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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Olatunde v Secretary of State for the Home Department [2015] EWCA Civ 670 (01 July 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/670.html Cite as: [2015] EWCA Civ 670, [2015] WLR 4602, [2015] 1 WLR 4602, [2016] Imm AR 15, [2015] WLR(D) 294 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Wilson
IA/27993/2013
Deputy Upper Tribunal Judge Pickup
IA/16423/2014
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal, Civil Division)
LORD JUSTICE ELIAS
and
LORD JUSTICE McCOMBE
____________________
HANSON OLATUNDE![]() |
Appellant |
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| - and - |
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| SECRETARY of STATE for the HOME DEPARTMENT |
Respondent |
____________________
Mr. Andrew Sharland (instructed by the Government Legal Department) for the respondent
Hearing date : 11th June 2015
____________________
Crown Copyright ©
Lord Justice Moore-Bick :
Olatunde
against the dismissal by the Upper Tribunal of his appeal against the decision of the First-tier Tribunal which had itself dismissed his appeal against the decision of the Secretary of State refusing his application for leave to remain as a Tier 1 (General) Migrant under the Points Based System. The second is an application by Mrs. Samjhana Khoteja for permission to appeal against the decision of the Upper Tribunal dismissing her appeal against the decision of the First-tier Tribunal which had dismissed her appeal against the refusal by the Secretary of State to grant her, her business partner and their respective husbands permission to remain as Tier 1 (Entrepreneur) Migrants under the Points Based System.
The statutory framework
"(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
(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"."
HansonOlatunde
Olatunde
applied for leave to remain as a Tier 1 (General) Migrant under paragraph 245CA of the Immigration Rules, under which he was required to demonstrate a certain minimum level of income during a prescribed period in order to be awarded the necessary minimum number of points. The rules required him to submit evidence of his income in a particular form and, since he failed to submit the necessary documents with his application, he was not awarded the number of points he needed. When refusing Mr.
Olatunde
's application the Secretary of State gave notice under section 47 of the 2006 Act of her intention to remove him when his leave to remain expired.
Olatunde
appealed against the refusal of his application to the First-tier Tribunal and by the time his appeal came on for hearing he had obtained the evidence of his earnings which had previously been lacking. Not surprisingly, he wished to rely on that evidence before the tribunal in support of his appeal. He did not formally appeal against the Secretary of State's notice of her intention to remove him, presumably because he assumed – no doubt correctly – that, if he succeeded on his appeal and obtained leave to remain, it would cease to be of any relevance.
Olatunde
's appeal on the grounds that the evidence he had supplied of his earnings did not meet the requirements of the Immigration Rules. He therefore applied for, and obtained, permission to appeal to the Upper Tribunal. He did not formally appeal against the notice of intention to remove him.
Olatunde
sought to rely in support of his appeal on the documents which he had obtained since the refusal of his application by the Secretary of State, to which, he submitted, the judge below had failed to give sufficient weight. However, Judge Wilson held that by virtue of section 85A (3) and (4) they were not admissible in evidence and therefore dismissed his appeal.
Mrs. Khoteja
The common issue – section 85A
Olatunde's appeal must be dismissed.
Paragraph 245DD of the Immigration Rules
Lord Justice Elias :
Lord Justice McCombe :