Taj, R (On the Application Of) v The Secretary of State for the Home Department

This appeal concerns the application of the common law principle of procedural fairness to a points-based system (“PBS”) for determining whether a person should be granted leave to remain (“LTR”) in the United Kingdom as a Tier 1 (Entrepreneur) Migrant as set out under Paragraph 245DD of the Immigration Rules (“the Rules”).

In particular the appeal concerns the application to the PBS of the fifth and sixth of the well-known principles of administrative fairness set out by the House of Lords in Doody [1994] 1 AC 531 at page [560] (“Doody”) which concern the right of a person affected by a decision to make representations to the decision maker before the decision is taken and the right to know the “gist of the case that he has to answer”:

“Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.” And:

“Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.”

Very shortly before the oral hearing in this appeal, the Supreme Court handed down judgments in Pathan v SSHD [2020] UKSC [41] (“Pathan”) in which the Court addressed the application of principles of procedural fairness to a PBS relating to student visas, and held (by a majority), on the facts, that there had been a breach. The majority judgments clarify a number of issues of relevance to the present appeal. In the light of these judgments Mr Malik, counsel for the Appellant, helpfully refined his submissions. In this judgment I address the reframed case.

In the present case the Appellant was refused LTR upon the basis that a variety of facts about his application, in which he claimed to be running a successful small business, were inconsistent or inaccurate and gave rise to concerns that the business was not genuine. To come to this conclusion, the Respondent undertook a paper review of the application and supporting evidence and an interview was then held with the Appellant, during which a series of questions about the business were asked. This was accompanied by what was, in effect, a site inspection of the Appellant’s business premises. At the culmination of this process, the Respondent had concerns about the viability and genuineness of the business in question and refused the application for LTR in a decision letter dated 5^th April 2018 (“the Decision”). That Decision was upheld in judicial review proceedings. This is the appeal against that judgment.

The Appellant argues in this appeal that this three-part system of evaluation (paper assessment of application, interview, on-site visit) was procedurally unfair. The Respondent has an obligation to provide notice of “concerns” it holds either (a) because such an obligation is needed to ensure that the PBS is procedurally fair; and/or (b) because the concerns related to the truthfulness of the Appellant’s account, and in such cases, the Respondent is required to make clear to an applicant that the account is not believed so that the applicant can address those doubts and concerns.

Fairness can be achieved by giving notice during the interview or during the visit or subsequently, for example in a second interview or in a “minded to refuse” letter. The Supreme Court in Pathan has confirmed that the Doody principles apply to a PBS, such as that applicable in this case, and the failure to afford the Appellant a chance to address these concerns meant that the procedure adopted was unfair and the resultant decision unlawful.

The Respondent disagrees and argues that the object behind a PBS is largely to replace discretion with clear, objective criteria. It reduces to the minimum the scope for individualised discretion. The way in which the criteria are drafted are transparent and suffice to enable an applicant to know the case that must be met, and all applicants are given a full and fair opportunity to present the best case that they can. If an applicant cannot meet those criteria then it follows, ineluctably, that the application fails. The converse also applies: if the criteria are met then the application is granted. A properly drawn PBS encapsulates transparency and fairness in its very structure. There has to be finality in this process. There is no right for such an applicant to be accorded repeat attempts to plug gaps and cure deficiencies or address concerns that the account being given is untruthful. The PBS is procedurally fair and the refusal Decision lawful, as the Judge correctly found.

In order to understand the appeal, it is necessary to provide a description of the PBS. The requirements for LTR as a Tier 1 (Entrepreneur) Migrant are set out under Paragraph 245DD of the Rules. The test is drafted in binary terms: an applicant either satisfies the test and is granted LTR or fails in which case it is refused. The duty is placed upon the applicant to meet the requirements. An applicant must satisfy the Respondent that the application and the evidence tendered in support of it are “genuine”.

The factual matters about which the Respondent must be satisfied are clearly set out in the Rules and include: the ability of an applicant to become a director of one or more businesses in the UK; that the applicant has adequate available finance which will be available at all relevant times to be invested in the business; that the applicant does not intend to take other employment in the United Kingdom. In support, an applicant must provide a business plan which includes how the applicant “expects to make his business succeed”.

In assessing evidence submitted as part of an application, including as to the genuineness of the business, the Respondent evaluates the evidence on the “balance of probabilities”. The Secretary of State may take into account the following factors:

Paragraph 245DD provides:

“245DD. Requirements for leave to remain

To qualify for leave to remain as a Tier 1 (Entrepreneur) Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

(a)

The applicant must not fall for refusal under the general grounds for refusal, except that paragraph 322(10) shall not apply, and must not be an illegal entrant.

(b)

The applicant must have a minimum of 75 points under paragraphs 35 to 53 of Appendix A.

(c)

The applicant must have a minimum of 10 points under paragraphs 1 to 15 of Appendix B.

(d)

The applicant must have a minimum of 10 points under paragraphs 1 to 2 of Appendix C. …

(h)

Where the applicant is being assessed under Table 4 of Appendix A, the Secretary of State must be satisfied that:

(i)

the applicant genuinely: (1) intends and is able to establish, take over or become a director of one or more businesses in the UK within the next six months, or (2) has established, taken over or become a director of one or more businesses in the UK and continues to operate that business or businesses; and

I have referred to the fact that the Respondent might adopt a multi-partite procedure which can include an interview. The questions posed and answers given during the interview in this case are in the court bundle. The questions are pro forma, in the sense that they are not specifically drafted to cater for the individual circumstances of an interviewee, but it is also clear from the template that the interviewing officer is able to ask supplementary questions. In other words, the questioning is not entirely mechanical and incorporates some flexibility to cater for individual circumstances.

The questions are comprehensive. There are 48 headline questions, but many have multiple sub-parts to them. The questions (logically, given that the purpose of the interview is to test the credibility and genuineness of the applicant’s business) cluster around a small number of main issues or topics. It is worth summarising the issues covered by the questions. There are questions designed to obtain general information on the applicant and the business including: the name of the business; its date of incorporation; its trading address and the length of time that the business has traded from that address; whether the premises are owned or rented and if the latter, the terms of the lease; whether at the identified address there is actual evidence of observance of Companies House rules (e.g. concerning the erection of a sign showing the company address and other required information); the insurance position of the business; and the existence of health and safety requirements put in place at the business premises.

There are also questions about the viability or credibility of the business including:

There are questions on the employment practices of the business including: the number and identities of all employees; their longevity in employment; their rights and other entitlements; applicable rates of pay; whether they have joined the Work Place Pension Scheme; as to the methods used in their recruitment; and whether employees work from the business premises or from home and if the latter, how they are managed and how the applicant keeps in contact with them. And there are questions seeking relevant documentation, including those demonstrating that the business has been registered with the appropriate authorities, such as Companies House and HMRC.

At the end of the interview the applicant is asked to confirm that, in effect, an adequate opportunity has been given to enable the applicant to provide all of the information and evidence that they wish.

The interview may be followed up by an on-site inspection by an investigating officer. In the present case, the interview was held at premises chosen by the Appellant, said to be the business office, and the opportunity was taken for the officer to view the premises.

The Respondent has published a detailed (118 page) guide to the application process entitled “Tier 1 (Entrepreneur)”. The latest version (Version 24.0) is dated 29^th March 2019. The Guide is based upon Paragraphs 245D and DF of the Rules and paragraphs 35-53 of Appendix A. This identifies every aspect of the test and describes the evidence that the Respondent is seeking from an applicant. It sets out at length what the Respondent is looking for when determining whether an application is “genuine”.

I turn now to the fact of the instant appeal. The Appellant is a citizen of Pakistan and was born on 11^th January 1988. He was granted leave to enter the United Kingdom as a Tier 4 (General) Student, on 18^th December 2009 valid until 17^th February 2011.

On 24^th February 2011 he was granted LTR in the United Kingdom as a Tier 4 (General) Student until 23^rd November 2011. On 15^th December 2011 he was granted LTR in the United Kingdom as a Tier 1 (Post-Study) Migrant until 15^th December 2013. On 26^th February 2014 he was granted LTR as a Tier 1 (Entrepreneur) Migrant until 26^th February 2017.

On 22^nd February 2017 the Appellant applied for LTR to remain as a Tier 1 (Entrepreneur) Migrant under PBS and for a Biometric Residence Permit. An interview and site visit took place in late 2017 at the trading address specified by the Appellant for the business relied upon in his application (“T2MC Limited”). This was at 359 High Road, Ilford, IG1 1TF (an estate agent office on the main high street in

By letter dated 5^th April 2018, the application for a further visa as a Tier 1

With regard to the credibility of the Appellant’s business activity in the United Kingdom, he had named two clients, Avid Support Limited (“Avid”) and Core

However, no details of Avid Support Limited were found at Companies House matching the details stated on his contract with them or, any details he had provided about them during the interview. There was a company listed as Avid Support Ltd whose details differed significantly from the details shown on his contract. It was noted that their address on the contract was said to be 414B, 4^th Floor, Victoria House, Victoria Road, Chelmsford, CM1 1JR, and the contract was signed by Imad Masood.

In addition, the Respondent could not find an online presence for Avid such as a website, even though the Appellant claimed to have created a web design for them.

The Appellant had been asked to provide details of market research he had carried out prior to investing in his business. He said that he had researched local businesses such as Core Atlantic to find out what they needed and how he could provide it. In relation to the results of this research he said: “Very positive especially after Brexit (sic). All companies are looking for staff. Core Atlantic Ltd very short of staff”. This answer contrasted with previous responses and also with the contracts he had provided with regard to the nature of the work he claimed to conduct. The response called into question his earlier responses as to the type of work carried out for Core Atlantic.

The Home Office visiting officer, who conducted the interview, had observed that there was no visible sign at the premises displaying his company name. The

The Appellant explained that his employees worked mostly from his business premises but occasionally from home. No health and safety measures were in place at the business premises. The interviewing officer observed that the office was very small and questioned the feasibility of two employees and a director conducting work in such a space.

On 18^th April 2018, the Appellant applied for an administrative review of the Decision. On 16^th May 2018, after review, refusal of the application was maintained.

The substantive hearing before UTJ Allen was held on 9^th April 2019. The UTIAC’s order refusing judicial review and permission to appeal and perfected judgment was promulgated on 18^th June 2019.

The gravamen of the claim was that: (i) the procedure adopted by the Respondent was unfair in that the Appellant was not given a fair opportunity to know the case that was being made against him and that he therefore did not have a fair chance to advance his case; (ii) in any event the Decision was irrational given the very minor respects in which the Appellant’s evidence and information were incorrect and/or that perfectly logical explanations existed to explain away the discrepancies. The Judge dismissed the arguments.

In relation to procedural fairness, the Judge cited the fifth and sixth principles set out in Doody (ibid) (set out at paragraph [2] above). Applying EK (Ivory Coast) [2014] EWCA Civ 1517 (“EK (Ivory Coast)”) he held that the Doody principles did not apply without significant modification to the PBS in use given the different contexts to the two cases (see Judgment paragraph [46]). Also as recorded in EK (Ivory Coast) and in other authorities, an acceptable price of legal certainty was that the application of those clear and certain rules could create “hard edged decisions” which could lead to “harsh” outcomes.

The judge applied these principles to the facts before him. He held:

“47.

I accept that the instant case is not one concerned with failure such as that of the applicant in that case to put the right occupation code on the initial application and failing to read or not taking into proper account guidance provided, but nevertheless the requirements of the Rules are clear as to what is required, and in my view an applicant has to give very careful consideration to the evidence being put forward to support a claim designed to obtain leave under paragraph 245DD. The applicant, as Mr Ostrowski argued, has the opportunity to provide whatever evidence he wishes to put forward in support of his application and is bound to realise, particularly in the case of an applicant such as Mr Taj who has made a previous application, that there is likely to be a visit to his premises and an interview, and that therefore the onus is on him to show that he is operating a credible business. In that regard it is surely important for him to give thought to what weaknesses or difficulties there may be in the application that he puts forward. It is also relevant in this case to bear in mind the declaration that he signed at the end of the interview in confirming that he had been given the opportunity to provide additional information relevant to his application and to clarify the information he had already given and to have the opportunity to make further comments and that he had understood the questions put to him.”

In relation to the principle that a person affected adversely by a decision should be given the gist of the reasoning so that he or she knew the case that had to be met, the judge, again, focused upon the structure of the Rules of the PBS which broke down the qualifying criteria into precise requirements to be met. He endorsed the argument of the Respondent that the case to be met was intrinsic in the Rules themselves and the questions posed in interview:

“48.

With regard to the Doody principles, Mr Ostrowski accepted that an applicant in the position of this applicant was required to be given the gist of the respondent’s case. He argued, as set out above, that this was done by the fact of the applicant being able to satisfy the requirements of the Rules and that the irreducible minimum of information he should have been given was from the structure of the points-based system and more specifically from the questions asked at interview, demonstrating the Secretary of State’s concerns. I see force to this point. No issue can, I think, be taken with the need to have a structured interview, but issue may be taken, a point I shall come into shortly, with the extent to which the system has to contain some measure of flexibility.”

The nub of the judge’s conclusion on procedural fairness is set out in paragraph [55] of the judgment. This centred upon the fact that the relevant factual matters were under an applicant’s control and that a fair opportunity was given to applicants to put the best possible case forward. Were the Respondent to be subject to a duty to put concerns to an applicant prior to an adverse decision this would undermine the “efficiency and speed” of the system:

“55.

In my view no procedural unfairness has been made out. The context as set out above is all important. I accept Mr Ostrowski’s point that in effect the applicant received the necessary irreducible minimum of information he was required to be given from the structure of the points-based system and from the questions asked at interview. I do not think the respondent’s concerns about the name of Avid Support, Avid Support having a different trading address, Avid Support contract being assigned by someone other than the director, the lack of online presence, the recruitment services point, the size of the office point and the health and safety issues were points that required to be put to the applicant for response. Whether it is a matter of inconsistency with internal documents, inconsistency with external information or a conclusion that the decision-maker is likely to draw adverse conclusions from what was said at interview, the process that would be required to meet the applicant’s concept of a fair hearing would in my view take the matter outside the required efficiency and speed of the PBS process. As Mr Ostrowski argued, it would potentially necessitate a series of follow-up interviews to responses that were given, which in my view would go outside the purposes of the PBS process. In this regard I bear in mind the fact that the applicant had every opportunity to prepare for the interview and to bring with him whatever information he chose, and that he agreed at the end that he had had every opportunity to provide additional information or clarify information given that he had understood the questions and had had the opportunity to make further comments. Matters such as discrepancies between company names and directors/managers’ names, the lack of any online presence for Avid Support Limited, the at least potentially ambiguous nature of his answer to question 15 concerning Core Atlantic being very short on staff, an absence of any sign displaying his company name in contravention of regulations and his lack of any apparent awareness of the need to make provision for health and safety were all points which he could have anticipated might give rise to difficulty in which he was in a position to prepare to guard against. The same point can be made with regard to the size of the office. It is clearly a small office and it was not incumbent in my view on the officer to put to the applicant the point of concern about the feasibility of three people working in such a space.”

The Judge then turned to the rationality challenge. He started by summarising the test to be applied:

“57.

In essence the same issues arise in the different context of rationality, bearing in mind that the test requires it being established that the decision was so outrageous in defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410).”

Then, he addressed each and every criticism made of the “concerns” which led the Respondent to refuse the application (Judgment paragraphs [58]-[63]). He rejected one of the concerns as in effect, trivial, but accepted the others and in the light of this, concluded that there were material concerns remaining at the end of the day and that the Decision was accordingly rational.

In the light of the judgments of the Supreme Court in Pathan (ibid) Mr Malik, for the Appellant, refined his submissions. Without, I hope, doing an injustice to his concise and helpful arguments, I would summarise the re-framed case as follows: (i) Pathan establishes that the Doody principles do apply to all procedural aspects of a PBS; (ii) these principles are of fundamental importance to the rule of law since they go to the heart of natural justice; (iii) a failure to adhere to these principles is sufficient, without more, to see a decision set aside and the analysis is not to be made subject to some overarching principle of materiality; (iv) it is evident from the Decision that the

Mr Malik argued that we should follow the guidance in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 (“Citizens UK”) where Singh LJ, at paragraph [70], cited R v Hackney London Borough Council, ex p Decordova (1995) 27 HLR 108 (“Decordova”) at page [113], per Laws J who, in the context of a housing decision, but by reference to immigration law as well, stated:

“In my judgment where an authority lock, stock and barrel is minded to disbelieve an account given by an applicant for housing where the circumstances described in the account are critical to the issue whether the authority ought to offer accommodation in a particular area, they are bound to put to the applicant in interview, or by some appropriate means, the matters that concern them. This must now surely be elementary law in relation to the function of decision-makers in relation to subject matter of this kind. It applies in the law of immigration, and generally where public authorities have to make decisions which affect the rights of individual persons. If the authority is minded to make an adverse decision because it does not believe the account given by the applicant, it has to give the applicant an opportunity to deal with it.”

Later in Citizens UK Singh LJ cited the Court of Appeal in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 (“Q v SSHD”) as authority for the proposition that before a decision maker concluded that a claimant was not telling the truth, he had to be given the opportunity of meeting any concerns or at least should be informed of the gist of the case against him.

Mr Malik also relied upon the guidance given by the Upper Tribunal in R (Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO - procedural fairness) IJR [2015] UKUT 224 (IAC) which he contended was to similar effect. The Headnote states:

“… Interviews serve the basic twofold purpose of enabling applications to be probed and investigated and, simultaneously, giving the applicant a fair opportunity to respond to potentially adverse matters. The ensuing decision must accord with the principles of procedural fairness.”

By reference to Pathan and to these cases it is argued that the Decision was adopted without the Appellant being put on notice as to the concerns about: (i) inconsistencies in the name of the name of the Appellant’s business clients; (ii) inconsistencies in evidence about the trading addresses of clients; (iii) the fact that one of the two contracts which amounted to the business of the Appellant was signed by someone other than the director; (iv) the absence of an online presence of the client for whom the Appellant claimed to have constructed a website; (v) inconsistencies in the description of the business said to be performed by the Appellant; (vi) the small size of the office and its apparent inadequacy for the conduct of the business described by the Appellant; (vii) health and safety compliance.

As to the fact that the Appellant signed a declaration at the end of the interview that he had been accorded the opportunity to provide additional information and to make further comments, since the Appellant was unaware of the decision maker’s concerns, and no material questions were put in the interview which raised them, the declaration was meaningless: it was unrealistic to expect that the Appellant, without cause, would know that he needed to provide further documents or comments.

In relation to rationality the arguments of the Appellant are set out in detail in the Judgment at paragraphs [57] – [64]. There is no need to set them out in any detail in this judgment. The criticisms of the Decision and the endorsement by the Judge of the Decision focus upon alleged failures properly to understand answers given in interview, errors in the inferences that can properly be drawn from answers, and failures to address relevant considerations.

I turn now to my conclusion in relation to Issue I: procedural unfairness. For the reasons set out below, I do not accept this ground of appeal. I deal below first with the argument that there is a general obligation on the Respondent under the PBS to provide notice of concerns arising and, then, subsequently, with the sub-issue relating to concerns about truthfulness.

It is convenient to start with the judgments of the Supreme Court in Pathan. The facts are important. I would summarise them as follows. A PBS is used for the grant of LTR to non-EU nationals who wish to work or study here. There are five tiers. The relevant tier was Tier 2 (General) Migrant. To obtain LTR an applicant must be sponsored by an employer licensed by the Home Office to sponsor migrants. Guidance issued by the Home Office states that an applicant must have a valid certificate of sponsorship (“CoS”) provided by his sponsor and that if he does not the Home Office will reject his application. The system is prescriptive and there is no discretion about this. The Secretary of State does have a discretion to grant leave outside the PBS in exceptional circumstances and a power to revoke a licence at any time.

Mr Pathan made his application and was sponsored by his employer, Submania Ltd

The principal issue on the appeal was whether the Secretary of State’s failure to inform the Appellant of the revocation of his sponsor’s licence was reviewable upon the basis that principles of procedural fairness and natural justice required a person to have an opportunity to be heard on any material information which the decisionmaker acquired and of which he was unaware. Both the Upper Tribunal and the Court of Appeal rejected Mr Pathan’s judicial review challenge to the decision of refusal.

The Supreme Court upheld the appeal by a majority (4:1) upon the basis that there had been a breach of the principle of procedural fairness for the Respondent not to have informed Mr Pathan that his sponsor’s licence had been withdrawn (the duty to give notice). A minority (Lady Arden and Lord Wilson) went on to hold that the duty of procedural fairness also meant that the Secretary of State had to give Mr Pathan an opportunity to avert that difficulty. The majority on this point (Lord Kerr and Lady Black in a joint judgment and Lord Briggs in his separate dissenting judgment) concluded that the grant of an extension of time was a matter of substance outside the scope of the principle of procedural fairness.

In the present case, the argument is based upon a failure to give notice which the majority treated as a procedural matter. For present purposes, I therefore concentrate upon the reasons that led the majority to hold that there was a breach of the duty of procedural fairness in failing to give notice to Mr Pathan that the CoS had been revoked. From the majority judgments, from the case law that they endorse and from a judgment which post-dates Pathan, I would draw the following conclusions:

I turn now to consider whether there is a duty to put general concerns about the genuineness of a business to an applicant. By use of the expression “general” I am referring to concerns which arise regardless of whether the applicant’s account is considered to be truthful or not. As was made clear in Pathan the application of the requirement of procedural fairness is fact and context sensitive.

In my judgment the Judge did not err. He correctly concluded that the PBS fell on the right side of the fairness line. My reasons are as follows.

First, the principle of procedural fairness concerns substance and not form. Ms

The second point is that the judgment in Pathan does not, in the final analysis, enable the Appellant in the present case to argue by analogy to the facts of that case. In Pathan a critical evidential component of the applicant’s case for LTR (the validity of

Thirdly, the PBS is open and transparent. The Appellant knew full well the evidence that needed to be provided and the relevance of each evidential matter to the test to be applied. This flows from the Rules themselves and is reflected in questions posed in interview. Further information is provided by the Home Office Guidance. There is no mystery in an applicant being required to provide detailed information about his customers and clients and it is not information that should be hard to come by, or which is especially complex.

Fourthly, it is not unreasonable in such circumstances to expect that the burden of providing the information should lie with the applicant, as it does under the Rules. If a series of inaccurate or incomplete pieces of information are tendered, responsibility fairly lies at the door of the applicant (see the quotation from Pathan paragraph [104] set out in paragraph [54] above). If the decision maker is then led to entertain doubts by virtue of the submission of this inadequate evidence, then this is not of such a nature as to trigger a duty on the part of the decision maker to institute some additional, incremental, system or procedure to allow an applicant a second chance to get it right.

Fifthly, the system is specifically designed to reduce administrative discretion and, in this way, the risk of inconsistent or arbitrary decisions is minimised. This is a strength of the system since a routine application of the system should, by its nature, ordinarily lead to a fair outcome. Nonetheless, the system incorporates a necessary

Sixthly, as the Judge noted, the Appellant had every opportunity to prepare for the interview and to bring with him whatever information he chose. Nothing in the system hindered the Appellant in his ability to put together a convincing case. Moreover, at the end of the interview he confirmed that he had understood the questions and had been accorded the opportunity to make further comments. I accept Mr Malik’s point that this does not enable an applicant to address deficiencies in the material and evidence submitted which are influencing the decision maker, but which are not brought to the attention of an applicant. But it is relevant to an analysis of whether the system is intrinsically fair in enabling an applicant having the opportunity at least once to advance his/her best case.

Seventhly, I also agree with Mr Malik that if the system (systemically or operationally) had been intrinsically unfair (as it was in Pathan) then the fact that steps needed to make it fair would be expensive or administratively inconvenient would be nothing to the point. Here however the basic system is, in my judgment, intrinsically fair. I would add that the two reasons given by the Judge for his conclusion (efficiency and speed – see paragraph [35] above) are not in this context irrelevant. The fact that it is administratively inconvenient for the Respondent to make a system fair is no defence (see paragraphs [50(vi)] above); but, if the system is procedurally fair then a policy which seeks to enhance finality and efficiency, which includes the need to avoid drawing out procedures longer than is necessary, is in my view a relevant and valid public interest consideration and explains why the Respondent does not wish to add extra administrative layers to the present PBS which are not necessary to maintain basic fairness.

Eighthly, Mr Malik sought to convince the Court that had the Appellant been given a chance to address the concerns he would have done so. He referred the Court to a

Finally, I note that in certain authorities pre-Pathan, the Courts have observed that the application of PBS can lead to unfair and harsh results but that, in effect, this is an acceptable trade-off for a system which is clear precise and predictable: See for instance Talpada v SSHD [2018] EWC Civ 841 at paragraph [36] and Mudiyanselage v SSHD [2018] EWCA Civ 65 at paragraph [65] cited in the Judgment below at paragraph [47] (see paragraph [32] above). The impression given by these observations is that a PBS is tough for acceptable policy reasons. Following Pathan the way in which the argument might be refashioned is that provided that a PBS is systemically and operationally fair then the fact that a negative decision can have

I therefore conclude that it was not unfair, systemically, that the PSB did not incorporate, as part of its system, a requirement on the decision maker to put the Appellant on notice of general concerns entertained as to the genuineness of the application and the business in question; and nor was it unfair, operationally, on the facts of the case.

This brings me to a sub-issue which is whether that conclusion is different in a case where the concerns are as to the truthfulness of an applicant’s account.

Mr Malik argued that at base the “concerns” held by the decision maker related to the truth or veracity of the account given by the Appellant. He relied upon authorities (referred to above at paragraphs [39]-[43] and discussed below) which indicate that if a decision maker is intending to refuse an application upon the basis that the truth of an applicant’s account is to be disbelieved then that emerging conclusion should be put to the applicant before an adverse decision is taken.

In my judgment these authorities do not assist the Appellant. This is for two main reasons. First, the cases cited relate to contexts which are far removed from the present and they do not in any event lay down a hard and fast principle which this court is bound to apply. Second, in any event, the present case is not at its core about the veracity of the applicant but is about the paucity and inadequacy of the evidence submitted concerning the Appellant’s business.

It is helpful to consider in greater depth Q v SSHD which was relied upon in Citizens UK. I start though with a general observation about Decordova (ibid, see paragraph [39] above). There, as the quotation from the case makes clear, the issue of the truthfulness of the applicants account was “critical” to the issue being decided. I consider below whether that is the case here.

In Q v SSHD (ibid) the Court was concerned with what it considered to be a wholly deficient interview process designed to test the truthfulness of an asylum seeker’s account and, in particular, to decide whether the applicant applied for asylum "as soon as reasonably practicable after [his] arrival in the United Kingdom".

The Court identified a number of key principles. First, that the burden of persuasion lay with the asylum seeker. Secondly, that the Secretary of State must act fairly both in setting up a fair system to enable decisions to be made and as to its de facto operation (systemic and operational fairness). Thirdly, (applying Doody) what fairness required depended upon the circumstances of the case. Fourthly, the importance of ensuring that the system was fair (to an applicant and to the public interest) was affected by the “draconian” consequences of refusing an asylum application (e.g. it had the effect of rendering such a person destitute). Fifthly, a fairness duty was needed because the determination to be made was one of fact for which there was no right of statutory appeal and the right of judicial review which did exist was necessarily limited so far as conclusions of fact were concerned. It was therefore of “particular importance to ensure that the Secretary of State follows a fair procedure in reaching his conclusion about the facts.”

The Court of Appeal upheld the decision of the High Court that the system was not fair. At first instance the Judge had identified the sorts of information that the decision maker needed and how, but by its nature, it would be obtained from the narrative account of the asylum seeker. Collins J commented in paragraphs [19] to [21] of his judgment as follows:

“I am satisfied that in port arrivals cases further detail must be asked about reliance on advice and, if an account of what happened at the airport is considered incredible, an opportunity should be given for further explanation. In lorry cases, vagueness about the nature of the lorry or the journey should again be investigated, particularly if, as has been the case in these and I gather in many claims, it is to be said that such vagueness means that the Secretary of State is not satisfied that the Claimant arrived when he said he did. I do not suggest any extra questioning need be at all lengthy. What is needed will depend on the circumstances, but the reasonableness of the delay in claiming asylum can only be properly decided on if sufficient information is provided. At the very least, the Claimant must be given the chance to rebut a suggestion of incredibility and to explain himself if he can. All that may be needed is a warning that the account is too vague or is incredible having regard to known practices at ports or it was not reasonable to rely on advice or to obey instructions. In those latter cases, it is not uncommon that threats are made that the Claimant's family will be made to suffer if instructions are not obeyed. Equally, I am well aware from my position as President of the Immigration Appeal Tribunal (the "IAT") that in some countries to claim asylum at a port will result in immediate refusal to enter and removal by the police. This has led some to believe that it is essential to gain entry before claiming asylum.”

The Court of Appeal agreed. It examined the questions posed during interview and questioned whether they were adequate to obtain the information necessary to enable a fair decision to be made. It measured them against the purpose of the exercise and whether the warnings given to applicants before interview were sufficient to enable applicants to understand the purpose of the interview and what was expected of them. The analysis undertaken by the Court of the system deployed on the ground was detailed. At paragraph [91] the Court concluded:

“91.

We do not think that the questions asked at present enable the interviewer (let alone the decision maker) to have a sufficiently full picture for a fair decision to be made. In the light of the conclusions set out above, fairness requires the interviewer to try to ascertain the precise reason that the applicant did not claim asylum, say, at the airport or immediately after being let out of a lorry. This calls for interviewing skills and a more flexible approach than simply completing a standard form questionnaire. For example, depending upon the circumstances, it may well involve the need to ask at least some questions relating to the state of mind of the applicant. That may in turn involve asking him what advice or instructions he was given by his agent or facilitator, although it is fair to say that in only one of the four cases of applicants who said that they arrived by air did the applicant say that he had been told by the agent not to claim asylum at the airport but later. We recognise in this regard that it is not for the court to say what questions should be asked in any particular case or how interviews should be conducted. Suffice it to say that we are in no doubt that the system at present in place does not satisfy the test of fairness.”

The Court then considered whether procedural fairness demanded that applicants, whose accounts were to be disbelieved, should have communicated to them the gist of why they were to be disbelieved. The Court held that fairness did require that the gist of the concern be communicated in advance of the decision. This is the conclusion that is relied upon before us.

To what extent therefore does this line of authority indicate that in all cases, when the decision maker gets to the point of forming a view that an application should be rejected, the gist of operative concerns should be communicated to the applicant? Put another way is a duty to put evolving and potentially dispositive concerns about truthfulness an absolute, or is it fact and context sensitive?

In my view, it is fact and context sensitive. This follows from the reiteration in Pathan of the position set out in many earlier cases that the application of the Doody principles of procedural fairness were (i) governed by context; and (ii) to be applied both to the system in issue but also to the specific facts of individual cases.

In my judgment, the principles of procedural fairness as applied to the PBS in issue do not compel the decision maker to communicate evolving concerns about truthfulness.

First, my starting point is that the PBS in issue is, otherwise, fair and affords applicants a full, transparent, and informed opportunity to advance their best case in order to obtain LTR.

Secondly, the context in the present case is very different to that in Q v SSHD (ibid)] and in Citizens UK. The nature of asylum applications is such that the applicant will be recounting events for which there may be no easy proof. This might cover the reasons for the claim for asylum and as to the methods of travel which brought the applicant to the United Kingdom and as to what they have done in the United Kingdom since arrival and why. There may be no or only sparse documentary or other tangible proof against which to measure and test an applicant’s account. The decision might rest in large measure upon the conclusion of the officer as to the veracity of the applicant and the evaluation of truth may thus necessarily be core to the decision-

An application for LTR as an entrepreneur is different. The proof needed will be largely documentary and the particulars independently verifiable. The veracity of an applicant’s account should not lie at the heart of the process. An applicant should be able to establish the case for LTR using: emails with clients; invoices; business plans; evidence of advice given; management accounts; correspondence with regulators; correspondence with accountants and other professional advisers; profit and loss figures; internet-based evidence about clients and their activities, etc. This evidence should speak for itself. I accept of course that an applicant’s oral explanations may be relevant, and its truthfulness might be taken into account, but the pith and substance of a decision should be capable of resting upon other evidence.

For these reasons I reject the submissions that case law establishes a right to have concerns about truthfulness communicated to the applicant in the context of this particular type of PBS. I also reject any suggestion that on the facts it was operationally unfair of the decision maker not to put concerns as to truthfulness to the Appellant.

For these reasons I reject the argument that the PBS is procedurally unfair.

I turn now to the second ground of appeal, namely rationality. For the reasons that I set out below I do not consider that the Judge erred in his conclusions on rationality. I have though one caveat to the approach adopted by the Judge. He articulated (judgment paragraph [57]) the rationality test as requiring the Appellant to show that the decision was “so outrageous in defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it”. Without any elaboration or qualification if this language is used, strictly, to govern a case then the hurdle placed before almost any claimant for judicial review would be high indeed. This test, in its unalloyed form, risks a judge being asked to make a near subjective assessment of what is meant by a “defiance” of logic or “accepted moral standards” and then, having made that evaluation, proceeding yet further to consider when that “defiance” had become sufficiently (“so”) “outrageous” as to warrant judicial intervention.

The modern articulation of rationality is somewhat less subjective and more prosaic and focuses upon: whether the decision maker took into account an irrelevant consideration or ignored a relevant consideration, or whether the judge wrongly construed a key fact (such as a document) or otherwise drew illogical inferences from common ground facts, etc. If the Judge did make such an error and it is or might be material to the outcome then, ordinarily, a court will quash the decision and remit it.

If there is no clear error such as that described, and it is said only that the decision is irrational, in the sense that no reasonable decision maker could have come to that conclusion, the Court will work out the appropriate margin of judgment or discretion to accord to the decision maker. There are many authorities which in broad terms

In short, the nature of a rationality challenge is fact and context specific. Mr Malik, for the Appellant, advanced his submissions along these lines. He took us to the various Q&As which flowed from the interview and, based upon close textual analysis, submitted that the inferences drawn from them by the decision maker were illogical or inadequate or involved taking irrelevant matters into account, and that the judge erred in upholding the Decision.

I agree with the basic approach advanced by Mr Malik and it actually accords with the approach that the Judge adopted which was to consider each and every criticism made of the inferences drawn by the Respondent to the answers to questions posed in interview, which led to concerns, and then to form a view as to where it was a proper inference to draw.

In the present case, the Decision is not in itself political or one which involves issues of policy. It does not involve an assessment of complex technical or scientific evidence. It is not a decision designed to protect on a precautionary basis public health or the environment, for instance. It is a nuts and bolts decision based upon narrow facts, relating to one individual. The Rules are drafted to be binary: an applicant either meets the criteria and gets LTR or does not and it is declined. The system is structured to minimise the decision maker’s discretion. The officer applies a well-trodden system involving a tick box exercise to ensure that the relevant documents have been submitted and then an evaluative exercise to see whether the application is credible and genuine by reference to established criteria. Evidently, some discretion or judgment is called for by the officer, but the comprehensive and structured nature of the evaluative process limits it significantly.

On this basis there is no reason in principle why a court should refrain from quashing a decision premised upon a material error made by an officer. No important issues of politics or policy would be engaged by such a result. It is also relevant that a mistake by an officer may have severe consequences for the applicant, as the Supreme Court repeatedly pointed out in Pathan and as Mr Malik emphasised before us.

But against this is the fact that provided the system in and of itself is fair (as to which my conclusion in relation to Issue I is relevant) then a routine application of that system to an applicant is by its nature likely to produce a rational, justified, result. In the context of a fair PBS, the hurdle to be surmounted in a rationality challenge is therefore likely to be relatively high.

With these observations in mind I turn to the analysis of the Judge. As already observed, he considered each factual argument raised by the Appellant as to the Q&A

However, he saw “more substance” in other matters such as the fact that the documents gave inconsistent addresses and different ownership details for Avid Support. This was one of the only two clients which the Appellant’s business had and the inability of the Appellant to provide accurate and verifiable details was legitimately a matter of concern (paragraph [58]). Of real concern was the absence of any online presence for Avid Support such as a website. The Appellant claimed to have carried out web design for Avid Support but there was no evidence of them having a web presence. It had been argued before the judge (and the point was repeated before us) that the website might have been down at the point when a search was performed. But that was pure speculation and conjecture; it was open to the Appellant to provide chapter and verse to the officer to establish that such a website did in fact exist, and he did not.

Also of concern was the Appellant’s answer to the question in interview about his performance of market research. The Appellant had made reference to Core Atlantic being very short on staff. In the Decision it was pointed out that there was an unexplained discrepancy between this answer and another relating to the work that he did under the contract with Core Atlantic which had no reference to recruiting staff. The Judge said that it was “… to say the least a curious answer which certainly bears no relevance to what he had said in answer to question 7 as to the goods or services his business provided to Core Atlantic”.

Also of concern was the absence of a visible sign at the premises displaying the company name, and its registered company address or wherever it operated from. The Appellant had explained this upon the basis that his office was “shared” with an estate agent. But the Judge concluded that whether or not the office was shared, the legislative requirement still applied (the Companies (Trading Disclosures) Regulations 2008, Regulation 3) and the Respondent was therefore legitimately concerned at a failure to comply with relevant regulations and that this failure was not irrelevant to the credibility of the business operation.

The Judge also held that the decision maker was entitled to be concerned about the complete absence of compliance with health and safety requirements at the office. The absence of any health and safety requirements in place at the premises was a matter warranting understandable concern as to the genuineness of the claimed job creation.

Finally, the decision maker was rightly concerned at the size of the office and whether it was feasible for two employees and a director realistically to conduct work in such

The business described by the Appellant in his information and in interview was an insubstantial, thin undertaking with but two clients about whom the Appellant could not give accurate details and from whom minimal revenues were generated. The Judge observed, in my view correctly, that since this was the Appellant’s second application for an entrepreneur visa, he should have known what level of detail was to be expected of him. The business that was the basis of the Appellant’s application was not new. It had been in existence for some years.

In my judgment, the decision maker was entitled to have real concerns about the genuineness of the business and the Judge, on the basis of his careful point by point analysis, was justified in upholding the Decision. There is no basis upon which this Court can properly interfere.

I would reject the rationality challenge.

It follows from the above that I would dismiss the appeal.

I agree.

I also agree.