IA079202013 & IA079262013 & IA079332013

I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.

The issue before the Judge was whether the Appellant scored sufficient points for Attributes under Appendix A of HC 395. The Respondent�s case was that although the main Appellant had access to funds of at least �50,000, he did not meet the requirements of sub-paragraphs (iii) and (iv) of Table 4 of Appendix A. No documents had been submitted to show that the main Appellant had registered with HMRC as self-employed, nor had he submitted the specified evidence set out in paragraph 41-SD to show that he was engaged in business activity.

The Judge allowed the appeal because she found that the Respondent should have requested further documentation from the Appellants pursuant to paragraph 245AA(b) of HC 395. Alternatively, the Respondent should have sought and considered further documents under her Evidential Flexibility Policy. Further, the Judge found that the main Appellant was engaged in business activity from documents contained in the Appellants� bundle amounting to contracts which post-dated the date of decision.

Ms Everett argued at the hearing and in the grounds that the Judge had erred in law in reaching her conclusion. The Judge had relied upon evidence which she was not entitled to consider under the provisions of Section 85A Nationality, Immigration and Asylum Act 2002. Further, the Judge had erred in law by allowing the appeal under the Immigration Rules on the basis that the Respondent had not applied her Evidential Flexibility Policy. The decision of the Judge should have been that the Respondent�s decision was not in accordance with the law.

In response, Mr Malik accepted that the finding of the Judge should have been that the Respondent�s decision was not in accordance with the law. However, he argued that the Judge was entitled to take into account post-decision evidence under the provisions of Section 85A(4)(c) of the 2002 Act. This provides that post-decision evidence can be adduced to prove that a document is genuine or valid, using the Oxford English Dictionary definition of valid as �legally acceptable�.