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
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