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Tribunal takes trip down memory lane with student visa appeal
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The headnote of Rana (s. 85A; Educational Loans Scheme) Bangladesh  UKUT 396 (IAC) deals with two matters:
1. There was nothing in s 85A of the 2002 Act preventing the Secretary of State from adducing evidence.
2. The requirement to show that a loan was “part of an Academic or Educational Loan Scheme” for the purposes of paragraph 1B(d)(7) of Appendix C is not met merely by showing that the loan was for educational purposes. Such a scheme will have some element of government or official involvement, will be of advantage to students in comparison with ordinary commercial loans, and will be concerned with the loans as a group as well as individually.
I think it is fair to say that the first will be of purely historical interest, and the second relevant only to very specific circumstances.
Mr Rana had applied for a student visa and sought to rely on a loan from Pakistan-based Prime Bank as evidence of meeting the relevant financial requirements. The Home Office decided that the loan arrangement didn’t meet the terms of the Immigration Rules. Mr Rana appealed.
The lesser spotted student visa appeal
We are now very familiar with the restriction of appeal rights to mainly human rights and refugee cases, heralded by the Immigration Act 2014 and commenced on 6 April 2015. It is therefore somewhat surprising to see a student visa appeal reach the Upper Tribunal in November 2019.
How could that be possible? Under the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015 No. 371 (C. 18)), someone who applied for a Tier 4 visa before 20 October 2014 would still have a right of appeal under the old regime. From the fairly tortuous case history it appears Mr Rana first applied to extend his student some time before that date. The application was ultimately refused on 1 September 2015.
Mr Rana then appealed unsuccessfully to the First-tier Tribunal. The Upper Tribunal refused permission to appeal that decision, but a Cart judicial review quashing that refusal was successful under “wholly obscure” grounds. The matter came then before the Vice President Mr Ockelton and Upper Tribunal Judge Blundell (who has had a fascinating and unique career advancing from Home Office Presenting Officer to Upper Tribunal judge). They determined that the original First-tier judge, nearly three years prior, had made an error of law and proceeded to remake the decision.
Hence the Upper Tribunal came to consider an appeal which at its core concerned a course of study which likely commenced five years ago.
The point of historical interest
Prior to the 2014 Act, appealing against the refusal of a visa (properly speaking a refusal to vary existing leave) was possible under the Nationality, Immigration and Asylum Act 2002. Section 85A of the 2002 Act was inserted by the UK Borders Act 2007 as part of the staged dismantling of appeal rights for Points Based System cases.
The purpose of section 85A was to prevent an appellant from adducing any post-decision evidence that was not “submitted in support of, and at the time of making, the application to which the immigration decision related”. There were various exceptions to the rule, in particular where the evidence was “adduced to prove that a document is genuine or valid” or related to grounds not connected to the acquisition of points.
Section 85A was a bit of a pain for immigration lawyers. I recall various cases in which I sought in vain to get an immigration judge to consider a vital bit of evidence. The refusal was often based on a simple matter that would easily be fixed with the evidence, but section 85A was a big restriction. If it wasn’t in the original application, you were often stumped.
The alternative was to withdraw an appeal and apply again with the correct evidence, but this rendered your client an overstayer without leave and removed any right of further appeal. It was a situation Joseph Heller would have enjoyed writing about.
The relevance of the section to the decision in Rana is that at an earlier stage of proceedings the Home Office was criticised for adducing further evidence about the organisation which had offered Mr Rana his loan. But as the Upper Tribunal points out in Rana, the prohibition on bringing in new evidence does not apply to the Home Office. Any unfairness was ameliorated, it was said, because it was incumbent on the appellant to provide evidence they met the rules. And in any event the judge could adjourn to allow an appellant to take stock of any new evidence presented by the other side.
The point of niche interest
The remainder of the case is a very fact-specific review of the circumstances of Mr Rana’s bank loan. The Upper Tribunal concluded that it did not qualify as an “Academic or Educational Loan Scheme”, partly because there was no government or official involvement and partly because it was an individual loan rather than a “scheme” where a pot of money was distributed in multiple loans.
Very sadly Mr Rana had throughout the prolonged appeals process been seriously ill, eventually being diagnosed with a brain tumour. As an illustration of the disjointed nature of our system, the Upper Tribunal said that there might be submissions that could be made based on Mr Rana’s private life and health, but that these would need to be made afresh to the Home Office by way of the appropriate application. Ironically such an application, save for the power of the Home Office to certify cases as “clearly unfounded”, would under the new appeals regime come with a right of appeal to the tribunal.