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The recent ground-breaking decision of the Upper Tribunal of the Immigration and Asylum Chamber in Naved (Student – fairness – notice of points)  UKUT 14 (IAC) has confirmed that the Tribunal considers itself to have the jurisdiction to allow immigration appeals on public law principles of general unfairness.
This comes a time when the Immigration Rules, policies and application forms are being constantly updated sometimes causing applicants justified confusion. These decisions are therefore very welcome as they promise to open the door for Tribunal Judges to right some of the wrongs that are done whenapplications are refused.
The case concerns a Tier 4 applicant who was refused leave to remain on maintenance grounds. He was not considered to have an “established presence” in the UK as he did not provide evidence to show that he completed his previous course of studies. The arguments concerned the issue of whether evidence of the Appellant’s evidence of having completed the course was admissible at the appeal and if not, whether it was unfair to refuse the application given that the application form did not require the appellant to provide proof of having completed the course.
Upper Tribunal Judge Freeman, sitting with Justice Blake, President of the Tribunal, concluded that they were bound by Section 84(1) of the Nationality Immigration and Asylum Act 2002 and so not able to admit new evidence but made the following comments in relation to the principle of unfairness:
In our judgment the problem arises not with the terms of the section, which is in any event binding on us as primary legislation, but with the conduct of the respondent in examining the application and refusing it in the way she did.Given that the respondent was (or should have been) aware of the consequences of s. 85A when she made the decision in this case, the respondent is under a common law duty to act fairly in deciding immigration claims properly made to her. A failure to act fairly is a failure to act in accordance with the law and a failure to make a decision in accordance with the law is a ground of appeal to the tribunal under s.84(1)(e) of the Nationality Immigration and Asylum Act 2002.
Two recent decisions of the Upper Tribunal are relevant: Patel (revocation of sponsor licence – fairness) India  UKUT 211 (IAC) and Thakur (PBS decision – ‘common law fairness’) Bangladesh  UKUT 151 (IAC). Both dealt with the problem referred to in the long title of Patel, where a student’s sponsoring college has its licence revoked between the student’s application, and an adverse decision on it, based on the revocation which the student could have known nothing about.
The Court of Appeal has accordingly confirmed our appellate jurisdiction to conclude that a particular decision is unfair, and so not in accordance with the law. Applying that to the circumstances of the present case, the decision is not in accordance with the law, and accordingly a lawful decision has yet to be made, because the Home Office never put the appellant on notice that such evidence would be required, or gave him any opportunity to answer the result of their inquiries with his college. There was nothing at all in the application form to show that the appellant needed to include documentary evidence of his right to ‘established presence’; and no chance of his producing any evidence to contradict the result of the inquiries, only revealed in the decision itself. (paragraphs 15-19)
The Tribunal then went on to allow the appeal and noted that they expected the Appellant to be granted leave to remain as he did clearlyhave an “established presence”.
It remains to be seen how far and in what circumstances the Tribunal will be willing to apply the principle of unfairness. There may bemany cases where an application form does not explicitly ask for a document. It may be arguable that it could also be applied where a form or policy guidance document is unclear or confusing and has reasonably led an applicant to make a mistake or to neglect to send a document.
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