Changes to Points Based System Appeals

The UK Border Agency announced that from 23 May 2011 tribunals will not be allowed to consider evidence submitted after they have made a decision to refuse a Points Based System application.

The UKBA say that it will 'stop misuse of the system' and stop 'individuals to drag out their appeal by submitting new evidence at the last minute'. However, what was slightly glossed over (or actually ignored) was their poor decision making, and their failure, up to now, to avoid the appeals (and the costs of those appeals) by simply contacting the applications for the right evidence before making a decision. The UKBA now say they will do this from 23 May 2011.

The Commencement Order is expected to apply to all appeals heard for the first time against refusals under the PBS regardless of the date that the appeal was lodged.

This seems to be an abuse of the legal certainty principle, where grounds of appeal are changed without warning or notice. Particularly, as those who received negative decisions before 23 May 2011 would not have had UKBA caseowners contact them for further information / documents before making that decision. To then deny that information during their appeal is irrational. Also...

The UK Border Agency announced that from 23 May 2011 tribunals will not be allowed to consider evidence submitted after they have made a decision to refuse a Points Based System application.

The UKBA say that it will 'stop misuse of the system' and stop 'individuals to drag out their appeal by submitting new evidence at the last minute'. However, what was slightly glossed over (or actually ignored) was their poor decision making, and their failure, up to now, to avoid the appeals (and the costs of those appeals) by simply contacting the applications for the right evidence before making a decision. The UKBA now say they will do this from 23 May 2011.

The Commencement Order is expected to apply to all appeals heard for the first time against refusals under the PBS regardless of the date that the appeal was lodged.

This seems to be an abuse of the legal certainty principle, where grounds of appeal are changed without warning or notice. Particularly, as those who received negative decisions before 23 May 2011 would not have had UKBA caseowners contact them for further information / documents before making that decision. To then deny that information during their appeal is irrational. Also, the statutory instrument was not laid before parliament for 21 days before coming into force - another breach of process.

The Commencement Order brings into s19 of the UK Borders Act 2009. However, the following exceptions will apply:

evidence submitted in reliance of grounds relating to unlawfulness on race relations; human rights grounds; EEA grounds; and relating to removal of the appellant;
evidence is adduced to prove that a document is genuine or valid; or
evidence adduced to in connection with discretion under the immigration rules, or compliance with a requirement of the rules, not related to the acquisition of points under the PBS

It is important that if you have lodged appeals against decisions received before 23 May 2011 to seek legal advice, as there will be genuine grounds for arguing that new evidence should be considered.

More when we have it.

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