July 21, 2019

Court of Appeal takes a strict stance on adducing new evidence to the Upper Tribunal

Kabir v The Secretary of State for the Home Department [2019] EWCA Civ 1162 (09 July 2019)

On the topic of fresh evidence (in the context of deception, false documents, bank statements) the Court of Appeal has held that the Upper Tribunal was right to refuse to admit fresh evidence in an immigration appeal where a Tier 1 (Entrepreneur) from Bangladesh had failed to follow the procedure in rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Underhill, McCombe and Haddon-Cave LJJ judged that the Upper Tribunal had been entitled to take into account the principle in Ladd v Marshall [1954] EWCA Civ 1 that the new evidence could, with reasonable diligence, have been made available to the First-tier Tribunal on the initial appeal. Delivering the main judgment, McCombe LJ held that the present case was not one where the new material inevitably resolved the factual issue in the favour of the appellant. Furthermore, it was not a case of clear misapprehension of established and relevant fact. McCombe LJ explained that the principal issue before the court was whether the Upper Tribunal was wrong to refuse to admit on the appeal to it certain fresh evidence which had not been before the First-tier Tribunal. The underlying issue in the case before both tiers of the tribunal related to the genuineness of certain banking documents submitted by Mr Md. Iqbal Kabir with his application for leave to remain. Mr Kabir arrived in the UK as a student in 2009 and extended his stay on that basis until the end of 2012.

Prior to the expiry of his leave he applied for further leave remain in the UK as a Tier 1 (Entrepreneur) and used a letter and bank statement, appearing to have been issued by Brac Bank Limited concerning an account in the name of AKM Monirul Hoque, with a closing balance of 3,05,73,219.10, claimed to be greater than the £200,000 required for an applicant to be granted leave. Accompanying this was a supporting statement from the account holder that he was willing to make this sum available equally to Mr Kabir and his intending business partner, Mr Mohammed Sayed, for the purposes of their planned restaurant business. It was only after two years in February 2015 that the Home Office began inquiries regarding the genuineness of the documents. As a result the Associate Product Manager of Brac Bank responded that the certificates and statements were not issued by the bank. Thus, the decision-maker refused the application under paragraph 322(1A) of the Immigration Rules because false documents had been submitted. Mr Sayed also received a decision along these lines.

First-tier Tribunal

In their appeal to the First-tier Tribunal, Mr Kabir and Mr Sayed provided a letter from a branch manager that the documents submitted with the application were authentic. The letter was dated 11 May 2016. The First-tier Tribunal adjourned the appeal to permit the Home Office to verify the new letter. That process resulted in a Document Verification Report (“DVR”) from the High Commission in Dhaka stating that the earlier letter was not genuine.

The Presenting Officers Unit sent the DVR to Mr Kabir’s former solicitors, but the person concerned failed to take timely notice of it. Six weeks later, when the scheduled for hearing again, it came to the attention of the solicitors who asked for an adjournment to obtain further evidence. But the request was refused and the First-tier Tribunal held that the decision-maker had been justified in refusing the application for further leave to remain. The judge decided that the decision-maker had been justified in refusing the application for leave to remain in the UK, relying upon paragraph 322(1A) of the rules. The judge also rejected the two appellants’ claims based upon article 8 of the ECHR but there was no finding that the assertion in the refusal letter about the use of deception was correct.

Upper Tribunal

Mr Kabir appealed to the Upper Tribunal on the basis that the First-tier Tribunal had been wrong to refuse the adjournment to allow him to respond to the DVR. The Upper Tribunal decided that there was no basis for criticising the First-tier Tribunal refusal to adjourn. Mr Kabir’s application for permission to appeal to the Upper Tribunal, which was granted by the First-tier Tribunal, included new evidence, said to have been obtained from the bank, namely (a) a letter dated 13 November 2016 from the manager of the Natun Bazar branch of the Bank, i.e. the same branch from which the letter of 11 May 2016 and the original documents from 2012 were said to have originated, (b) the manager’s business card, (c) a further declaration from Mr Hoque, the account holder, and (d) documentation tracking the delivery of the documents from Bangladesh.

The Upper Tribunal dismissed Mr Kabir’s appeal. It held that there was no basis for criticising the First-tier Tribunal’s refusal to adjourn. It also refused to admit the new evidence, partly on the basis that notice of the desire to adduce the new evidence had not been given in proper form and the judge opined:

9. Admitting this evidence could lead to the hearing descending into a non-fathomable realm of allegation and rebuttal. The fact is that the Secretary of State, by officers of the High Commission, tried to examine the evidence, took a view, disclosed it to the appellants and the appellants did not take advantage of the opportunity to get their evidence together before the First-tier Tribunal.

The Upper Tribunal refused permission to appeal. Aggrieved, Mr Kabir argued that he served proper notice to include new evidence with the Upper Tribunal and while granting permission Longmore LJ took the view that “it is arguable that, once the further evidence sought to be adduced in response to the DVR was before the Upper Tribunal (even if only informally), it ought to have been considered rather than being dismissed because it could lead to the hearing descending into a non-fathomable realm of allegation and rebuttal.” He opined that on the face of it, the letter dated 13 November 2016 from the manager of the bank’s Natun Bazar branch “carries some conviction.”

The Court of Appeal

Dismissing the appeal Underhill, McCombe and Haddon-Cave LJJ decided that the view of the Upper Tribunal had been correct and it had been entitled to take into account the principle in Ladd v Marshall.

In addition to the decision of the Upper Tribunal, the Home Office submitted that (a) the fresh evidence did not meet the requirements for being admitted on an appeal, either pursuant to the principles in Ladd v Marshall or those appearing in E & R [2004] EWCA Civ 49, (b) the fresh evidence application did not comply with the procedure required by Rule 15(2A) of the 2008 Rules, and (c) even if the new evidence relied upon had been admitted, on the findings made by the First-tier Tribunal, the judge would nevertheless have dismissed the appeal.

(i) Procedure for adducing new evidence

McCombe LJ said that Mr Kabir had failed to comply with the correct procedure to adduce new evidence and this was very obvious from the terms of rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 which requires that a party wishing to adduce new evidence in an appeal to the Upper Tribunal “must send or deliver a notice to the [UT] and any other party” setting out the nature of the evidence and explaining why it was not submitted to the First-tier Tribunal. The proper practice is to use the standard application notice (Form T484) for this purpose and in the present case the solicitors in question failed to issue any such application notice and simply stated the desire to adduce the new evidence in the grounds of appeal by appending copies of the new documents to those grounds. The use of form T484 entails a £255 fee.

(ii) Refusal of adjournment

McCombe LJ found it “impossible” criticise the First-tier Tribunal’s decision to refuse the request for a second adjournment on the material then available to it. There had been one adjournment already and Mr Kabir’s solicitors squandered the opportunity to seek out further evidence in the period that was available to them before the date of the appeal hearing. The court opined that:

32. … It was well within the proper exercise of the First-tier Tribunal’s wide discretion to grant or refuse adjournments to refuse the application in this case. There was no error of law in that decision.

(iii) Refusal to admit fresh evidence

McCombe LJ proceeded to explain that the Upper Tribunal also enjoyed a wide discretion on this issue. The present case was not the type of case where the fresh material inevitably resolved the factual issue in Mr Kabir’s favour.

The new evidence presented similar factual questions to the initial evidence and it was neither a case of clear misapprehension of established and relevant fact nor was it in keeping with ML (Nigeria) [2013] EWCA Civ 844 where it was held a material error of fact, material to a tribunal’s conclusion, will also constitute an error of law (ML involved a series of “egregious errors”). McCombe LJ therefore held that the Upper Tribunal had been entitled to refuse the application in view of the failure to follow the correct procedure and to take into account the Ladd v Marshall principle that this new evidence could, with reasonable diligence, have been made available to the First-tier Tribunal on the initial appeal. He said:

33. … I discern no error of law, therefore, on the Upper Tribunal’s part in the decision that the judge made in declining to admit the fresh evidence.

(iv) Deception

The court also noted that the Home Office did not dispute that neither tier of the tribunal had endorsed the decision-maker’s assertion that Mr Kabir had behaved deceptively when making his application for leave to remain.

It was open to him on any future entry clearance application to contest any reliance upon alleged deception in answer to a refusal of leave to enter, and it would be incumbent upon the decision-maker fairly to assess afresh the evidence presented on the issue.

Comment

The result in this case is a reminder that a failure to follow the correct procedure is fatal for applicants wishing to adduce further evidence in the Upper Tribunal. Equally, the fact that Mr Kabir’s solicitors sought a second adjournment on the day of hearing did not help him either. Mr Kabir was lengthily left in limbo for a period of 6.5 years (2013-2019) while his case was ongoing and the fact that the Home Office dithered on his application for two years prior to taking any action in his case is a testament to its inefficiency and continuing failures in upholding service standards for charged immigration applications such as those in the former Tier 1 (Entrepreneur) category. But of course the failure to properly follow the procedural rules ultimately appears to have been Mr Kabir’s undoing in this appeal and those hoping to avert a similar fate should take on board the decision of the Court of Appeal in Mr Kabir’s case, which is very strict in its nature. We can only hope that the same degree of strictness will be applied to the Home Office if it is the appellant in the Upper Tribunal seeking to adduce new evidence.

Notably, Statement of Changes HC 1919 overhauled the points based system and the Tier 1 (Entrepreneur) and Tier 1 (Graduate Entrepreneur) categories have been replaced by the new Innovator and Start-up categories. But with the UK economy in jitters because of the prospects of a no-deal Brexit, as shown by the Office of Budget Responsibility’s forecast that the UK economy would contract by two per cent in the event of a no-deal Brexit, it is very difficult to see why someone would wish to come to the UK and take risks with their money in very testing economic times. With high levels of political volatility and economic unpredictability, and given that the Home Office loves to short-change migrants their full immigration rights even after they have satisfied the relevant requirements, it is hard to see how someone such as Mr Kabir would wish to waste further energy, time and money by applying for entry clearance to go round the whirligig one more time.

July 2, 2019

UK Visas and Immigration’s (UKVI) New services

1 July 2019

Dear colleague,

We are writing to update you on UK Visas and Immigration’s (UKVI) front end services for UK customers. We’d like to inform you of Sopra Steria’s plans to introduce assisted scanning charges at their core service points.

As you will already be aware, the UK Visa and Citizenship Application Service (UKVCAS) run by Sopra Steria, was launched in November 2018. UKVCAS currently provides six core service points, where free appointments are available to customers during core hours (10:00-16:00), with payable slots available outside of these hours. Demand is currently very high for free appointments and we appreciate your patience whilst we work closely with Sopra Steria to ensure that the capacity for free appointments is maximised.

In additional to the six core sites, there are 50 enhanced service points that customers can use for a fee, plus a premium lounge offering superior comfort and privacy.

Since the launch of UKVCAS, customers visiting a core service point have been able to conveniently self-upload supporting documentation before they visit the service point. They have also had access to the assisted scanning service offered by Sopra Steria free of charge.

From 22 July, customers who book an appointment at one of the 6 core sites who do not wish to use the self-upload function may utilise the assisted scanning service but at a cost of £45. This is a flat rate, regardless of the number of documents to be scanned and must be paid before the customer attends their appointment at the core service point. The self-upload option remains free to customers and recent changes to this service will allow customers to preview their documents before uploading to their account. The fee for document scanning is in addition to the appointment booking charge if a customer choses an out of hours appointment.

If a customer chooses not to self-upload their supporting evidence ahead of the visit to a core service point, the £45 charge must be paid before they attend their appointment. If a customer has not made a payment prior to their appointment they risk being turned away and having to rebook their appointment.

The premium lounge and enhanced service points continue to offer document scanning during the appointment as part of the overall service. This £45 fee is only for those wishing to use the assisted scanning service at one of the 6 core sites.

For any further information or if you have any questions, please contact Sopra Steria directly. In the meantime, we hope this clarifies Sopra Steria’s plans to introduce assisted scanning charges at their core service points.

Regards,
UK Visas and Immigration

May 28, 2019

UK Immigration and Brexit: 10 questions to ask

So, is the Brexit really coming soon, woudl it really to happen on 31st October 2019? Or the UK can still leave on 1 July with a deal?
Hopefully not! But be ready,as some essential changes with regard to the rights of EEA nationals and their family members could or will happen!

What is the legal position?

As things stand, the UK’s departure date from the EU has been extended to 31 October 2019. Although the political landscape remains uncertain, we set out 10 key questions which should provide some legal certainty and direction, and simplify the jargon as much as possible.

1. What rights do I have as an EU national in the UK at present? Until the UK’s date of departure from the EU, all EU/EEA nationals will continue to benefit from freedom of movement. The Government, however, is encouraging all EU nationals to register under its EU Settlement Scheme (“the scheme”) now.

2. What is the EU Settlement Scheme? How do I apply for the Settlement Scheme and do I need an Android device?

The scheme has been introduced by the Government to enable EU nationals to register their status in the UK. Those EU nationals who have resided in the UK for five years or more will be granted ‘Settled Status’ i.e. the right to reside permanently in the UK. Those EU nationals who have resided in the UK for less than five years will be granted ‘Pre-Settled Status’. This will be valid for five years and will enable individuals to apply for Settled Status once they have completed five years of residence in the UK.

Applicants must apply to the Settlement Scheme online. If you have access to an Android mobile phone (it can be yours or you can borrow one to make the application), you will be able to scan your passport using the Android device. If you do not have access to an Android device, you can either post your ID document to the Home Office or attend one of the ‘ID Document Scanner Locations’, (see here) where you can scan your passport.

It is free to apply under the scheme. The Government has said that it will consider applications with a view to approving them, rather than refusing them.

3. Can I become a British citizen? If you hold Indefinite Leave to Remain, Permanent Residence or Settled Status, or are eligible for these, you may also be eligible to apply for British citizenship.

If you wish to obtain British citizenship, you should seek legal advice on whether you are eligible and what options are available to you.

4. Do I need to be sponsored by a UK employer to work here? EEU/EEA nationals will not need to be sponsored by their employer and can pursue employment opportunities here in their own right, regardless of whether the UK leaves the EU with a deal or without a deal. However different legal provisions may apply in a deal or a no-deal scenario.

5. What do I need to think about and do, as an employer of EU nationals in the UK? What are my legal obligations now and when the UK leaves the EU? Should I actively support staff through this process?

In legal terms as an employer of EU nationals you are not required to do anything at present. However, it would be good practice to provide employees with information regarding the Settlement Scheme and how to apply under it. Right to work checks should be carried out normally.

Workforce planning should be conducted to cover all eventualities. It would be prudent to introduce a policy on what your business would do, especially in case of a no-deal Brexit and taking account of its effects on bringing new members of your workforce/new employees to the UK from the EU. You should also update the nationality and immigration status details of your employees so that you have up to date records. Active management now will mean not only that your business will be well prepared when the scheme closes, but your business will also be able to adapt should there be any unexpected developments.

Understandably the current uncertainty is a cause of concern and anxiety to all EU nationals. Although these individuals can also apply under the scheme, it would be helpful to have a policy in place on how your business would support family members.

You should also consider whether to send internal updates on Brexit so that staff are up to date and feel reassured. Although the soundbites might sound confusing, in reality there are several options available. From our experience clear communication with staff will provide reassurance.

6. When and how will non-EU nationals be affected by changes to the UK immigration system? Non-EU nationals at present remain unaffected.

The Government has published its White Paper for a post-Brexit single immigration system due to come into effect from 1 January 2021. Please see here for a summary of these changes.

These proposals should in theory make it easier for businesses to hire and sponsor skilled workers from outside the UK. However, it should be noted that these are proposals set out by the Government and are subject to changes after debate and consideration in Parliament.

7. What if there is a further extension beyond 31 October 2019? Until the UK’s date of departure from the EU, all EU/EEA nationals will continue to benefit from freedom of movement. It is however worth noting that although freedom of movement would continue to apply, the end of the transition period after (if) the UK leaves with a deal remains 31 December 2020.

8. What happens if the UK leaves without a deal? If the UK leaves the EU without a deal, then an individual will need to have been living in the UK before the exit date and will have until 31 December 2020 to apply under the Settlement Scheme.

If an individual arrives after the UK leaves without a deal, then they will be able to visit the UK for up to three months for work or study. They will however need to apply for a three-year European Union Temporary Leave to Remain visa if they wish to remain in the UK beyond three months. Please see here for further details.

9. What happens if Article 50 is revoked? If the UK decided to revoke its notification under Article 50 of the Lisbon Treaty, then the UK will remain a member of the EU. The two-year exit process will end. The UK will have to serve another notice under Article 50 of the Treaty for a subsequent two-year exit process to restart.

10. What happens next? Although it is unlikely that the UK will leave the EU without a deal given that Parliament has voted against it, please see below for key dates and how they have an impact on the Brexit process.

Potential change in withdrawal date If the UK and the EU ratify the Withdrawal Agreement at any time before 31 October, then the withdrawal will take place on the first day of the following month.

Brexit key dates

23 May UK takes part in EU elections.

Early June

A vote in Parliament is expected in early June. As we explained above, if for example the Withdrawal Agreement is ratified at any time in June, then the UK can still leave on 1 July with a deal.

New EU Commission/next five-year political cycle in Brussels begins on 1 November 2019.

20 – 21 June Brussels EU Summit where leaders will take stock of Brexit Progress.

If the Withdrawal Agreement is ratified in June, the UK can leave on 1 July. Although the UK will have taken part in EU elections, the 5-year political cycle in Brussels does not begin until 1 November.

August and September

f the UK and the EU ratify the treaty at any time before 31 October, then the withdrawal will take place on the first day of the following month, i.e. on 1 September or 1 October.

UK party conference season is between August and September. If there is a change in leadership, it might be that they are in place by the time Conservative party conference starts on 29 September.

17 – 18 October, Brussels

EU Summit. If the UK has not left the EU by this date and if a deal is not in place, this will be the crucial summit. If there is a change in leadership, this might mean a change in direction.

31 October

This is the new Brexit date if the UK and EU do not reach a deal. EU insisting that by this point the UK must choose to either ratify the exit, opt for a no-deal or cancel departure. However further delay cannot be excluded.

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