original Notice of Hearing, the Tribunal would have been able to consider the bank statements that had not accompanied her application and her appeal would have been allowed. Because the hearing date was postponed to 25th May she was not able to rely on the bank statements and her appeal was dismissed by the Upper Tribunal. In these circumstances the Upper Tribunal's expression of regret when dismissing her appeal is readily understandable.
However, the original Notice of Hearing was not the commencement of a hearing for the purpose of article 3: it was a notice that a hearing would take place at a future date. The Notice told Miss Eghan to submit a bundle of all of the documents on which she proposed to rely at the hearing, but it did not suggest, either expressly or by implication, that all of those documents would be accepted by the Tribunal as admissible in evidence at the forthcoming hearing. The admissibility of the documents in Miss Eghan's bundle would be determined, not by the Notice of Hearing, but by the provisions of the 2002 Act in force at the date of the hearing.
The Order effectively deprived these appellants of a "second bite at the cherry", but it was not unlawful. I would hold that Shahzad was wrongly decided, and would dismiss all three appeals.
Lord Justice Moore-Bick:
Lord Justice Maurice Kay:
I also agree.
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