Ashrafuzzaman, R (on the application of) v Entry Clearance Officer

We start our assessment of the precedent (or jurisdictional) fact issue with a trite proposition. Judicial review is essentially a supervisory jurisdiction, to be contrasted with an appeal process of reviewing the merits of a decision. The focus of judicial review is the decision-making process. Its concern is whether the decision maker was lawfully entitled to reach his or her decision based on the information made available at the time that the decision was made.

The situation is however different where a statutory provision contains a precedent fact. The precedent fact is akin to a trigger which, when activated, enables a particular power to be exercised. The lawfulness of the exercise of power is dependent on the existence of the precedent fact. By way of example, in Ex p Khawaja [1984] AC 74, the question of whether someone was an illegal entrant, with reference to paragraphs 9 and 16(2) of Schedule 2 to the Immigration Act 1971, was held as being one of precedent fact because the relevant power in that case, to be able to detain a person for the purposes of removal, was only exercisable if the person was an illegal entrant. Similarly, in In R (A) v Croydon LBC [2009] UKSC 8 the Supreme Court decided that "there is a right or wrong answer" to the question whether an individual is or is not a child and that it was for the Court to determine the answer. Thus, a person being a child was a precedent fact that had to be established prior to a local authority being able to exercise its power under s.20(1) of the Children Act 1989 to accommodate a “child in need.”

Where a statutory provision requires the existence of a precedent fact it will be for a court or tribunal to determine for itself whether it exists. If the exercise of a particular power is dependent on a precedent fact, a court or tribunal is entitled to consider all available relevant evidence in determining its existence, including evidence that was not before the decision-maker at the date of the challenged decision. This is because the existence of a precedent fact will almost always be a binary choice – either it exists or it does not, and if it does not exist there can be no lawful use of the power. The existence of a precedent fact goes to the legality of a decision, and whether the factual condition is satisfied must be determined by a court or tribunal as part of the question of law as to vires.

It is to the empowering legislative provision that one must look when determining whether the exercise of a particular power is dependent on the existence of a precedent fact. In SSHD v Lim & Anor (R, on the application of) [2007] EWCA Civ 773 Sedley LJ noted, at [18]:

“…whether something is in truth a precedent fact, absent which the decision-maker has no power to decide anything, or is one of the matters confided, at least initially, to the decision-maker himself, has to depend on the terms of the empowering provision, in this case s.10 of the 1999 Act.”

In R v SSHD, ex p. Onibiyo [1996] QB 768 Sir Thomas Bingham MR observed, (at 784G – 785B):

In the instant challenge the applicant contends that the existence of false representations, or the existence of the dishonest non-disclosure of material facts in an application, as set out in paragraph 320(7A) of the Immigration Rules, is a condition precedent that the Tribunal must first determine.

Paragraph 320(7A) appears in the section of the Immigration Rules dealing with the general grounds of refusal, and the Immigration Rules themselves are established pursuant to s.3 of the Immigration Act 1971. The authority of Giri engaged directly with the interplay between s.3 of the Immigration Act 1971 and the general grounds of refusal in the Immigration Rules. The main issue identified by the Court of Appeal was:

The applicant in Giri applied for leave to remain as a Tier 1 (Post Study Work) Migrant. His application was refused under paragraph 322(1A) of the Immigration Rules (part of the general grounds of refusal concerning in-country applications) on the basis that he failed to disclose material facts. He answered 'no' to a question on his application form inquiring whether he used deception in an earlier application when in fact he previously supplied false documents.

Richards LJ (with whom Beatson LJ and King LJ agreed), considered Khawaja and Bugdaycay v SSHD [1987] AC 514; [1987] Imm AR 250, where the House of Lords rejected an argument that it was for a court to determine whether a person was a refugee in a judicial review challenge to issue removal directions following refusal of an asylum claim. The proper construction of the relevant section of the Immigration Act 1971, which concerned the power to give or refuse leave to enter the UK, was to be exercised by immigration officers, and all questions of fact on which this discretionary power depended had to be determined by the immigration officer. Although the question whether someone was a refugee was clearly an important one, when deciding how to exercise the power, an immigration officer (or the Secretary of State) had to make factual determinations on a daily basis, such as deciding whether a person was a bona fide visitor, or a student, or a business person, and these determinations could, in the absence of a right of appeal, only be challenged using conventional judicial review principles (at pages 522F – 523B).

Richards LJ held, at [19] and [20]:

“In my judgment, Mr Malik's reliance on the decision in Khawaja was misplaced. The passages I have quoted from Khawaja and Bugdaycay are fatal to his case on this issue. The decision here under challenge is a decision made in the exercise of the power conferred on the Secretary of State by section 3 of the 1971 Act to grant leave to remain in the United Kingdom. The Rules contain detailed provisions as to how the power is to be exercised (though there is a residual power to grant leave even where it falls to be refused under the Rules). Paragraph 322(1A) is one of those provisions. Its application involves findings of fact, but that is true of a multiplicity of provisions in the Rules. If the conditions in it are found to be satisfied, leave must be refused under the Rules, but that, too, is true of many other provisions under the Rules. A finding that the conditions are satisfied has potentially serious consequences (see, in particular, the effect of paragraph 320(7B) as summarised above), but paragraph 322(1A) is again far from unique in that respect. The key point is that the statute confers the power on the Secretary of State, or the immigration officers acting on her behalf, to make the decision whether to grant or refuse leave to remain. It is for the Secretary of State or her officials, in the exercise of that power and in reaching their decision, to determine which provisions of the Rules apply and whether relevant conditions are satisfied, including the determination of relevant questions of fact. On the reasoning in Khawaja and Bugdaycay, their findings on such matters are open to challenge in judicial review proceedings only on Wednesbury principles; it is not a situation in which their powers depend on some precedent fact the existence of which falls for determination by the court itself.”

The position would be different if we were concerned not with the exercise of the power under section 3 of the 1971 Act to grant leave to remain but with a decision to remove a person under section 10 of the 1999 Act on the ground that he or she had used deception in seeking leave to remain (see paragraph 13 above). In that event, as a matter of statutory construction, the very existence of the power to remove would depend on deception having been used; and in judicial review proceedings challenging the decision to remove, the question whether deception had been used would be a precedent fact for determination by the court in accordance with Khawaja. Miss Giovannetti QC, on behalf of the Secretary of State, accepted as much. In practice, however, the issue will rarely arise in that form, because decisions under section 10 are immigration decisions carrying a right of appeal to the tribunal, which can review for itself the facts on which the decision under appeal was based, and the existence of that alternative remedy means that judicial review is not available in the absence of special or exceptional factors: see, most recently, the decision of this court in R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744.”

Nor does it follow that, simply because a particular factual requirement is dependent on a binary choice, the requirement will be one of precedent fact. This was considered in Giri at [25]:

“Mr Malik argued that aspects of that reasoning could be transposed to the present context: whether deception has been used is likewise an objective question to which there is a right or a wrong answer, however difficult it may be to determine what that answer is. I do not accept, however, that Lady Hale was intending to lay down any general proposition that because a question is an objective one to which there is a right or a wrong answer, it is necessarily one of jurisdictional fact for ultimate determination by the court. These were simply considerations that formed part of the reasoning in support of her conclusion as to the correct construction of section 20(1) of the 1989 Act.”

Richards LJ, held at [32], that “the relevant question”, in such judicial review challenges, is simply “whether it was reasonably open to the decision-maker, on the material before him, to find that deception had been used”, and “the finding in question is one of fact” and “issues of proportionality are not relevant to it”.

Although the instant challenge concerns the application of the general grounds of refusal in the context of an entry clearance application and not an application for further leave to remain, there is no principled distinction between the two scenarios. Both paragraph 322(1A) and paragraph 320(7A) concern whether an applicant was dishonest in his or her application, and both are established by the same statute that confers power on an immigration officer or the Secretary of State to grant or refuse leave to enter, and, in the exercise of that power, to determine relevant questions of fact. Consequently, it is not for the tribunal to conduct a full merits assessment of every factual finding made by the respondent in the exercise of discretionary powers when applying the Immigration Rules.

Mr Turner contended that the Tribunal’s approach, in a judicial review context, to issues of dishonesty that arise within the context of the Immigration Rules must now be considered in light of Balajigari. Balajigari concerned the refusal of applications for ILR made by Tier 1 (General) Migrants because the Secretary of State believed their presence in the United Kingdom was undesirable based on their alleged dishonest conduct by either inflating their income for the purposes of immigration control or deflating their stated income in order to reduce their tax liability. The Secretary of State relied on paragraph 322(5) of the Immigration Rules, which required that leave to remain should normally be refused if the conduct or character of a person made it undesirable to permit them to remain in the UK.

The challenges in Balajigari arose in the context of judicial review proceedings. The challenges were categorised into three groups. The first group was concerned with, inter alia, the exercise of discretion and the requirements of procedural fairness and fell under the heading ‘domestic public law challenges’ ([20] to [76]). In the second group the applicants contended that the decisions they were challenging interfered with their rights under Article 8 ECHR ([77] to [94]). The third group concerned the suitability of judicial review as a means by which paragraph 322 could be challenged where Article 8 ECHR was engaged ([95] to [106]). It is the second and third group of challenges, in respect of which there is some overlap, that Mr Turner drew upon in support of his submission that the existence of dishonesty within paragraph 320(7A) is a matter of precedent fact.

Having analysed the arguments advanced by the parties the Court (Underhill, Hickinbottom, Singh LJJ) accepted that exposure of the applicants to liability to removal could engage their Article 8 ECHR rights given that they would usually have been in the UK for several years ([80], [84] to [91]). Having found that the Secretary of State’s decisions engaged Article 8 ECHR, the Court then considered the consequences of such engagement. It is this assessment upon which Mr Turner relies. He cites [92], [95], and [104] in support.

Having considered the circumstances in which a right of appeal to the First-tier Tribunal might arise, the Court then considered how, in the context of judicial review proceedings, the applicants could rely on their Article 8 ECHR rights.

When considering one of the individual challenges ([153] to [161]) the Court noted the view of an Upper Tribunal Judge that the question to be posed was not whether the particular applicant had been dishonest but whether the Secretary of State was rationally entitled to conclude that there had been dishonesty. The Upper Tribunal Judge had referred to Giri, and the Court of Appeal confirmed that the Wednesbury approach was the “correct approach where the tribunal is not concerned with an issue of precedent fact (or a human rights claim).” The judgment contains a footnote reading:

“As to the inapplicability of Giri where an article 8 claim has been raised, see Ahsan, para. 118”

Although the Upper Tribunal Judge’s decision was vitiated by procedural irregularity, the Court of Appeal did say ([161]) that, in the absence of any reliance on ECHR Convention rights, the Upper Tribunal was right to proceed on the basis of a rationality review.

At [118] of Ahsan, having first considered the circumstances in which a human rights claim could be an appropriate remedy in respect of an allegation of deception in a decision under s.10 of the Nationality, Immigration and Asylum Act 2002 (as it was prior to the Immigration Act 2014), Underhill LJ stated:

“I should say, for the avoidance of doubt, that the reasoning in the previous paragraph does not mean that in every case where a finding of deception is made the subject of that finding is entitled to a judicial determination of the truth of the allegation. Whether it does so will depend on the legal context in which the question arises, including whether it is material to a human rights claim. That there are cases where only a rationality review is available is illustrated by Giri (see para. 43 above). Ms Giovannetti was asked by the Court whether an appellant was entitled to pursue a challenge to a deception finding in its own right, irrespective of its impact on the question of leave to remain or potential removal. She said that in principle they would be, but she submitted, relying on Giri, that such a challenge could only be on Wednesbury grounds.”

In our judgement it is readily apparent from the passages cited above that in a judicial review challenge the jurisdiction of the Tribunal to determine an issue of dishonesty for itself arising from a decision taken under the general grounds of refusal in the Immigration Rules is dependent on the engagement of an ECHR right. This is because an allegation that such a decision violates Article 8 ECHR, and is therefore unlawful as being contrary to section 6 of the Human Rights Act 1998, must be determined by the court or Tribunal on its merits, and the approach to the ECHR question is not limited to Wednesbury (Associated Provincial Picture Houses LTD v Wednesbury Corporation [1947] EWCA Civ 1) review (see, e.g. R (Nasseri) v SSHD [2009] UKHL 23, Bank Mellat v HM Treasury (no 2) [2013] UKSC 38 and 39, R (Lord Carlile of Berriew) v SSHD [2014] UKSC 60, Caroopen & Myrie [2016] EWCA Civ 1307; [2017] Imm AR 930). In the absence of any parallel or concomitant ECHR considerations the Tribunal’s role is supervisory, (Giri). The issue of dishonesty in a judicial review challenging a decision taken under paragraph 320(7A) of the Immigration Rules is not one of precedent fact.

We find that both Balajigari and Ahsan involved particular questions that arose in the context of judicial review challenges concerning matters of dishonesty that had parallel or concomitant ECHR considerations involving the same dishonesty matters.

The issue of dishonesty in Ahsan was determinative of whether there would be a breach of the applicants’ Article 8 ECHR rights ([76] and [88]). The Court was at pains in Ahsan at [118] to prevent any wider application of the pragmatic approach proposed, and expressly referred to the s. 10 removal decision at [117] as being the source of the justification for a judicial consideration of the facts concerning deception. It was made clear that the analysis in [117] “does not mean that in every case where a finding of deception is made the subject of that finding is entitled to a judicial determination of the truth of the allegation” and “whether it does so will depend on the legal context in which the question arises, including whether it is material to a human rights claim”. Underhill LJ further added that “there are cases where only a rationality review is available is illustrated by Giri”.

Mr Turner did not argue that the applicant’s Article 8 ECHR rights were engaged in respect of his application or the challenged decision. We are satisfied that there is no Article 8 ECHR claim by this applicant associated with his student visa application. We communicated our decision in respect of the precedent fact issue to the parties as a preliminary issue.

We must assess the lawfulness of the respondent’s decision using conventional public law grounds. As such, we are concerned with whether the respondent was lawfully entitled to reach his or her decision on the basis of the information available to her at the date of the challenged decision. Evidence and explanations, including the explanation first advanced by the applicant in his Pre-Action-Protocol Letter sent in March 2020 that he was assisted in his application by an agent, the witness statement from Mr Choudhury dated 29 September 2021, and the witness statement from the Entry Clearance Officer dated 2 November 2021 cannot therefore be considered when determining the lawfulness of the decisions under challenge. It was for this reason that we declined to hear evidence from the appellant (even if it was available to give, bearing in mind Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC)).

The legal burden of proving that the applicant was dishonest lies on the respondent, albeit that there is a three-stage process. The respondent must first adduce sufficient evidence to raise the issue of dishonesty. The applicant has then a burden of raising an innocent explanation which satisfies the minimum level of plausibility. If that burden is discharged the respondent must establish to her satisfaction, on a balance of probabilities, that this innocent explanation can properly be rejected (Abbas, R (on the application of) v SSHD [2017] EWHC 78 (Admin)).

In Giri, at [38], Richards LJ accepted that it was for the respondent to satisfy the court that she had discharged the burden of proof on the balance of probabilities. Further, in the context of such a case, the respondent should furnish evidence of “sufficient strength and quality” and the respondent (and the Tribunal) should subject such material to “critical” and “anxious” scrutiny. In Balajigari, which concerned paragraph 322(5) of the Immigration Rules, Underhill LJ stated (at [37(2)]) that the rule "is only concerned with conduct of a serious character". The standard of proof is the balance of probabilities but that is to be exercised "bearing in mind the serious nature of the allegation and the serious consequences which follow…" [43].

We are satisfied that the respondent was entitled to conclude that evidence of sufficient strength and quality had been adduced to raise the issue of dishonesty. In both his application form and his 1^st interview, and at the start of his 2^nd interview, the applicant stated that he had no family in the UK. This was not correct. This clear inconsistency in the information provided by the applicant was unarguably sufficient to raise the issue of dishonesty.

The explanation given by the applicant in his 2^nd interview was based on his misunderstanding of the questions put to him in his 1^st interview and the application form. He believed that the questions concerning whether he had family in the UK only related to his intended geographical location in the UK. The applicant also claimed that his misunderstanding arose because English was not his first language. In his Administrative Review application the applicant offered a further explanation; that ‘the guideline’ in respect of the application form did not mention siblings as family and the applicant did not therefore consider his sister to fall within the definition of family.

We now consider whether the respondent was rationally and lawfully entitled to reject the explanations offered by the applicant and whether, in so doing, she applied the principles set out above at paragraphs 82 and 83 above.

In the 1^st decision the respondent accurately set out the requirements of paragraph 320(7A) before identifying the inconsistency in the information provided by the applicant. The respondent summarised and then engaged with the applicant’s explanation. The respondent was not satisfied that the applicant misunderstood the questions in the application form or in his first 1^st interview because both questions were framed by reference to the UK and not to Southampton. The respondent was not satisfied that the inconsistencies could be attributed to the applicant’s proficiency in English because the applicant was due to commence a course of study that was conducted in English and because, at the end of the 1^st interview, the applicant stated that he understood all the questions. It was additionally noted that the applicant maintained that he had no family in the UK at the commencement of his 2^nd interview. The respondent was not satisfied that there had been an innocent misunderstanding and then concluded that the applicant intentionally failed to declare a material fact.

We can discern no unlawfulness in the respondent’s assessment. The respondent took into account the information before her and actively engaged with the explanation proffered by the applicant. There is nothing in the decision to support the contention that the respondent failed to apply paragraph 320(7A) with the requisite anxious scrutiny, or that she was not aware that the burden of proof rested on her. There was no requirement for the respondent to expressly refer to her own published guidance on ‘False Representations’, and the fact that the respondent did consider whether the inconsistency could be an innocent misunderstanding suggests that she was mindful of and applied that guidance.

In his Administrative Review application, the applicant additionally claimed that he relied on the “guideline” when completing his application and that the guideline did not include siblings, and he did not therefore consider that siblings counted as family.

Much of Mr Turner’s submissions before us related to advice given to the applicant by an agent to the effect that a sibling did not count as ‘family’ for the purposes of the student application. This explanation was however first advanced in the applicant’s Pre-Action-Protocol Letter. It was not before the respondent, and the respondent cannot therefore be criticised for not considering it. Having found that our jurisdiction is supervisory and that there is no precedent fact issue, we are not permitted to take into account the explanation first advanced in the Pre-Action-Protocol Letter.

Mr Turner nevertheless contended that, as asserted in the applicant’s Administrative Review application, “the guideline” that he considered when he completed his application did not mention siblings when addressing the existence of ‘family’ in the UK. It is pertinent to note that the applicant did not refer to any other guidance or any other Immigration Rule. The Administrative Review application read, in material part:

“First of all, the ECO has referred the visa application form where I did not include my family details such as my sister. However, on the application form the question is if I have family in the UK and in the guideline it says that in family it includes immediate family such as spouse, civil partner, parents or children, grandparents or grandchildren, spouse or civil partner’s family, child’s spouse, civil partner or partner, my partner if I have lived with them for 2 out of the last 3 years. This guideline clearly shows that there is no mention of siblings and it is not considered to be family.”

The application form completed by the applicant, as detailed in Mr Ouseley’s statement, read:

We note that the description of the application form, set out above, closely matches what the applicant stated in his Administrative Review application. Given that the applicant’s explanation in his Administrative Review application related to the question on the application form and “the guideline” relating to it, it is almost certainly the case that the applicant’s reference to “the guideline” related to the description set out above.

The question relating to whether a person has any family in the UK was broadly phrased in non-exhaustive terms and utilised plain and clear language. Although there was no specific mention of siblings, we find, based on the ordinary and natural meaning of the word ‘family’, that it would be apparent to anyone completing the form by reference to the accompanying “guideline” that they were being asked whether they had any family at all in the United Kingdom, and that this would necessarily include siblings.

In the Administrative Review decision, the respondent engaged with and rejected the applicant’s explanation that he did not provide details about his sister because he did not consider her to fall under the definition of ‘family’. The respondent noted that the applicant’s explanation in his 2^nd interview was based on the geographical location of his sibling (the applicant in effect explained that he believed the question related to where he was living in UK; as he would be living in Southampton and as his sister lived year Heathrow, he did not mention her). The respondent noted that the questions in the application form and during the applicant’s 1^st interview were clear and that he confirmed that he had understood them. We have noted that the application form question was in non-exhaustive terms and the question itself was straightforward. We are also satisfied that the question posed to the applicant in his 1^st interview was clear and unambiguous. He was asked whether he had any family “in the UK.” There was no indication from the applicant when this question was asked that he did not understand what was meant by “any family in the UK.” We do not find the respondent acted irrationally in concluding that a student applicant completing the application form would reasonably understand the question to relate to all relatives. This would necessarily include siblings. The respondent was rationally entitled to conclude that the question in the application form was sufficiently clear so as to put an applicant on notice that they must mention whether they have a sibling living in the UK.

There was no indication before the decision-makers that the applicant had studied other guidance or been advised in respect of other immigration guidance. We are satisfied that these matters have been raised after the event in an attempt to justify the applicant’s answer. We have nevertheless considered the other guidance to which Mr Turner drew our attention, particularly in the light of the comments by the Court of Appeal concerning the need for greater clarity about whether there is Home Office Guidance as to the meaning of ‘Family’ and whether it includes siblings.

There is no general definition of family in the interpretive section at paragraph 6 of the Immigration Rules. The Home Office guidance for students did not make any specific reference to who was and who was not considered ‘family’ in the United Kingdom. Although it was not specifically drawn to our attention we note that the relevant guidance on students included, with reference to child students, a definition of ‘close relative’ that did include siblings. We additionally note that the guidance for part 1 of the Family Settlement application form provided by the applicant for the purposes of the hearing indicated that “close relatives” included “brother” and “sister”.

The applicant relied on the respondent’s guidance ‘Study in the UK on a Student visa’, but this did not contain any definition of ‘family’ that an applicant may have in the United Kingdom. The section upon which Mr Turner relied was headed “Your partner and children” and concerned the ability of a student’s partner and children (referred to as ‘dependents’) being able to apply to come to the UK or stay longer in the UK. This section was concerned with those wishing to accompany or join a student in the UK who fell within a particular familial relationship. The guidance indicated that a Tier 4 (General) Student could apply to bring their partner and/or children into the UK. It did not define ‘family’, still less did it purport to provide more extensive guidance on what was meant by ‘family’ in the context of a student application.

Mr Turner also relied on ST 28 of the “Appendix Student” to the Immigration Rules, but this too specifically related to the requirements for entry clearance or permission to stay of a dependent partner or a dependent child of a student. The Appendix did not purport to define ‘family’, whether in the United Kingdom or otherwise, and cannot reasonably be considered to give any guidance on the completion of the student application form.

The other Immigration Rules and guidance upon which Mr Turner relied related in the main to categories of individuals seeking to enter the UK based on their familial relationship with a person holding an immigration status allowing for such entry. These categories, many of which are under Part 8 of the Immigration Rules and Appendix FM, are highly specific. Part 8 of the Immigration Rules relates to ‘Family Members’ and not to the more general term ‘family’, and concerns applications for entry clearance and permission to remain by those within closely defined familial relationships. The same can be said of Appendix FM to the Immigration Rules. The guidelines relating to these categories are not aimed at those contemplating or making applications in the Tier 4 (General) Student category, and student applicants are not directed to consider any of these other categories or the guidance related to these categories.

Mr Turner submitted that there was a failure by the respondent to consider the voluntary disclosure by the applicant that he had a sister in the UK and that this should have been considered as it undermined the allegation that he intended to deceive.

We have already indicated that we were not provided with either an extemporaneous note of the conversation between the applicant and the Immigration Liaison Officer at the airport, or with a summary of that conversation. We note that in his statement dated 10 May 2020 the applicant said he was stopped at the airport just before boarding the plane and was asked by the Immigration Liaison Officer about his UK arrangements, and in his response he disclosed that he had a sister in the UK. In his Administrative Review application the applicant said that the Immigration Liaison Officer asked him if he had relatives in the UK and who was picking him up from the airport, to which he stated that his sister would pick him up.

We are satisfied that the applicant’s disclosure of his sister was prompted by specific questions asked of him by the Immigration Liaison Officer concerning his arrangements on his arrival in the UK. It is apparent from question 14 of the 2^nd interview that the respondent was aware of the circumstances in which the applicant disclosed the existence of his sister. We additionally note that the 1^st decision accurately referred to the chronology of events, including the questioning of the applicant at the airport. We are not persuaded that the respondent failed to take account of the circumstances in which the disclosure occurred, or that the respondent failed to take into account the fact that the applicant voluntarily disclosed his sister’s presence in the UK.

We do not consider that the fact that this information was voluntarily disclosed in response to questions from the Immigration Liaison Officer to materially undermine the lawfulness of the respondent’s view that the applicant purposely failed to disclose his sister’s existence. In circumstances where the applicant has given different explanations for his omission, and in circumstances where he could have, but failed to mention his alleged confusion about the meaning of ‘family’ in his 2^nd interview, we are satisfied that it was open to the respondent to find that the failure of disclosure was intentional and therefore dishonest. We remind ourselves that we are not deciding for ourselves whether the applicant has been dishonest but whether, in reaching her decision, the respondent was lawfully entitled to so conclude for the reasons given, and that in reaching this decision she took into account all relevant considerations and did not place weight on relevant matters.

We are mindful of the comment made by Lady Justice Rose that there appeared to be agreement that having or not having a sister in the UK would not have affected the applicant’s application for a student visa. We are unclear as to the source of this agreement, although it may stem from the observation by Judge Perkins set out in paragraph 21 above.

We note that the Court of Appeal was not purporting to make any factual findings nor to decide any issues given that its comments were made at the permission stage and on the papers alone based on the applicant’s submissions. We acknowledge that the presence of a sibling in the UK would not necessarily have affected the applicant’s application for entry clearance. We are however satisfied that the respondent was rationally entitled to consider the presence of family in the UK as a material fact relevant to an application for entry clearance.

Whether the applicant had family members in the UK was a factor relevant to determining the applicant’s genuine intentions. The presence of family members may be relevant in ascertaining whether an applicant genuinely intended to leave at the end of his period of leave; if he had family members in the UK he may wish to remain living here to be close to those family members. The assessment undertaken by the respondent of a person’s intentions will consider, amongst other things, the strengths of an applicant’s links to the UK and factors that may tend to make it more likely that a person will remain in the UK after their leave has expired. We are consequently satisfied that the presence of the applicant’s sister in the UK was a material fact in relation to his entry clearance application, and that the respondent was entitled to treat it as a material fact.

The applicant’s judicial review grounds contend, in insufficiently particularised terms, that the respondent’s decisions were procedurally unfair because, based on Balajigari, the applicant would not be permitted to adduce further evidence to show he had not been dishonest, and because the respondent was aware that the applicant had a sister in the UK prior to his 2^nd interview “…but still attempted to undermine the Applicant’s credibility.” Mr Turner did not develop this aspect of the judicial review challenge in either his skeleton argument or his oral submissions.

To the extent that the challenge may suggest that further evidence could not be provided at the Administrative Review stage following a refusal under paragraph 320(7A), AR2.11(a)(i) of ‘Appendix AR Administrative Review’, indicates that ‘case working error’ includes a situation where the original decision maker’s decision to refuse an application on the basis of paragraph 320(7A) was incorrect, and, under paragraphs AR2.4(a) and AR2.11(a), it is open to the applicant to adduce further evidence in support of the Administrative Review application.

Following the revocation of his entry clearance the applicant was invited to a 2^nd interview. The respondent’s concerns regarding the applicant’s omission in respect of his sister were put to him during the 2^nd interview, and he was given an adequate opportunity to respond to those concerns. We do not accept Mr Turner’s contention that the applicant did not know why his entry clearance was revoked when he underwent his 2^nd interview. At questions 7 and 8 the applicant was told that he had been denied boarding at the airport because of concerns relating to his credibility, and at questions 9 to 15 he was expressly told that the credibility concern arose from his answers relating to whether he had any family in the UK.

We are not persuaded that there was any procedural unfairness in relation to the 2^nd interview, and we find it was conducted in compliance with guidance given in R (Mushtaq) v ECO (ECO - procedural fairness) IJR [2015] UKUT 224 (IAC) and R (Anjum) v ECO (entrepreneur-fairness generally) [2017] UKUT 406 (IAC). We are satisfied that the 2^nd interview, which occurred before the challenged decisions were made, constituted a lawful opportunity for the respondent’s concerns to be put to the applicant, and for him to respond to those concerns. The applicant was unarguably given a fair opportunity to respond to those concerns prior to the adverse decision being made. There is no procedural unfairness.

For the reasons given above we find that the respondent’s decision was lawful. We consequently refuse the judicial review challenge.