Yesterday, Damian Green announced via a written ministerial statement that section 19 of the UK Borders Act 2007 will come into force from 23 May 2011. Section 19 of the 2007 Act adds section 85A to the Nationality, Immigration and Asylum Act 2002, which limits the use of new evidence which may be submitted in points-based system appeals if the evidence was not previously submitted to an Entry Clearance Officer for consideration.
In his mistrial statement, Mr Green stated
It is not right that the taxpayer should foot the bill where this information should have been put forward as part of the original application or where a second application including all the necessary information (for which we will charge) is the most appropriate route to securing a grant of leave. Section 19 will restrict the type of new evidence that can be taken into account by the Tribunal. It will prevent circumvention of checks, helping restore public confidence in our immigration system and contribute to wider improvements to reduce the overall cost of the appeals system.
Taking into account what Mr Green said in his statement about the aims of section 19, I unfortunately cannot see how section 19 assists in any way to, firstly, save costs, and secondly, restore confidence in the immigration system by preventing the circumvention of checks.
Mr Green stated that
The Commencement Order will come into force on 23 May and will apply to all appeals heard for the first time against refusals of applications to remain in the UK under the Points Based System, regardless of the date that appeal was lodged. Appeals that have been part or fully-heard by the First-tier Tribunal (Immigration and Asylum Chamber) by this date will not be affected.
Consider then the case where a student may be eligible for legal aid funding on his appeal (someone who is not evidencing support from parents, but is working 20 hours per week during term time, and has £1,200 in funds for the two month period required by the rules): an appeal may have been lodged within the past months, with an upcoming appeal after 23 May, where those instructed have completed all work necessary for the appeal.
With the Commencement Order in the terms as set out by Mr Green, this appeal will fall under the second exception found in section 85A of the 2002 Act. Should this appeal crucially rely on new evidence to demonstrate some pre-existing fact, then there would no longer be any merits in continuing this appeal, whereby all the previous work done under legal aid would have been wasted and in vain. I am sure there will be a number of appeals falling into this category, in which lawyers and appellants may find themselves being deprived of the opportunity to rely on key evidence which was not available/submitted at the time of the application.
Consider what a student is to do with his leave expiry looming, and his previous certificated have not been issued yet, but merely the transcripts of his results, and this certificate is required to show a previously qualification relied upon for a new offer of a place on a course.
Section 85A(4)(a) of the 2002 Act clearly states that evidence can only be considered by the Tribunal if it were submitted at the time of the application, and in support of the application. In the case of the student waiting for his educational institution to send his certificate with his leave expiry upcoming, he is forced to either make an application, or be considered an overstayed on his record.
If he were to make an application without the necessary documents as precisely set out, then he would not be able to rely upon this in a appeal, and would be forced to make a further our of time application, having to pay twice. The student, alternatively, is held at the mercy of individual UKBA caseowner’s discretion, whereby the student may be able to explain his circumstances, and be allowed to send in further evidence as part of his application. This poses its own problem, in that the evidence was clearly not submitted at the time of the making of the application, and so if faced with a refusal, the Tribunal may be bound not to accept this evidence.
What I cannot see is how this new provision is going to help the circumvention of checks, as Mr Green stated in his ministerial statement. Under the pre-85A system, an Immigration Judge could see for herself as to the documents being submitted at the hearing rather than previously with the application. A judge can then take all the evidence together as a whole and assess whether, on the balance of probabilities, the appellant has given accurate and truthful evidence in her appeal, and in her assertion that he actually met, and can meet all the requirements of the Immigration Rules. An Immigration Judge, in carrying out the task of assessing all the evidence in the round would, in my opinion, be a check in itself, which would not have been circumvented.
Although this may make for a good headline in that the Government looks to be acting tough in relation to immigration, in practise, I do not think it practically does anything but allow the Government to rake in more money with regards to second applications. In practice, rather than increasing confidence in the immigration system, I believe, for lawyers, it does the opposite, as there is now a distinct lack of legal certainty for those who have appeals pending, and more bureaucratic red tape for those who, unfortunately, have to wait for their evidence to come, through no fault of their own.
With such a strict system in place from 23 May, I believe that there is a need for more guidelines with regard to discretion to be exercised by case owners, especially in relation to the requirements of documents which the applicant has to provide, but does not have within his possession through no fault of his own. For example, in the case of a student waiting for a certificate of qualification, perhaps it would be prudent discretion to allow caseowners to accept the transcripts of examination results as evidene of qualification pending the certificate, and to treat as the certificate as having been submitted at the time of the application if it is later submitted to the caseowner.
From a practitioner’s point of view, the new regime would make assessing merits for appealing to the Tribunal a lot harder, as we now will have to see a copy of the actual application made before being able to advise on merits. From experience, a lot of appellants do not seem to have a copy of this until the UKBA serves their Respondent’s Bundle. I suppose the key to all applicants would be to ensure that you have a good, legible copy of the application and all supporting documents so that this can be shown to a lawyer should you require legal advice in the event of a refusal of the application made.
Howard graduated at University College London. He was called to the Bar by the Inner Temple and is a non-practising Barrister. He is a Level 2 Law Society Accredited Immigration Advisor, practising for a firm of solicitors in London. Previously, he has worked at Refugee and Migrant Justice, and the Immigration Advisory Service, specialising in appeals before the Tribunal, and the detained fast-track process. He also writes for the blog Howard’s Heaven