Maintenance: NO NEW EVIDENCE would be allowed to introduce

[vinata]

Hello everyone,

The most recent reconsideration determination is out now. Please take a look at the link below.

http://www.ait.gov.uk/Public/Upload/j22 ... _lanka.doc

There are quite a few interesting points, but the most interesting one is extracted below. It clearly stipulates the HO has made efforts to amend the immigration rules in order to remove article 85(4) and 85(5) to disable appellants to be able to introduce any new evidence whatsoever!!!

So, when it comes into force, only the evidence provided at the time of application could be considered in court. It means, effectively, if someone didn’t submit all the evidence at the time of application, there wouldn’t be any chance to do so at the appeal, even if it directly relates to the period in question.
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Para 75.
Section 85(4) is a piece of primary legislation, whereas the Immigration Rules are not even, as noted by Lord Hoffman in Odeola v Secretary of State for the Home Department [2009] UKHL 25 at para 6, a form of subordinate legislation. By virtue of s.86(3) they have the force of law but they cannot override primary legislation. Indeed it seems to us, as it seemed to SIJ McKee in the case of the first appellant (and Mr Tufan did not seek to disagree), that the respondent has clearly recognised the current primacy of s.85(4) by having decided it was necessary to enact further primary legislation to circumscribe its effect specifically in respect of Points Based System appeals. As already noted, s.19 of the UK Borders Act 2007 amends s.85 of the 2002 Act so as to create two exceptions to it, one of which is that neither s.85(4) nor s.85(5) will apply to Points Based appeals. It introduces a statutory requirement in Points Based appeals prohibiting consideration by the Tribunal of evidence that was not submitted at the time of making the application. However, it is not yet in force. Until this amendment to the 2002 Act comes into force the immigration rules cannot fetter the applicability of s.85(4). They cannot create an exception not yet brought into force.


http://www.ait.gov.uk/Public/Upload/j22 ... _lanka.doc

[cheryl99]

I thought what they mean is that you can submit evidence to prove that at the time of applying you met all the criteria, but you cannot submit new evidence that covers you from the time of application?

It is interesting if they remove that rule, because the burden of proof is on the applicant to prove that they met all the criteria, meaning that they should be able to submit extra evidence if it directly relates to the time of applying. What about those who have other problems besides maintenance?

[ash786]

But was it not already in palce as an applicant can not introduce any new evidence after the date of the application?

[vinata]

Sorry, Guys. Maybe wasn't clear enough. The extract I have provided states that ones the amendment to article 19 of immigration rules has been implemented and come into force, no additional evidence would be permitted whatsoever to be considiered in the court, but only that which was originally submitted with the application. In other words, it would be similar to the administrative review currently in place for out of country applications.

In contrast, at the moment an appelant is allowed to provide an additonal evidence if it relates to the period in question by vertue of article 85(4) and 85(5), however, the HO has made an effort for this articles to be removed from the rules in relation to all points based applications, not just psw. So, the judge also commented on it by saying he could not rely on the rule which was not yet brought to the force.

If you read the full determination carefully, it will become more clear. But the news is bad. And it has aleady happened.