In another major end of term judgment the Court of Appeal has finally reviewed the legality of preventing reliance on new evidence at Points Based System appeals hearings. The case is Alam v Secretary of State for the Home Department [2012] EWCA Civ 960 and it includes a review of the correctness of the tribunal’s earlier take on the same subject in Shahzad (s 85A: commencement) [2012] UKUT 81 (IAC) (covered here on the blog previously).

At the heart of both cases lies the controversial commencement of section 85A of the Nationality, Immigration and Asylum Act 2002. This new section was enacted by the UK Borders Act 2007 but lay unused on the statute book until Tuesday 17 May 2011 when a slightly garbled Commencement Order was suddenly laid with no warning. This brought the section into effect the following Monday, 23 May 2011. The controversial bit was that the section would apply even to appeals that had already been lodged. In a perfect illustration of the unfairness of this commencement, I had a client that served her appeal evidence before that Tuesday but was not allowed to rely on it on the following Monday.

Unfair and unlawful are two different things, however. The Court of Appeal have decided that the commencement was lawful and that Shazhad was wrongly decided. Sullivan LJ, the new Senior President of Tribunals and no stranger to immigration cases, goes as far as to say this of the Byzantine Points Based System:

The price of securing consistency and predictability is a lack of flexibility that may well result in “hard” decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents. Imposing such an obligation would not only have significant resource implications, it would also extend the time taken by the decision making process, contrary to the policy underlying the introduction of the PBS.

It is noteworthy that the Court of Appeal does not seem to have been informed of the evidential flexibility policy, which is a shame. Even the Home Office have belatedly recognised that the hard lines are simply too hard. The reality is that the Points Based System is so insanely complex and unknowable that it does not remotely achieve its purported objectives of transparency and objectivity. The capacity to correct one’s failure to understand it by putting matters right on appeal without becoming an overstayer, committing a criminal offence and being hit for another huge UKBA fee was the scheme’s silver lining. The fact that 63% of appeals were apparently being allowed because the appellant only managed to submit the correct evidence on appeal surely tells us not that the scheme was being abused but that the scheme is abusive. It is like a software company blaming users when the programme crashes. Particularly when one considers the high cost of making an application.

Regrettably, the complexity of the Points Based Labyrinth is a boon for us immigration lawyers. For many it would be advisable to get a good lawyer at the start of the process, given that it is now impossible to put things right later. Few normal humans are able to follow the breadcrumbs. And we know what happens to those that get lost…