Point Based System migrants: You might have had a second bite at the cherry in past, but not any more.

Are you a PBS Tier 1, Tier 2, Tier 4 or Tier 5 migrant with valid leave to remain in the UK? If so, and if you are thinking about applying for your next visa extension to the UKBA yourself without any expert help this is the article which will help you decide about taking such an important step on your own.

It will help you balance the risk and the costs by explaining currently available limited options of rectifying your mistakes in any such PBS extension applications. It will explain to you how the changes in the law last year has deprived the PBS applicants of a “second bite at the cherry” and the draconian consequences of a small omission when you are making a PBS application.

Alam & Ors v Secretary of State for the Home Department [2012] EWCA Civ 960 (13 July 2012) is an important case of three International students Alam (Bangladeshi national), Anwar (Pakistani national) and Eghan (Ghanaian National) each of whom failed to send a particular mandatory document (e.g. correct bank statement, educational document, etc.) in support of their relevant PBS Tier 4 General extension applications.

Before their hearing dates in the relevant First-tier Tribunals, s19 of the UK Borders Act 2007 had already introduced s85A of Nationality, Immigration and Asylum Act 2002 and therefore they were prevented by the Upper Tribunal (even where initially allowed appeals by the relevant FT) to rely on these documents in support of their PBS leave to remain applications.

All three appellants appealed against the decisions of the Upper Tribunal in the Court of Appeal in Alam & Ors v Secretary of State for the Home Department [2012] EWCA Civ 960. The Court started with an introduction of the PBS system and then referred to the rules and policy guidance where specific documents are required.

The Court then explained the background of the statutory scheme that when deciding whether the decisions to refuse the applications were in accordance with the immigration rules the Immigration Tribunal was, prior to 23rd May 2011, given a wide discretion to admit new evidence by section 85(4) of the Nationality Immigration and Asylum Act 2002.

Section 85(4) was subject to the exceptions in subsection (5), but those exceptions did not apply to PBS appeals. Thus, if a PBS application had been refused by the Secretary of State because the applicant had failed to produce a specified document, or documents, the applicant could remedy the omission on appeal to the Tribunal. Some 63% of successful PBS appeals were allowed because the appellant produced new evidence, which had not been submitted with the application, at the hearing of the appeal before the Tribunal.

The Government believed that the ability to produce new evidence at the appeal stage threatened to undermine the operation of the PBS. In order to address this problem the Secretary of state made an Order on Tuesday 17th May 2011 bringing section 19 of the UKBA 2007 into force on the following Monday, 23rd May 2011 which introduced s85A of Nationality, Immigration and Asylum Act 2002 with the effects as mentioned in paragraph 3 above.

The court referred to Art 3 of this Order and Shahzad (85A commencement) [2012] UKUT 81 (IAC) where two Tier 1 (General) applicants (Shahzad, Kunal), one Tier 4 applicant (Malik) found themselves in the similar situation and the Upper Tribunal held that in order to avoid any other retrospective effect, Article 2  of the above Order is to be interpreted as having effect only where the appellant’s extension application was made on or after 23 May 2011. These applicants were therefore allowed to use the new evidence since they had fortunately made their applications before 23rd May 2011.

In Alam the Court said that if Shahzad is correctly decided these appeals must be allowed as in each case the application to the Secretary of State was made before the 23rd May 2011. Mr. Swift submitted that it was not correctly decided.

The Court in discussion accepted that the Article 3 of the above Order is not as unclear as the Upper Tribunal held in Shahzad and not so bizarre that Art 3 must be disregarded. Applying Lord Mustill’s approach in a 1994 case the Court in Alam did not consider that the consequences of applying article 2 of the order, subject to the transitional provision in article 3 (see above), to all appeals as from the 23rd May 2011 are “so unfair” that the article must be interpreted as having effect only where the applicant’s application to the Secretary of State was made on or after 23rd May 2011. The Court also held that the new evidential scheme is not so unfair that the imposition of a general duty on the Secretary of State to request missing documents in the PBS application can be justified. The Court in Alam & Ors v Secretary of State for the Home Department [2012] EWCA Civ 960 held that Shahzad was wrongly decided, and dismissed all three appeals.

You may have been lucky to be one of the 63% successful appellants having made such omission in past in your PBS applications. Or you may have been luckier (if not very well prepared and up-to-date with all legal changes) not to have made any mistake or omission in past in your PBS extension applications in view of the ever-changing immigration rules. However, considering the above changes it is wise not to rely on luck anymore, and be competent and careful when making PBS applications for yourself or on behalf of someone else.

We here at Maxim Law understand that for some PBS migrants it is not always affordable to have their applications (Postal or premium) represented to the UKBA, we therefore not only provide affordable representation but also provide alternative options where PBS applicants may seek legal advice and documents check service at a much lower cost from our caseworkers in order to ensure that they have included everything required in your file.

If your extension is due or the visa expiry date is approaching contact us today for free generalist advice and the options we have for you.

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