IAT Prior to the Secretary of State’s decision and without notification to him, the Appellant changed her course of studies from that in respect of which the application had been made (paragraph 57(ii)(b) of HC 395 as amended) to one referable to paragraph 57(ii)(a )thereof.
Held: (1) the nature of the change was such that the Appellant could not comply with the requirements of the Immgration Rules in relation to the course for which she had initially applied; the Immigration Judge erred in law in considering that the provisions of s. 85(4) of the Nationality, Immigration and Asylum Act 2002 (as explained in LS (Post decision evidence; direction; applicability) Gambia [2005] UKIAT 00085) permitted him to consider post-decision evidence in relation to an application entirely different in nature from that for which the Appellant had applied. (2) An Immigration Judge is entitled to consider whether an Appellant can meet the requirements of all relevant provisions of the Immigration Rules, whether or not raised as an issue by the Respondent, provided that the Appellant is given the opportunity to address such additional requirements (R v Immigration Appeal Tribunal ex parte Kwok On Tong [1981] Imm AR 214 applied). (3) It was arguable that by changing the fundamental nature of her application the Appellant should have known that all requirements of the Immigration Rules were brought into play notwithstanding the terms of the refusal decision. But, in any event event, even if the Immigration Judge had erred in law in not putting her more clearly on notice as to the matters he intended to take into account, such error was not material to the outcome of the appeal for the reasons set out at (1) above.
Judges:
Ockleton VP, Barnes, Jordan SIJJ
Citations:
[2006] UKAIT 00034
Links:
Immigration
Updated: 06 July 2022; Ref: scu.241222
