Balajigari v The Secretary of State for the Home Department

Mr Balajigari is a national of India and was born on 14 June 1987. He had leave to enter the UK as a student from 2 August 2007 and entered the UK on 16 August 2007.

On 29 October 2008 Mr Balajigari applied for leave to remain as a Tier 1 (Post Study Work) migrant. He was given such leave from 18 November 2008 to 18 November 2011. On 15 July 2010 he applied for further leave to remain as a T1GM. That application was refused on 25 August 2011.

On 24 March 2011 Mr Balajigari again applied for leave to remain as a T1GM. This time the application was granted and he was given leave to remain from 6 June 2011 to 6 June 2012. On 16 May 2013 he applied for further leave to remain as a T1GM and was given further leave until 6 June 2016.

On 1 June 2016 Mr Balajigari applied for ILR pursuant to paragraph 245CD of the

The Reasons for the Secretary of State’s decision sent with the decision letter begin by setting out Mr Balajigari’s immigration history and setting out the terms of paragraphs 245CD and 322 (5). They then identify the earnings discrepancy and refer to the fact that when the application was submitted he was asked to sign a questionnaire, which asked, as question 9, “Are you satisfied that the self-assessment tax returns submitted to HMRC accurately reflected your Self-Employed income?”, to which he had answered “Yes”. They then note that his representatives had referred in the covering letter to the fact that he had recently corrected his return for 2010/11. They continue:

“The Secretary of State has further noted that you have amended your tax returns ahead of making an application for settlement in the United Kingdom and you have not submitted any justification for such amendments from a qualified accountant or a qualified tax consultant explaining the errors, if any, made in previous tax returns and what transpired to identify those errors in April 2016. The Secretary of State is therefore not satisfied that you have demonstrated the desired level of good conduct and character due to a substantial variation in your earnings claims to Home Office in immigration applications and your earnings declared to HMRC for personal income tax purpose and later amending the tax returns without having a valid justification to do so.

The fact that you have retrospectively declared these claimed earnings to HMRC is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with HMRC and/ UK Visas & Immigrations.

Having considered the fact that your declared earnings to the Home Office compared to what you declared to HMRC for a similar period differ significantly, the Secretary of State is satisfied that your earnings claims made in your Tier 1 application are not consistent with your declarations made to HMRC in the relevant tax period/s. The discrepancy between your declarations to both the government bodies casts doubts over your declared earnings in your previous applications and your conduct and character in doing so.

It is acknowledged that Paragraph 322(5) of the Immigration Rules is not a mandatory refusal, however the evidence submitted does not satisfactorily demonstrate that the failure to declare to HMRC at the time any of the self-employed earnings declared on your previous application for leave to remain in the United Kingdom as a Tier 1 General Migrant was a genuine error. It is noted that there would have been a clear benefit to yourself either by falsely representing your earnings to HMRC with respect to reducing your tax liability or by falsely representing your earnings to UK Visas & Immigration to enable you to meet the points required to obtain leave to remain in the United Kingdom as a Tier 1 General Migrant.

The Secretary of State considers that it would be undesirable for you to remain in the United Kingdom based on the fact that you have been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration by failing to declare your claimed self-employed earnings to HMRC at the time and/or by falsely representing your self-employed income to obtain leave to remain in the United Kingdom. Your application for indefinite leave to remain in the United Kingdom as a Tier 1 General Migrant is therefore refused under Paragraph 245CD (b) with reference 322 (5) of the Immigration Rules.”

The Reasons are not very well-constructed. The core basis for invoking paragraph 322 (5) appears to be in the second passage quoted, i.e. the decision that Mr Balajigari had dishonestly under-declared his earnings to HMRC or over-declared them to the Home Office, but in the earlier passage they appear to rely in addition on his subsequent amendment of his tax returns without a valid justification.

Mr Balajigari applied for an administrative review of that decision, but that was rejected on 20 July 2016. It is unnecessary for us to give details.

On 8 September 2016 an application for permission to bring a claim for judicial review was issued in the Upper Tribunal. UTJ Gill refused permission on the papers on 22 December 2016.

Mr Balajigari applied to renew the application at an oral hearing. On 27 January 2017, for the purposes of that application, his solicitors submitted to the Upper Tribunal a witness statement from him purporting to explain the discrepancy. It included various supporting documents, including a letter from his accountant taking responsibility for the mistake, which they described as “human error”.

On 22 March 2017 Mr Balajigari applied to amend the grounds of claim in terms drafted by Mr Biggs. Permission to amend was granted by UTJ Kopieczek on 29 March. We note that Mr Biggs did not plead any breach of Mr Balajigari’s rights under article 8.

The renewal hearing occurred before UTJ Gleeson on 19 April 2017. In the absence of any claim under article 8, the case was argued on the basis of a rationality review. Mr Biggs applied to adduce in evidence the witness statement and documents filed on 27 January 2018, but the Judge refused the application.

UTJ Gleeson refused the renewed application for permission to apply for judicial review.

At para. 22 UTJ Gleeson said that there is a duty to pay income tax on income earned, and there is a duty to make truthful disclosure of income when applying under the Immigration Rules. She said that it was plain that in 2011 the Applicant had failed in either one or the other of those and no explanation, other than blaming his previous accountants, had ever been advanced. She said that the provision of an accurate declaration to HMRC in 2010/2011 was the responsibility of the Applicant himself, and not that of his accountant, and the same was true of the figure that he gave for his income which enabled him to claim Tier 1 leave to remain. She concluded at the end of paragraph 22:

“… The Respondent was fully entitled to regard that as reliable evidence of reprehensible behaviour.”

At para. 25 UTJ Gleeson rejected the argument that the Respondent had acted in a manner inconsistent with published policy. She observed that the reprehensible behaviour in question does not have to be criminal. She also observed that non-payment of tax is a serious matter and that exaggeration of income for immigration purposes is also a serious matter.

At para. 26 UTJ Gleeson said that it was

“… unarguably open to the Respondent to conclude that he could not have done so inadvertently. The difference in figures is not a typographical error, it is not a mathematical error: it is quite clearly either an over- or under-declaration of a substantial part of his self-employment income.”

At para. 27 UTJ Gleeson turned to the argument based on procedural fairness. She rejected that argument on the basis that there was nothing stopping Mr Balajigari making further submissions but none had been made. Furthermore, he had not produced evidence or provided a satisfactory explanation of his conflicting income declarations to HMRC and the Secretary of State.

Finally, at para. 28, UTJ Gleeson said this:

“I am not persuaded, having looked at the covering letter but not the documents from 27th January 2017, that an examination of the enclosed documents by the respondent was likely to have taken matters any further at all. To the extent that there was any procedural and fairness by her, I am satisfied it would have made no difference to the outcome of the application.”

Accordingly, at paragraph 29, she declined to grant permission, observing that judicial review “is a discretionary remedy”.

Mr Balajigari’s grounds of appeal (as amended by order of Hickinbottom LJ dated 9 August 2018) cover the points addressed in Part A of this judgment (Footnote: ⁹), together with a challenge to UTJ Gleeson’s refusal to admit the further documents on which he sought to rely (ground 2) and two points dependent on the fact that the Secretary of State’s decision engaged his article 8 rights (grounds 3A and 3B). It will be apparent from Part A that, subject to the point discussed at paras. 132-9 below, the Secretary of State’s decision was legally flawed and that not only should the Upper Tribunal have granted permission to apply for judicial review but the substantive application should have succeeded. The essential points are as follows.

First, Mr Balajigari did not have put to him, in a “minded to” letter or otherwise, the allegation that he had acted dishonestly, nor was he given an opportunity to make representations in response to that allegation before the decision to refuse ILR was finally made. This was a serious procedural unfairness: see paras. 45-61 above.

Ms Anderson and Mr Malik argue that fairness did not require such notice because Mr Balajigari was aware of the discrepancy, since his representatives had referred in their covering letter accompanying the application to the tax return having been recently corrected, and he should have appreciated that his conduct would be regarded as potentially dishonest and a full explanation proffered: a similar point is implicitly made in the Reasons (see para. 111 above). We do not accept this. If this was in fact a belated correction of an innocent (albeit careless) error Mr Balajigari might genuinely not appreciate that it would look suspicious to the Secretary of State; and even if he did it cannot be for him to volunteer in advance a defence to an allegation of dishonesty that had not been made – that might indeed be thought positively to invite suspicion. We can of course easily see why the Secretary of State regarded the situation as suspicious, but, as we have held in Part A, that means that it was for him (Footnote: ¹⁰) to put his suspicions to Mr Balajigari.

Ms Anderson also argues that question 9 in the application questionnaire, about the accuracy of his previous returns, represented a fair opportunity for Mr Balajigari to own up to the discrepancy and explain with full particularity why it was not dishonest. But the answer is essentially the same: question 9 makes no accusation of dishonesty and it cannot be treated as a prompt to answer an accusation not made. In fact in Mr Balajigari’s case his accountants had in their covering letter drawn attention to the fact that they had recently corrected the previous under-declaration to the HMRC. We do not accept that they should, without being asked, have volunteered reasons why it had not been dishonest.

Secondly, though relatedly, the Reasons proceed directly from the conclusion that the discrepancy “casts doubts over your declared earnings in your previous applications

Thirdly, the Reasons do not contain any balancing exercise of the kind discussed at para. 38 above. They simply proceed from a finding of dishonesty to the conclusion that Mr Balajigari’s presence in the UK is undesirable. For the reasons which we have given, that omits an essential step in the process, albeit that in most cases it will be a step easily taken. This defect is related to the first, because the process gave Mr Balajigari no opportunity to advance any reasons why, even if his conduct was dishonest, his presence in the UK was not undesirable.

Fourthly, although the penultimate paragraph of the passage from the Reasons quoted acknowledges that “paragraph 322 (5) … is not a mandatory [ground for] refusal”, and thus appears to recognise the need for the exercise of discretion as a second stage, it goes on to rely simply on the fact that Mr Balajigari has acted dishonestly. That is not what the second stage is about: see para. 39 above. Of course, since there is a presumption in favour of refusal if the first stage is satisfied, it must be for the applicant to advance reasons why his or her application should not be refused; but this brings us back again to the first defect, since the process gives no opportunity to do so.

However, the foregoing is subject to one important further issue. In the part of the Secretary of State’s consolidated argument dealing with the cases of Mr Kawos, Mr

Ms Anderson’s post-hearing submissions in Mr Balajigari’s case confirm that the Secretary of State is advancing the argument referred to in that request. They contend that his “evidence and explanation to this Court” – which we take to be a reference to the evidence submitted to the UT – “was not such as to remove cause for concern but rather compounded the grounds for dishonesty”; and various specific points are made in support of that contention. Apparently on the basis of those passages, the submissions in their concluding paragraph (which appears in identical terms, mutatis mutandis, in her and Mr Malik’s post-hearing submissions in the other cases) say:

“Further, and in any event, any procedural issues were immaterial to the outcome given that the explanation provided was considered but found to be unsatisfactory for legally sustainable reasons. Since relief in judicial review (and in this Court) is discretionary, interference will not be justified where any alleged breach of natural justice was not material to the outcome (see Spahiu v Secretary of State for the Home Department [2018] EWCA Civ 2604, at [66] to [71]). Where yet a further reconsideration of AB’s explanation for the accepted discrepant personal declarations is highly unlikely to yield the contrary outcome, the procedural unfairness allegations do not provide a sound basis to allow AB’s appeal.”

The starting-point is that it is a long-established common law principle that a legally flawed decision will not be quashed where the errors are “immaterial” because the result would “inevitably” have been the same. That principle was applied in Spahiu, to which the submissions refer. We have to say that that is not the most apt reference, since it was not necessary in Spahiu for the Court to discuss the underlying principle, and the circumstances in which it fell to be applied are rather untypical, but the best-known authorities are helpfully summarised in chapter P4 (“Materiality”) of Fordham’s Judicial Review Handbook (7^th ed).

It is well-established that the Court should observe great caution in refusing relief on the basis of immateriality, and that is reflected by expressing the relevant threshold in terms of inevitability. This is emphasised in particular in cases where the person affected by a finding of misconduct has been denied an opportunity to put their case. Mr Biggs in his written submissions in response refers to R v Chief Constable of Thames Valley Police ex p Cotton [1990] IRLR 344 (as do Mr Slatter and Mr Saini): see paras.

With effect from 13 April 2015 a new sub-section (2A) was introduced (by section 84 of the Criminal Justice and Courts Act 2015) into section 31 of the Senior Courts Act 1981. Sub-section (2A) (a) requires the High Court to refuse relief in a judicial review application

“if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.

Sub-section (3B) provides that the Court may disregard sub-section (2A) (a) “if it considers that it is appropriate to do so for reasons of exceptional public interest”, though by sub-section (2C) it must formally certify that that is the case. Section 15 (5A) of the Tribunals, Courts and Enforcement Act 2007 provides that section 31 (2A) should apply also to the UT in the exercise of its judicial review jurisdiction and section 16 (3F), (3G) and (6B) provide for an exception to substantially the same effect as subsections (2B) and (2C). There are provisions applying the same test as sub-section (2A) (a) to applications for permission to apply for judicial review, as well as to the substantive claims: see section 31 (3C) and (3D) of the 1981 Act and section 16 (3C) – (3E) of the 2007 Act.

Section 31 (2A) is a provision which attracted some controversy at the time of its enactment. It was evidently intended to modify, at least to some extent and at least in

As Ms Anderson points out, UTJ Gleeson did in fact address the question of materiality:

That being so, we should only dismiss the appeal if we were satisfied that a Judge at the substantive judicial review hearing, having reviewed Mr Balajigari’s explanation and the documents offered in support of it, would be bound to refuse relief on the basis that, even if he had had an opportunity (a) to give an innocent explanation of the discrepancies and/or (b) to advance any points relevant to the “undesirability” or

“discretion” issues, it was inevitable, or highly likely, that the Secretary of State would (properly) have found that they were dishonest and decided to refuse leave. Element (b) is probably not significant in this case since Mr Biggs did not draw our attention to any factors likely to lead the Secretary of State to take the exceptional course of granting Mr Balajigari ILR even if he had acted dishonestly in the way found. The real question relates to element (a). As to that, we need only say that we are not satisfied that the Judge would have accepted the immateriality argument. In any event the issue is one that is properly determined by the UT, as the expert tribunal, with the benefit of oral argument and a fuller examination of the materials than has been possible before us.

Accordingly the correct course for us is to allow the appeal against the refusal of permission, grant permission, and remit the case to the UT to consider materiality, which is, on the basis of our earlier conclusions, the only outstanding issue.

It is possible that when the materiality issue is being considered by the UT the question noted at paras. 132-7 may arise – that is, of the extent of any difference in the threshold of materiality effected by section 31 (2A) in a case of this kind. Ideally it would be useful for us to consider that issue in this judgment. However, in circumstances where neither party has addressed any submissions to us about it we do not think it would be right to do so. We are in fact far from sure whether the issue will be of real importance on remittal in these cases. In the first place, the UT may well conclude that on the particular case the answer will be the same whichever test is applied. Even if there will in theory be cases where a “highly likely” test would produce a different result from an “inevitable” test, neither is truly hard-edged, and there might be thought to be room for a flexible approach depending on the nature of the unlawfulness alleged, so that the factors identified by Bingham LJ in Cotton remain relevant to the assessment. A different reason is that Mr Balajigari – and other claimants in similar positions – may now seek to rely on their article 8 rights, as discussed in Part B of this judgment, whether by amendment in these proceedings (if permitted) or in the context of a human

We have not so far dealt with Mr Balajigari’s other grounds of appeal – see para. 125 above. As regards the two grounds which depend on article 8 being engaged by the Secretary of State’s decision, it will be apparent from Part B of this judgment that we would agree that that is very likely to have been the case. But, as we have pointed out, no case based on article 8 was pleaded in the UT, and it cannot have been an error for UTJ Gleeson to proceed on the basis simply of “domestic” principles. That being so, it seems to us that she was right to refuse to admit the further documents which Mr Biggs sought to introduce, to the extent that they were relied on in support of his challenge to the decision itself; but they would in principle have been admissible on the issue of materiality had she found any procedural unfairness on the part of the Secretary of State.

The Appellants are Indian nationals. The First and Second Appellants are husband and wife. The Third and Fourth Appellants are their children, the former being born in India and the latter in the UK. The claims of Mrs Drabu and the children are dependent upon the claim of Mr Kawos.

Mr Kawos was born on 9 July 1981, and he first arrived in the UK on 24 January 2007, with entry clearance as a student valid until 31 October 2008. His wife and their first child joined him in October 2010. He was granted leave to remain until 8 November 2010 as a Tier 1 (Post-Study Work) Migrant; and then until 21 January 2013 as a T1GM.

On 17 January 2013, Mr Kawos applied for further leave to remain as a T1GM, supported by a letter from his accountants which confirmed that he had earned and been paid £37,042 in dividends in the year 25 December 2011 to 24 December 2012. He was granted further leave to remain until 9 February 2016.

On 3 February 2016, Mr Kawos attended the Solihull Premium Service Centre and made a further application for ILR. He brought with him a number of documents, including accounting information and a letter from his accountants. He was interviewed that day (Footnote: ¹¹). The interview lasted 18 minutes. At the start he signed a declaration that:

“I have been informed that the purpose of the interview was to obtain further details on the information which I provided in my application for further leave to remain in the UK.”

A handwritten note of the interview was kept by the immigration officer. The relevant questions and answers were as follows:

“Q5: Our records show that you declared to HMRC a figure of £12,000 from dividends, for the tax year 2012/2013. Yet, you have produced a SA302 for the tax year 2013 showing a figure of £29,555.00. Can you explain the discrepancy.

A: Initially that was the amount declared to HMRC (£12,000). Later we discovered that it was wrong (by we, accountant). The accountant in the same week in October we applied for an amendment. I can provide you with the proof of what we have declared to HMRC. Only when the amendments were made by HMRC in Dec.15/Jan.16 we were provided with the SA302’s.

Q6: When did you realise this mistake?

A: October 2015.

Q7: How did it come about?

A: Before preparing this application I was sorting through the documents from my 2013 extension. I gave this document to my accountant and it’s at that point the error came to light.

Q8: Is this same accountant used today?

A: Yes.

…

Q10: So, as far as you’re concerned all relevant earnings have now been declared to HMRC?

A: Yes. Everything. Honestly.

Q11: Can you provide evidence to show the error was picked up in October 2015 ?

A: Yes. I should have the documents in my car. Give me 10 mins.”

Despite that last question and answer it was Mr Kawos’s evidence in the proceedings that he was not asked to obtain the documents to which he referred and was instead given a letter telling him that further enquiries needed to be made.

It seems unlikely that any further enquiries were in fact made because the Respondent’s decision letter refusing the application was sent the same day. The refusal was under paragraph 322 (2) and (5) and also on the basis that the earnings declared were not “genuine” as required by paragraph 19 of Appendix A. The Reasons accompanying the decision letter (also dated the same day) refer to the declared earnings of £37,402 and continue:

“However, ‘HMRC’ records show that you earned/declared and paid tax on dividends of £8,000 for the financial year of 2011/12 and dividends of £12,000 for the financial year 2012/13.

You were interviewed at Solihull Premium Service Centre … on 3 February 2016. At the interview, you were asked to explain, at question 5, the reasons for discrepancies in ‘HRMC’ records in respect of your claimed earnings for 2012/13 (a copy of which you were provided with on the same day). You stated that your accountant discovered in October 2015 that the incorrect amount had been submitted and you subsequently made amendments. You provided HMRC returns at this interview to confirm that dividends of £8,888.00 were received for 2011/12 and dividends for £29,555.00 for 2012/13.

It is apparent that you have mislead ‘UKVI’ by declaring the amount of £37,402 as a Self-Employed person in support of your [T1GM] leave to remain application on 17 January 2013, which you claimed to have earned during the period 25 December 2011 to 24 December 2012. However, according to ‘HMRC’ records you only declared £8,000 for 2011/12 and £12,000 for 2012/13 as Dividends.

The fact that you have retrospectively declared part of these claimed earnings to HMRC is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration.

As the ‘HMRC’ records show considerable discrepancies in the amounts of Self-Employed earnings you have declared/paid tax on over the financial years, 2011/12 and 2012/13, it is apparent that you deliberately and wilfully mislead both the ‘UKVI’ and the ‘HMRC’ in order to inflate your earnings as part of the requirements to score points for previous earnings whilst pursuing your [T1GM] leave to remain applications.”

The Reasons conclude with three standard-form paragraphs in identical terms to those which conclude the Reasons in Mr Balajigari’s case (see para. 111 above.)

Mr Kawos applied for administrative review. He asked to be allowed to supply a letter from his accountant explaining the initial under-declaration. By letter dated 16 March 2016 the Secretary of State maintained his decision to refuse ILR. He was not prepared to accept the fresh evidence proffered, relying on paragraph AR.24 of Appendix AR of the Immigration Rules (see para. 61 above). An Enforcement Warning of the kind referred to at para. 80 above accompanied the administrative review decision. It included a section 120 notice requiring any additional reasons for wishing to remain to be made by submitting another application using the relevant form. As we understand it, no response was made to that notice, whether to raise an article 8 case or otherwise.

After pre-action protocol correspondence, Mr Kawos (Footnote: ¹²) issued a judicial review claim challenging the decisions of 3 February and 16 March 2016. The grounds were somewhat diffuse but were summarised by UTJ Kamara in the decision to which we refer below as follows:

“16.

Firstly, it was argued that the respondents’ refusal under paragraph 245 CD (b) with reference to paragraph 322 (2) was Wednesbury unreasonable; illegal (in that the respondent misdirected herself in law); procedurally unfair and failed to take into account relevant considerations. The applicant’s amended tax return was accepted as a genuine error by HMRC; did not result in any additional tax liability and was consistent with his previous earnings. It was contended that the respondent was required to show that the applicant deliberately and dishonestly made false representations as to his previous earnings, AA (Nigeria) v SSHD 2010 EWCA Civ 77 applied.

17.

Secondly, it was further argued that the Secretary of State's decision on the paragraph 322 (5) contained the same flaws. The point was made that the serious nature of the allegation and consequences for the applicant meant that the requirements of fairness were exacting in his case. It was contended that no allegation of dishonesty was put to the applicant during his interview with the respondent; the respondent failed to make adequate enquiries with HMRC and the response to the pre-action protocol incorrectly stated that a late payment was made.

18.

Thirdly, the respondent was alleged to have misdirected herself in law in relation to Appendix AR 2.4 in rejecting the evidence from the applicant’s accountant. The said letter was submitted to demonstrate a case working error as defined in paragraph 2.11 (a) (i) of Appendix AR. It was said that AR 2.4 (a) and (b) were met.

19.

Fourthly, and lastly, it was said that in assessing whether the applicant’s earnings were from genuine employment, the respondent misdirected herself in law in relation to paragraph 19 (j) of Appendix A and failed to take into account relevant considerations.”

No claim was advanced under article 8.

In his witness statement filed with the proceedings Mr Kawos gave an explanation of how the mistake in his tax return for 2012/2013 came to be made. He also filed a letter from his accountant dated 18 February 2016 recording that HMRC had not treated the

Permission to proceed was granted by UTJ Peter Lane (as he then was) at a hearing on 14 October 2016.

The substantive application was heard before UTJ Kamara on 6 March 2017. Mr Slatter appeared for Mr Kawos. By a decision sent to the parties on 4 May she dismissed the application. She emphasised that the question for her was not whether Mr Kawos had in fact acted dishonestly but whether it was Wednesbury-unreasonable for the Secretary of State to conclude, on the material before him, that he had: she referred to R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784, [2016] 1 WLR 4418, which confirms that that is the correct approach where the tribunal is not concerned with an issue of precedent fact (or a human rights claim (Footnote: ¹³)). For our purposes her reasons can be sufficiently summarised as follows.

At paras. 51-59 she considered the first two grounds together. She examined the nature of the original under-declaration and its correction, together with what she regarded as Mr Kawos’s inadequate explanation in interview. She held that that material was such that it was not Wednesbury-unreasonable for the Secretary of State to conclude that the applicant made false representations or that it was undesirable to permit him to remain in the United Kingdom owing to his conduct. As regards the interview, she said, at para. 56:

“The questions posed during the interview regarding the mismatch between the sums declared to UKVI and HMRC could not have come as a surprise to the applicant. Furthermore, the interviewing officer, after asking for an explanation, probed further by asking how the mistake had come about. The applicant, unarguably, had every opportunity to provide an explanation. … The respondent was not required to go further and put an allegation of fraud to the applicant during the interview.”

At paras. 60-61 she considered the fourth ground and held that the Secretary of State had not been obliged to consider fresh evidence on the administrative review because there had been no case-working error.

At para. 62 she rejected the fourth ground on the basis (to paraphrase) that even though it might not have been established that Mr Kawos’s declared current earnings were not genuine the point went nowhere because the refusal was justified under paragraph 322.

Mr Kawos appealed to this court on three grounds, namely:

“1.

The UTJ misdirected herself in law when judicially reviewing the Respondent’s decisions and alternatively, misapplied the law following the case of R (Giri) v SSHD [2015] EWCA Civ 784;

2.

The UTJ was wrong to find that the Respondent’s decisions were not vitiated by procedural unfairness;

3.

The UTJ erred in upholding the Respondent’s decision under para. 245CD (g) of the Immigration Rules ...”

With permission granted by McCombe LJ on 16 February 2018, Mr Kawos now pursues those grounds before us.

It is convenient to take the second ground first, and more specifically the complaint of procedural unfairness which forms part of it. This case is unlike Balajigari because of the interview which took place prior to the decision. Ms Anderson and Mr Malik submit that UTJ Kamara was right to find that that satisfied the requirements of procedural fairness by giving Mr Kawos the opportunity to explain the earnings discrepancy. There is obvious force in that submission. At first sight the Secretary of State did exactly what was required of him, by putting to Mr Kawos in interview the very discrepancy on which he based his subsequent decision. We agree with the Judge that it is not essential that he be told in terms that he was being accused of fraud: it would have been better if it had been put to him explicitly that the Secretary of State was minded to take the view that he had deliberately produced false figures either to HMRC in order to reduce his tax liability or to the Home Office in order to meet the minimum earnings requirement, but we accept that what was said was enough to put him on notice that that was the issue.

On balance, however, and not without hesitation, we do not agree with the Judge’s conclusion. Specifically, we do not believe that it was fair that Mr Kawos should have been expected to give detailed and definitive answers to an accusation of dishonesty without any prior notice. The contrary view seems to us to depend on the assumption that he must have known what the Secretary of State had in mind and should therefore have come prepared to face an interview in which he would have to give a detailed explanation of the original error in order to rebut an allegation of dishonesty; but if he was in fact innocent – which is the very question which the Secretary of State had to decide – why should he have anticipated any such thing ? A small but telling detail is that when he was asked to explain how the error was detected he said that he did not have the documents with him but could get them from his car – which he was not then given the opportunity to do.

Once that point is reached, the case becomes indistinguishable from Balajigari. The decision was vitiated by procedural irregularity. In those circumstances we need not consider the other aspects of ground 1 or the other two grounds. We should say, however, out of deference to the Judge’s careful judgment that, as regards ground 1, in the absence of any reliance on Convention rights she was right to proceed on the basis of a rationality review; and that we regard her conclusion on ground 3 as plainly correct.

There remains the question of materiality. The issue was not addressed as such by Judge Kamara but the material relevant to such a submission was fully before her, and

We would add, though this is not one of the pleaded grounds of appeal, that the

The Applicants are Indian nationals, and are husband and wife. Mrs Majumder’s claim for leave is dependent upon that of her husband.

Mr Majumder was born on 15 February 1987, and he first arrived in the UK on 27 October 2006, with an entry clearance as a student valid until 31 December 2009. He was granted leave to remain until October 2008 as a Tier 1 (Post-Study Work) Migrant; and then until March 2013 as a T1GM.

On 21 February 2013, he applied for further leave to remain as a T1GM, on the basis that in the year 20 January 2012 to 19 January 2013 he had earnings of about £40,000, including self-employed earnings of £12,761 as an IT consultant. That level of earnings gave him sufficient points for leave under the points-based scheme. He was granted further leave to remain until 27 September 2016.

On 19 July 2016, Mr Majumder attended the Sheffield Premium Service Centre and applied for ILR. In the questionnaire he completed, he answered “Yes” to question 9, which we have set out at para. 111 above. His application was refused that same day.

The Reasons accompanying the decision letter (again dated that same day) recited details of the income declared in the 2013 application for leave, and the response to question 9 of the questionnaire. They said that, however, information obtained from HMRC showed “No figures” for self-employment net income for the years 2011-12, 2012-13 and 2013-14. They continued:

“Were it accepted that the figures declared to the Home Office were an accurate representation of your self-employed earnings between 20 January 2012 and 19 January 2013, your actions in failing to declare your earnings in full to [HMRC] would lead your application to be refused under Paragraph 322(5) of the Immigration Rules based on your character and conduct.

The Secretary of State considers that it would be undesirable for you to remain in the United Kingdom based on the fact that you have been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration by failing to declare your claimed self-employed earnings to HMRC at the time and/or falsely representing your self-employed income to obtain leave to remain in the United Kingdom. Your application for indefinite leave to remain in the United Kingdom as a [T1GM] is therefore refused under Paragraph 322(5) of the Immigration Rules.”

It will be noted that the Secretary of State’s conclusion was based not on a declaration of false earnings but on a failure to submit tax returns at all.

Mr Majumder sought administrative review of that decision, saying that he had not sought to deceive anyone. He submitted online tax submissions and other documents from HMRC which showed that, on 26 March 2015, he had submitted a tax return for the year 2012-13 – the first time a tax return had been filed for that year – declaring his self-employed income of £12,761. The tax on that, together with a penalty of £450 and interest of £108.34, had been paid the following month. He also submitted a letter from his accountants, confirming the submission of the tax return and explaining its lateness as “due to some miscommunication”.

However, in a further decision letter dated 22 August 2016 the Secretary of State maintained the earlier decision. The Reasons said:

“We have checked the HMRC records we hold for yourself and they have confirmed that at the time of your application the total self-employed earnings declared for the tax years 2012/3 was £0. It is noted you submitted a tax calculation from HMRC with your application, which was printed on the 17/02/2016. However, the fact that you may have retrospectively amended your earnings is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with UKVI, HMRC or both organisations.

It is noted that you have submitted further documentation with your administrative review. However, we are unable to accept this as we deem it to be fresh evidence. Your application was considered and decided on the basis of the evidence submitted before the date on which the application was decided. We will not consider new evidence or information when reconsidering a decision that was provided after that decision has been taken, unless it meets the requirements specified in paragraph AR2.4 of Appendix AR of the Immigration Rules. It is your responsibility to ensure that all appropriate evidence is submitted with the application for leave to remain.

The evidence that you have provided with this application was not sent with the original application. It is not eligible for consideration because it is not evidence that:

•

was supplied previously but was not considered or considered incorrectly

•

proves that documents we assessed to be false were in fact genuine

•

proves the date of the previous application.

We are satisfied that the records we hold from HMRC are accurate and reflect your declarations to them. As a result, we maintain that it is not acceptable to submit earnings to UKVI and then subsequently not declare your full earnings to HMRC. We maintain that you had a personal responsibility to ensure that earnings submitted to UKVI to gain leave to remain corresponded with those declared to HMRC.

You claim in your administrative review that the UKVI has failed to exercise discretion when considering your case. You claim that as your application was refused under 322(5), the caseworker was obliged to seek an explanation or information from yourself before refusing your application. However, it is noted that during your appointment at Sheffield Premium Centre on the 19 July 2016 you completed a questionnaire in relation to your previous earnings. Question 9 asked: Are you satisfied that the selfassessment tax returns submitted to HMRC accurately reflected your self-employed income? to which you answered ‘yes’. We therefore maintain that you were given an opportunity to provide reasons as to why your tax returns were submitted late which you failed to do. We therefore maintain that your application has been considered fairly and in line with the Immigration Rules.

… You claim that the Secretary of State has asserted that from the evidence your actions were deliberate which you claim ‘is irrational’. Careful consideration has been given to this point. However, our response is that the refusal under paragraph 322(5) is appropriate due to your conduct in declaring inconsistent earnings to UKVI and HRMC. Moreover, we are satisfied that a decision has been reached on your application fairly and in line with the Immigration Rules.

Further in your administrative review, you claim that we should [have] exercised evidential flexibility under paragraph 245AA of the Immigration Rules and requested an explanation from yourself for the discrepancy. However, as outlined above we maintain that you were provided with an opportunity to provide an explanation in the questionnaire you completed at Sheffield Premium Centre which you failed to do so. Moreover, it is noted that in your administrative review you have not provided an explanation as to why your tax returns were submitted significantly late.”

After the usual pre-action correspondence, which bore no fruit, Mr Majumder sought judicial review of those decisions to refuse his application, and maintain that refusal, on three grounds:

Permission to proceed was granted by UTJ Finch following a hearing on 25 May 2017. However, on 25 September 2017 UTJ Frances refused the substantive claim. His essential reasoning was:

On 23 September 2016 Mr Majumder made a further application for ILR on the basis of long residence rather than under the PBS. We have not seen that application. It was refused on 5 February 2018 on the basis of paragraph 322 (5). He had a right of appeal against that decision on the basis that it constituted the refusal of a human rights claim.

On 13 November 2018, the FTT (FTTJ Wyman) allowed Mr Majumder’s appeal. The main issue on the appeal was whether the Secretary of State had satisfied the burden upon him to show that Mr Majumder had been dishonest. The Judge found that his failure to submit his tax return on time was “an innocent mistake” (para. 55); and that “there is no suggestion that [his] behaviour calls into question his character and/or conduct to the extent that it is undesirable to allow him to enter or remain in the United Kingdom” (para. 52). Since the Secretary of State relied exclusively on the failure to submit the tax return on time as behaviour falling within the scope of paragraph 322 (5), that conclusion inevitably followed the Judge’s finding of fact.

Mr and Mrs Majumder are thus now expected to be granted ILR. It was suggested by Ms Anderson that in those circumstances the appeal before us has become academic; but we do not agree. Mr Majumder through Mr Karim maintains that the UT’s determination is wrong, and he is entitled to at least a declaration to that effect; but in any event there are practical consequences of allowing it to stand, because Mr and Mrs Majumder have a costs order against them for over £4,000. That is not simply a debt – if they do not pay it, it may have adverse consequences for their immigration status in the future. Indeed, although there has been a subsequent tribunal finding that Mr Majumder was not dishonest, the earlier finding that he had been dishonest may also be unhelpful in any further consideration of his immigration status. There is therefore some real practical purpose to determining this appeal.

The decision taken in Mr Majumder’s case was plainly flawed for essentially the same reasons as in Balajigari, but we will summarise the points for completeness and in order to deal with one or two particular features of his case.

First, there was a clear breach of the duty of procedural fairness by the Secretary of State in determining the application on the basis of a finding that Mr Majumder was dishonest without giving him a proper opportunity to rebut that allegation. The administrative review did not give him an opportunity to rebut the assertion, because he was not allowed to rely on any further evidence.

Ms Anderson and Mr Malik submit that Mr Majumder was aware of the failures in question (here, the late filing of tax returns) and also that question 9 in the questionnaire gave him an opportunity to acknowledge and explain that failure. We reject that submission, for the same reasons as in Balajigari: he cannot reasonably have been expected to defend himself against a charge of dishonesty that had not been made. And in Mr Majumder’s case there is the further feature that there was and is no evidence that any tax return submitted by him was inaccurate. The only possible basis upon which dishonesty could be asserted was that he had been late in submitting his 2012-13 tax return, which was not the subject of any questions in the questionnaire.

Secondly, although the wording of the Reasons is opaque, the effect of the two paragraphs quoted at para. 168 above is that the fact that Mr Majumder had failed timeously to file tax returns in a year where earnings had been declared to the Home Office by itself justified the conclusion that he had been “deceitful and dishonest”. That is the wrong approach, for the reasons explained at para. 42 above; but the case is a fortiori since Mr Majumder had not mis-declared his earnings but had simply made no tax return at all, which is a less obvious basis for suspecting dishonesty. But the essential point is the same: if the Secretary of State suspected dishonesty he could not proceed directly from that suspicion to a finding.

Thirdly, again the Reasons do not contain any balancing exercise of the kind discussed at para. 39 above.

We should also say that we see force in Mr Karim’s submission that in the Reasons for the administrative review decision the Secretary of State proceeded on an incorrect factual basis in a number of respects. For example, there is reference to Mr Majumder having “retrospectively amended” his earnings (which he did not); and also that he had declared earnings to the Secretary of State and subsequently not declared them to HMRC, which, again – whether this comment was made concerning 2013 (when the tax return was not due) or 2016 (after it had been filed) – is simply incorrect. The Reasons appear to have treated this as a case where Mr Majumder had made an underdeclaration of income to HMRC and later amended it upwards. It is very likely that the case-worker was using a template for such claims, in which case it is an illustration of the perils of the unthinking use of such templates; but in any event it betrayed a failure to engage with the issue to which this particular case gave rise.

The post-hearing submissions challenge the cogency and credibility of Mr Majumder’s explanation of his failure to file the returns in question, and raise the same immateriality point as in Balajigari. That argument cannot succeed in the light of the decision of the FTT that the failure to file the returns was an innocent mistake.

Accordingly, we would allow the appeal and quash the Secretary of State’s decision.

Mr Albert is a national of Pakistan and was born on 4 November 1987. He entered the UK on 12 October 2006 as a student with entry clearance valid from 28 September 2006 until 31 October 2009. On 5 March 2009 he applied for further leave to remain as a Tier 1 (Post Study Work) migrant. That leave was granted until 2 April 2011. He made further successful applications for further leave to remain as a T1GM on 11 February 2011 and on 2 March 2013, the latter expiring on 24 March 2016.

On 29 February 2016 Mr Albert made an application for ILR. This was refused on the same day, under paragraph 322 (5). We do not have a copy of this decision, but it is apparent from the events which followed that it relied on the earnings discrepancies detailed below and concluded that they were “deceitful and dishonest”. An administrative review of that decision was rejected on 6 April 2016.

On 25 April 2016 Mr Albert made a fresh application for ILR, supported by a letter from his solicitors, Farani Javid Taylor, dated 21 April 2016. The letter explicitly addressed the basis on which the earlier application had been refused, saying that the discrepancies were not dishonest and were the result of “genuine mistakes” about what expenses he had been entitled to deduct. It attached a good deal of supporting material including a letter from accountants whom he had recently instructed, FSL Accountancy: they had prepared corrected returns which had been sent, with a further payment, to HMRC.

That application was refused on the same day, again under paragraph 322 (5). An administrative review of that decision was rejected on 2 June 2016.

On 22 July 2016 Mr Albert applied for judicial review of the decisions dated 25 April and 2 June. On 18 August UTJ Martin granted permission. His reasons were:

“It is arguable that the respondent may have failed to take into account relevant matters, in particular the applicant’s explanation for having filed incorrect tax returns and the fact that he has since filed amended returns and paid the outstanding tax … The respondent refused an earlier application in February 2016 for the same reason and it is at least arguable that in deciding the second application she has relied too heavily on her earlier decision and not given proper scrutiny to the documents and submissions accompanying the current application.”

On 19 October 2016 the Secretary of State agreed to a consent order by which Mr Albert’s application for ILR would be reconsidered within six months.

On 2 March 2017 Mr Albert’s application was again refused on paragraph 322 (5) grounds. An administrative review of that decision was rejected on 6 April 2017. It is those decisions that are challenged in the current proceedings.

We take in turn the original decision and the later decision taken in consequence of the consent order.

In the Reasons accompanying the refusal letter it was noted that Mr Albert’s application for ILR dated 11 February 2011 included a claim that he had earnings of £43,230.55 (partly from employment and partly from self-employed income) between 1 February 2010 and 31 January 2011, for which he was awarded 25 points under the points-based system; but that information held on his declared earnings with HMRC showed that his total earned income between April 2009 and April 2011 was £31,972. Likewise it was noted that in his T1GM application dated 2 March 2013 Mr Albert claimed earnings of £40,308.82 (comprising employed income of £23,290.82 and self-employed earnings of £17,018) between 1 February 2012 and 31 January 2013, for which he was awarded 25 points; but that information on his self-employed earnings declared to HMRC for the relevant tax years confirmed that in 2011/12 no self-employed earnings were submitted to HMRC, that for the year 2012/13 gross self-employed turnover of £19,300 resulted in a net profit of £1,891 only, and that for the year 2013/14 there were no selfemployed earnings submitted to HMRC.

The Reasons acknowledge that, “after being asked to provide an explanation for these discrepancies” (Footnote: ¹⁴), Mr Albert had declared the claimed self-employed earnings to HMRC. However, they continue:

“… The fact that you have retrospectively declared these claimed earnings to HMRC is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration.” 194.The Reasons continue:

“Were it accepted that the figures declared to the Home Office were an accurate representation of your self employed earnings between 22 December 2011 until 25 November 2012, your actions in failing to declare your earnings in full to HM Revenue & Customs would lead your application to be refused under

The Reasons accompanying the second relevant refusal of ILR, dated 2 March 2017, noted that Mr Albert had declared to UKVI self-employed earnings of £4,511 in the period from 1 April 2010 to 31 January 2011, which straddled the two tax years 2009/10 and 2010/11. He had declared to UKVI self-employed earnings of £17,018 in the

The Reasons went on to refer to the fact that that Mr Albert had submitted a letter from FSL Accountancy and had submitted revised self-assessment returns to HMRC. It was said that careful consideration had been given to the information provided to UKVI and to HMRC. It was clear that the initial information that he had provided to HMRC about his earnings was significantly different from the information provided to HMRC [sic]. It was noted that the revised tax returns had only been submitted on 19 April 2016, after the application for settlement of 29 February 2016 had been refused.

The Reasons continue:

“You state that you became aware of the errors in your tax returns after the refusal of your settlement application and contacted FSL Accountancy to review your income and expenses for the tax years 2009/10, 2010/11 and 2012/13.

You state you had initially submitted your tax return without the assistance of an accountant and that you made errors on your original HMRC tax return for 2012/13 by including nonallowable expenses, and have provided a list of those expenses. You have not provided a specific explanation for the errors on your original tax return for 2010/2011, nor for your failure to initially declare income from self-employment in 2009/10.

Consideration has been given to the explanation provided, and to your statement that HMRC are not pursuing any action with regard to the amended submissions. However it is clear that when applying for your Tier 1 General visa in February 2011 and again in March 2013 you were certain of the level of profit you had made from self employment and that it did not contain expenses where the payment constitutes a reimbursement for monies the applicant has previously outlaid, which are classed as unearned income and thus not considered as part of earnings when considering an application for leave to remain, but when submitting your tax returns over the same periods, you would have included such expenses. Your explanation that this was a genuine error when completing your self-assessment tax return is therefore not accepted.

Your actions in declaring different amounts of income to HMRC and UKVI lead to the conclusion that in light of your character and conduct it would be undesirable to allow you to remain in the United Kingdom. Your character and conduct with regards to declaring your income would lead to a refusal of your application under General Grounds Paragraph 322(5) of the Immigration Rules. Whilst a refusal under Paragraph 322(5) of the Immigration Rules is not a mandatory decision, the evidence submitted does not satisfactorily demonstrate that the discrepancy between the amount of self employed earnings declared to HM Revenue and Customs and the amount declared on the application for leave to remain in the United Kingdom as a Tier 1 (General) Migrant were genuine errors. It is noted that there would have been a clear benefit to yourself either by failing to declare your full earnings to HM Revenue & Customs with respect to your tax liability or by falsely representing your earnings to UK Visas & Immigration to enable you to meet the points required to obtain leave to remain in the United Kingdom as a Tier 1 (General) Migrant. Given these factors it is considered a refusal under Paragraph 322(5) of the Immigration Rules is justified.”

The application for administrative review was made on 9 March 2017. Mr Albert’s complaint was that, notwithstanding the basis on which UTJ Martin’s order had been made, the caseworker had in substance again failed to take into account the materials supplied with the application of 25 April 2016. It said in terms: “I am NOT providing any new information or facts”. That may not have been strictly accurate, because Mr Albert had at some point also submitted evidence that HMRC had not imposed any penalty in relation to the original under-declarations; but nothing turns on this.

The Secretary of State’s refusal of the administrative review application begins by saying:

“You have argued that the caseworker who produced the reconsidered decision letter has simply reproduced the same refusal reasons as included on the initial decision letter, without taking into account the findings of the JR permission hearing. However we note that Judge Martin only granted permission to proceed with the JR. No conclusive determinations were promulgated following any substantive hearing regarding the issues in dispute. The SSHD agreed to reconsider the case, but as with any reconsideration, no new evidence is introduced. It is therefore entirely unsurprising that, based on exactly the same evidence, another caseworker evaluating your case arrived at the same conclusions and refused your application for the same reasons.”

That is not well expressed. It reads as if Mr Albert had been attempting to rely on fresh evidence produced since the original application, whereas he had said in terms that that

However, the Reasons do go on to address the complaints made in the application for administrative review and thus the application generally. The structure involves considerable repetition, and it is unnecessary to set the reasons out in full, but it is necessary to quote some passages, as follows:

“The caseworker has correctly identified undesirable conduct and therefore 322(5) would be an appropriate rule when considering this conduct. The initial failure of you [sic] to correctly provided [sic] accurate information to government departments cause the caseworker to question your character and conduct … As previously stated, the initial discrepancies in the income you submitted to UKVI and declared to HMRC were enough to cast doubt in the Secretary of State’s mind on your character and conduct. It is deemed that due to your character and conduct it would not be conducive to the public good to allow you to remain indefinitely in the UK.”

After making a particular criticism of the plausibility of one aspect of Mr Albert’s explanation of the discrepancy, the Reasons continue:

“… This casts doubt further doubt on your credibility, adding to the concerns of the Secretary of State ... Whilst all the evidence provided with your applications has been assessed accurately, the information you have provided is insufficient to relieve the Secretary of State of doubts regarding your income discrepancies declared to HMRC. The benefits of this are clear and as such, we maintain that based on your character and conduct when dealing with other government departments it is not desirable to allow you to remain in the UK.”

After referring again to the information that shows the discrepancies, the Reasons continue:

“Based on this and taking into account the clear advantage to you either by reducing your income to reduce your tax liability, or by inflating your earnings to insure a grant of leave, it is deemed that your character and conduct when dealing with government departments is questionable. This justifies a refusal under Paragraph 322 (5).”

On 17 May 2017 Mr Albert submitted a second application for judicial review challenging the decisions of 2 March and 6 April 2017.

That application was refused on the papers by UTJ Frances on 8 August 2017 (in an order sealed on 19 August). The renewed application for permission to bring a claim for judicial review was refused by UTJ Coker following an oral hearing on 30 January 2018.

The way in which the application for permission to bring a claim for judicial review was presented before UTJ Coker (Mr Albert was then acting in person) was that the “core” of the claim was “that the decision taken by the Secretary of State … [under] paragraph 322 (5) was either irrational or unreasonable”: see para. 3 of her judgment. UTJ Coker came to the conclusion that that argument should be rejected. She was of the view that it was “plainly open” to the Secretary of State to reach the conclusion that she did (para. 5); that the Secretary of State had taken account of the explanation that

Before this Court we have had the advantage of both written and oral submissions made by Mr Saini on behalf of Mr Albert. Those submissions have been much more detailed.

On 19 April 2017 Mr Albert made a further application for ILR, this time under paragraph 276B of the Immigration Rules, on the basis of ten years’ continuous lawful residence. That application was refused both on the basis that he did not satisfy the residence requirement, by reason of intervals in his residence in the UK when his leave had expired and by reference to paragraph 322 (5) on the same basis as his previous applications.

That refusal was accepted by the Secretary of State as involving the refusal of a human rights claim, with the result that Mr Albert was entitled to an appeal to the FTT. The appeal was heard by FTTJ Smith on 26 June 2018. We need not set out the totality of his reasoning, but he found both that Mr Albert did satisfy the residence requirement and that the Secretary of State had not proved that Mr Albert, whom he had heard crossexamined on the explanation for the earnings discrepancies, had acted dishonestly. He accordingly allowed the appeal.

The Secretary of State appealed to the UT. The appeal was heard by DUTJ Mandalia on 6 December 2018. At the time of the hearing before us it was known that he had decided that FTTJ Smith had made an error of law in relation to the continuous residence issue, but his decision on the paragraph 322 issue was not known. It was only on 8 March 2019 that he promulgated a decision allowing the appeal on both points and remitting the underlying appeal to the FTT for a fresh hearing. Since we are told that Mr Albert has now made an application for permission to appeal to this Court, it would be wrong of us to embark on any analysis of DUTJ Mandalia’s decision.

Ms Anderson submitted that the consequence of those developments, at least as known at the time of the hearing, was that Mr Albert’s appeal was academic. We are not sure whether she would have made that submission had she been aware of DUTJ Mandalia’s

This appeal is unlike the others in that, because of the particular history of Mr Albert’s applications, the absence of a “minded to” letter does not render the impugned decision procedurally unfair. The Secretary of State refused his earlier application, of 29 February 2016, on the explicit basis that his original returns to HMRC had been dishonest. His solicitors took the opportunity of the letter accompanying his fresh application of 25 April 2016 to explicitly address that allegation. The Secretary of State in his decision of 2 March 2017, and in the subsequent administrative review decision, had regard to the explanation which they proffered. Accordingly, even if a claim based on procedural unfairness had been advanced before UTJ Coker it could not have succeeded.

We are, however, very troubled by the terms of the Reasons given for both decisions. In neither set of Reasons does the Secretary of State state in terms that he has found the discrepancies to be the result of dishonesty. Instead, the Reasons for the administrative review decision repeatedly use language which suggests a lesser threshold. In the first of the passages quoted at para. 201 above they refer to “undesirable conduct”, which is plainly the wrong test; the succeeding passages are couched in terms of the Secretary of State’s “doubt” and “concerns”; and the final passage quoted “deems” (which is an odd word in this context) Mr Albert’s conduct to have been “questionable”, which is certainly short of a finding of dishonesty.

We fully acknowledge that some of the other passages in both sets of Reasons would appear clearly to imply a finding of dishonesty – specifically, the rejection of the explanation of “genuine error” and the observations to the effect that Mr Albert had a motive to submit “false” figures – and we have considered anxiously whether the correct view, reading the Reasons as a whole, is that it is sufficiently clear that the Secretary of State did find dishonesty and that the passages suggesting otherwise simply represent loose language: we have to say that these letters generally are poorly drafted. We have come to the conclusion, however, that it is at least seriously arguable that there was a substantive misdirection here. If, as we have held above, paragraph 322 (5) can only be relied on by the Secretary of State where he has made a positive finding of dishonesty, we regard it as important that it be quite clear that such a finding has indeed been made: there may perhaps be cases where that is indeed clear even if the words

“dishonest” or “deceit” are not actually used, but the benefit of any doubt must go to the applicant. Quite apart from anything else, using the right language ensures that caseworkers face up to the seriousness of the finding that they are making. In our view there is a real doubt here about whether the caseworkers understood what they had to find.

We have also considered anxiously whether it would be right to allow Mr Albert’s appeal on this basis when the case does not appear to have been argued this way below

There remains the issue of materiality. In circumstances where the FTT has already found that the discrepancies were not dishonest we do not see how we could dismiss the appeal on the basis that it was inevitable, or highly likely, that the decision would have been the same if the Secretary of State had directed himself correctly. It is true that that finding was overturned on appeal, but the UT remitted the issue rather than deciding it for itself. Of course, since the appeal is only against the refusal of permission the issue of materiality can in theory be considered at the substantive hearing in the UT, but in practice it is likely to be decided one way or the other by the outcome of the separate FTT proceedings – as to this, see para. 218 below.

We would add, though this is not one of the pleaded grounds of appeal, that the Secretary of State’s Reasons were also formally vitiated by a failure to consider explicitly whether, even if Mr Albert had been clearly, and legitimately, found to have been guilty of dishonest conduct rendering his continued presence undesirable, there were nevertheless reasons why leave to remain should have been given in the exercise of the “second stage” discretion. But we need not pursue the point further since no grounds for the exercise of this exceptional discretion have been advanced.

Having reached this point, we need not consider the pleaded grounds of appeal in full. To some extent they depend on the contention that the Secretary of State was obliged to ascertain from HMRC whether any penalty had been imposed on Mr Albert: that argument cannot be sustained in the light of our conclusions at paras. 72-76 above. But we should mention one other ground advanced by Mr Saini which we do not consider to be arguable. He submits that the refusal letter of 2 March 2017, which we have quoted above, accepted that points should be given to Mr Albert for various matters, which included his earnings. It would therefore appear that the Secretary of State accepted that his earnings were genuine and so, submits Mr Saini, it would not be open to him to contend that they were not genuine under paragraph 19(i) of Appendix A to the Immigration Rules. However, in our view, that submission does not meet the point made on behalf of the Secretary of State that, although Mr Albert’s earnings may have been correctly declared to the Secretary of State, what had been declared in the past to HMRC was inaccurate. It was that discrepancy which was relied on by the Secretary of State to justify reliance on paragraph 322 (5) and, in principle, that course was available.

For the above reasons we propose to allow the appeal against the decision of UTJ Coker refusing permission to bring a claim for judicial review. That claim will have to be remitted for consideration at a substantive hearing, on the basis at least of the issue which we have identified at paras. 211-212 above. The original grounds of claim are not professionally pleaded and are unsatisfactorily discursive. Mr Albert may wish to seek permission to amend in order to raise other grounds. Plainly he cannot rely on any ground which we have held to be bad in law; but, for the avoidance of doubt, we are not to be treated as having expressed any view either way on the actual reasoning on which UTJ Coker refused permission. We are certainly not critical of her reasoning,

Ms Anderson submitted that since Mr Albert is now exercising an alternative remedy through the FTT appeal route, refusal of relief would be mandatory in the judicial review proceedings. We agree that it may well be appropriate to stay further proceedings in the remitted judicial review proceedings until it is known whether the decision of DUTJ Mandalia stands and, if it does, until the outcome of the remittal hearing in the FTT. But the inter-relation of the issues in the two sets of proceedings needs to be considered with some care; and that is not an exercise which it is for us to perform. The parties will hopefully be able to agree sensible case management directions, at least once it is known whether Mr Albert has permission to appeal against DUTJ Mandalia’s decision. If they cannot, appropriate directions will have to be made by the tribunals themselves.

The formal result is that each of these four appeals will be allowed. In all save Majumder the case will be remitted to the UT; in Majumder the decision of the Secretary of State to refuse ILR is quashed.

However, in broader terms the effect of our reasoning can be summarised as follows.

First, as discussed in Part A of this judgment, the approach taken by the Secretary of State in deciding to refuse the applications for leave to remain in each of these cases on paragraph 322 (5) grounds – which we take to have been his general approach in all earnings discrepancy cases – was legally flawed (except, for particular reasons, in Albert). This is principally because he proceeded directly from finding that the discrepancies occurred to a decision that they were the result of dishonesty, without giving applicants an opportunity to proffer an innocent explanation. But nor does he address the further questions of whether the dishonesty in question renders the presence of the applicant in the UK undesirable or whether there are other factors which outweigh the presumption in favour of removal, or give applicants the opportunity to raise any matters relevant to those questions: such cases will no doubt be exceptional, but the step cannot simply be ignored. The availability of administrative review is not an answer, not least because the applicant is not normally allowed to produce evidence that was not produced before the original decision. That unlawfulness can be avoided for the future by the Secretary of State adopting a “minded to” procedure, which informs applicants of his concerns and gives them the opportunity to show cause why ILR should not be refused by offering an innocent explanation of the discrepancies (which will need to be particularised and documented so far as possible) and/or drawing attention to matters relevant to the “undesirability” or “discretion” issues. In Albert there was (at least arguably) a distinct unlawfulness, in that the Secretary of State failed to make an explicit finding of dishonesty.

Secondly, those defects need not lead to a paragraph 322 (5) refusal being quashed if the UT is satisfied that they are immaterial – that is, that the result would have been the same even if the applicants had been given an opportunity to explain the discrepancies; and it is principally in order to consider that question that we have remitted three of the

The two previous points are determinative of the present appeals because the Appellants have in these proceedings challenged the paragraph 322 (5) refusals only on conventional public law grounds. But we have expressed the view in Part B above that if the applicant enjoys a private or family life in the UK which is protected by article 8 of the European Convention on Human Rights – which is likely to be so in the typical case – the notice of liability to removal which is the consequence of refusal of ILR will constitute an interference with those rights which the Secretary of State will have to justify. If the earnings discrepancies relied on were in fact the result of dishonesty that will normally be sufficient justification, but his decision on that question will be reviewable as a matter of fact, whether in the context of a “human rights appeal” or, where no such appeal is available, in judicial review proceedings: the circumstances in which an appeal will be available are considered in Part C.