Changes to Immigration Appeals : Section 19 of the UK Borders Act 2007
Section 19 of the UK Borders Act 2007 came into force on 23rd May 2011 effectively adding to Section 85A of the Nationality, Immigration and Asylum Act 2002. The relevance of section 19 is that it further limits the use of new evidence which may be used in points based system (PBS) appeals where the evidence was not previously submitted to an entry clearance officer for consideration.
Immigration Minister Damian Green stated that:
"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."
This recent change is said to affect not only new applications but ongoing appeals (except part heard or fully heard appeals which remain unaffected). Section 85A of the 2002 Act sets out certain exceptions which can be applied in respect of new evidence in PBS appeals, namely;
85A Matters to be considered: new evidence: exceptions
(1) This section sets out the exceptions mentioned in section 85(5).
(2) Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.
(3) Exception 2 applies to an appeal under section 82(1) ifa"
(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 ita"
(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".
Section 85A does allow applicants to provide new evidence for instance, to prove that a document already submitted with their application is valid or genuine. Or for instance, where the decision is unlawful for another reason or where the home office has failed to exercise discretion not related to the points based system.
Previously, applicants could rely on evidence which was available but had not been submitted at the time of their application. Now applicants will have only limited rights upon which they can appeal in light of section 19 and the above.
Applicants who face this scenario will have to re submit a new application and pay the relevant fee. It is therefore advised that applicants carefully consider making their applications via a legal representative to minimise the chances of being refused and having to re submit an application. At Ergen & Sharif, our experienced advisors can assist in ensuring applications are submitted with the correct documentation.
If you would like further information as to our services and whether or not we can assist you in an appeal, please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk.
