The Upper Tribunal has reported a decision on the effect of the new section 85A of the Nationality, Immigration and Asylum Act 2002: Alam (s 85A – commencement – Article 8) Bangladesh [2011] UKUT 00424 (IAC). The official headnote reads as follows:

(1) Where it applies, s. 85A of the Nationality, Immigration and Asylum Act 2002 precludes certain evidence from being relied on, in order to show compliance with the Immigration Rules.

(2) “Fairness” arguments concerning the application of the transitional provisions regarding s. 85A, in article 3 of the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011, may have a legitimate part to play in a proportionality assessment under Article 8 of the ECHR, when assessing the strength of the State’s interest in maintaining the integrity of the Immigration Rules.

This new section was brought into effect back in May in controversial circumstances: the restriction on the submission of post-decision evidence took immediate effect even in appeals that had already been lodged and were about to be heard. Changing the rules of evidence half way through an appeal is rather unfair, one might think. One of my clients had submitted the appeal bundle before the commencement order took effect, and before we even knew about it, but because the hearing was after commencement that bundle was basically redundant. The client was also deprived of the benefits of the new flexibility to request further evidence that was introduced at the time of commencement.

The Senior Immigration Judge behind the new decision, Mr Lane, is untroubled by the legality of the commencement order but notes that the fairness issues that arose might be relevant to an Article 8 human rights assessment. He points out that the legality of the commencement order could have been challenged in the High Court but was not, at least in this case (I’m sure someone has lodged such a challenge). The tribunal does have jurisdiction to allow an appeal on the basis that a decision was not in accordance with the law, but generally prefers not to exercise its muscles in this way. To be fair, the Court of Appeal did say in EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630 that this was probably right: lawfulness challenges could be entertained in the tribunal but the vires of a piece of secondary legislation ought to be challenged in the High Court, which was the more appropriate venue.

In the real world, the tribunal is a far more accessible and cost effective means of challenging a decision, but this is not enough of a reason for the tribunal to accept jurisdiction in such cases, regrettably.