Case No: C5/2015/0789
Neutral Citation Number: [2016] EWCA Civ 529
IN THE COURT OF APPEAL 
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)

Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 28 January 2016: 

Before:

LORD JUSTICE McCOMBE

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Between:

	IA (NIGERIA)	
Applicant	
	- and -		
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Mr David Mold (instructed by Malik Law) appeared on behalf of the Applicant

The Respondent did not appear and was not represented

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Judgment

LORD JUSTICE McCOMBE:  

1.	This is a case in which no anonymity direction is required and the order in the case should list the applicants by their full names.

2.	This is a renewed application for permission to appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) of 11 December 2014, promulgated on the following day, which dismissed the applicants’ appeals from a decision of the First-tier Tribunal dated 17 September 2014, promulgated on 22 September of that year.  Those appeals dismissed the applicants’ appeals from decisions of the respondent Secretary of State.  Those decisions were contained in letters to each of the applicants, dated 6 June 2014 and in each case refused their applications for leave to remain in the United Kingdom together with an application for biometric residence permits.

3.	Permission to appeal to this court was refused by the Upper Tribunal by order of 12 February of last year and was again refused by Elias LJ on a consideration of the application on the papers by his order of 23 April of last year.

4.	The factual background is as follows.  I propose, with the greatest of respect, to use the initials of the appellants for fear of mispronouncing their names as badly as people mispronounce mine from day to day in this court.  Mr IA, Mr OA and Mrs RA are the first, second and third applicants.  They made a combined application to the Secretary of State.  The first and second applicants applied for leave to remain in the United Kingdom as Tier 1 (Entrepreneur) Migrants.  The third applicant applied for leave to remain as a partner of a Tier 1 migrant, namely the first applicant.  Her application was entirely contingent upon the success of the first applicant’s application.

5.	The first and second applicants demonstrated that they satisfied all the entrepreneurial migrant requirements but one.  The Secretary of State was not satisfied that either one was working in an occupation skilled at National Qualification Framework level 4.  I will call that framework “NQF”.  The first and second applicants claimed to be “purchasing officer / director” and “marketing officer / director” respectively for their company called Corner Point Investment Ltd.  It appeared to the Upper Tribunal that, whilst the appellants were applying at NQF level 6, consideration was also given to these applicants by the respondent at the lower level of NQF 4 in the alternative.

6.	In support of their applications the applicants had submitted a photocopy of a contract between their business and a company called Floxx and Thane Nigeria.  This contract was not accepted as evidence by the Secretary of State because it was a photocopy and was not signed on every page.  However, it appears that even if the contract had been acceptable the Secretary of State would still not have found that the job done by the applicants was of a sufficiently high level to be skilled at NQF level 4.

7.	The applicants appealed to the First-tier Tribunal, where the first and second applicants argued that they were working in occupation skilled at NQF level 6.  The applicants put before the judge a table of occupations skilled at level 6.  The judge took note of the entire code so as to see if the occupations reached NQF level 4.  Neither of the two applicants gave evidence before the First-tier tribunal, a matter upon which the judge made adverse comments.  However, at least one of the applicants had produced a witness statement in support of the appeals.

8.	The judge concluded that there was no credible evidence before the tribunal of what either of the first applicants actually did in relation to this business, for which they were claiming the relevant points under the system, still less any correlation between that and the occupation codes, whether at level 4 or at level 6.  The judge noted there was no reason for the decision maker to request the original contract, as it would, in the circumstances, have made no difference to the case, and he dismissed the appeal.  This was on the basis that the important point was what the appellants’ activities were at the requisite levels and the contract would have been nothing to the point if they did not meet the criteria on that core point.

9.	The applicants appealed to the Upper Tribunal with permission of a different judge of the First-tier Tribunal.  The Upper Tribunal considered that while the practice of the judge in making his own inquiries about the further provisions of the code was not to be encouraged, what the judge did in examining the codes in more detail was designed to benefit the appellants and would not have altered the First-tier Tribunal findings on the grounds of appeal that they had advanced themselves.  

10.	The Upper Tribunal judge also noted that the First-tier judge had clearly dealt with the “evidential flexibility” point.  Finally, the Upper Tribunal decided that, although the first judge did make adverse comments about the failures to give evidence, that did not detract from the fact that the evidence submitted was not sufficient to satisfy the judge that the appellants met the requirements of the rules.

11.	The applicants now seek to argue that in upholding the determination of the First-tier Tribunal the Upper Tribunal adopted essentially very similar errors of law of those of the First-tier Tribunal.  In particular, Mr Mold submits in his helpful arguments, both on paper and orally before me this morning, argued that the deputy judge in the Upper Tribunal erred: first, in determining that the First-tier judge’s adverse comments relating to the failure of the appellants to give evidence was not a material error of law;  secondly, in determining that the First-tier judge’s course in taking judicial notice of the codes of practice, which were not in evidence, was a material error; thirdly, in determining that the First-tier Tribunal’s finding that the respondent’s failure to apply the evidential policy as too flexible an application of such policies and / or paragraph 245AA of the Immigration Rules was not a material error.

12.	Mr Mold asserts that all three of these grounds, either together or individually, raise important points of principle or practice which satisfy the second appeals test.  As is well known, and as Mr Mold and his clients no doubt appreciate, what is required to secure permission to appeal to this court is to demonstrate not just that there might be an arguable error of law made but the error of law that is sought to be advanced is one raising an important point of principle or practice or that, in that context, there is some other compelling reason why permission to appeal should be granted.

13.	In my judgment, points 2 and 4 come nowhere near demonstrating any important point of principle or practice.  The second supposed error, namely taking judicial notice, as it is put, of the codes of practice, was no more than an endeavour by the judge to assist these applicants at looking at their case in a more favourable way than even they were seeking to present.   In my judgment, the judge could not have been criticised for not bothering to address that case at all, insofar as he did not precisely apply what might be called best practice and does not seem to me to amount to any important point of principle or practice.

14.	Further, the examination of publicly well-known codes does not seem to me to be an evidence-gathering exercise at all.  These codes are familiar to all practising in the immigration field and all the judge was doing was seeking to inform himself better as to the context in which the various applications were made.

15.	As far as the alleged failure by the Secretary of State to apply evidential flexibility to the failure to supply a better copy of the contract with the Nigerian company, it seems to me that the Upper Tribunal was correct to find that there was no material error of law in that respect because, even if that contract had been supplied, the important point in the case was whether or not (overall) these applicants had demonstrated to the Secretary of State a level of activity that satisfied the NQF, whatever level might be applicable.  That was the core point.  That was the point that the Secretary of State decided adversely to them, as did the First-tier Tribunal, and the provision of a better copy of the contract in issue would not have made a significant difference to the decision that was reached.  

16.	The point that I consider as having more merit in this matter is Mr Mold’s ground 1 about the judge’s taking an adverse view of the case, as he puts it, by virtue of the applicant’s not having given evidence.  He correctly points out that this is a case where section 85A(4) of the Nationality Immigration and Asylum Act 2002 applies, which provides:

“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’.”

17.	Mr Mold submits that the First-tier Tribunal judge was in error in criticising the applicants for not having given evidence in support of their claim when such evidence would in fact not have been admissible.  Of course, balanced against that is the fact that the applicants themselves were in practice, rightly or wrongly, seeking to rely and persuade the judge by reference to evidence that they had adduced in the witness statement that was advanced.  

18.	In my judgment, while that point has far more attraction, it does not seem to me to afford an important point of principle or practice to be argued in this court.  It seems to me that the learned judge may have taken a wrong approach.  However, what he had to assess was the assessment made by the Secretary of State, which he did.  He did that independently and I am not satisfied that even on a first appeals test it would necessarily be demonstrated that there was a real prospect of showing that that made a significant difference to the decision that was reached.

19.	I am grateful for Mr Mold taking me through the relevant passage in section 85(4).  However, when examined closely, it does not seem to me that that point raises an important point of principle or practice sufficient to warrant the grant of permission to bring a second appeal to this court.

20.	For those reasons, carefully argued through the application has been, it must be refused.

Order:  Application refused