The case of Balajigari v The Secretary of State for the Home Department [2019] EWCA Civ 673, relates to the issues under Tier 1 General refusals in conjunction with paragraph 322(5) of the Immigration Rules HC395. We have highlighted a few important matters for consideration.
Here are some relevant details taken from the case itself. If you wish to take advice on this matter, then please contact us on 0207 237 3388 or email our team on info@icslegal.com.
The appeal had the following findings:
- A number of appeals brought forward to the Tribunal and Courts is whether paragraph 322(5) applies which considers whether it is “undesirable” for a person to be granted indefinite leave to remain.
- If this does, this case law, as well as many matters before the Tribunal and Courts, is that this paragraph is not mandatory but more of presumptive, in other words, that each matter must be considered correctly.
There must be: (i) reliable evidence of (ii) sufficiently reprehensible conduct; and (iii) an assessment, taking proper account of all relevant circumstances known about the applicant at the date of decision, of whether his or her presence in the UK is undesirable (this should include evidence of positive features of their character). Again, that seems to us a correct and helpful analysis of the exercise required at the first stage, but it will be useful to say something more about the elements in it, especially as they apply to an earnings discrepancy case.
The recognition of dishonesty as a touchstone in the context of the general grounds of refusal, albeit a different ground relating to “false representations”, is consonant with the approach of Rix LJ in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, [2011] 1 WLR 564, at paras. 76-79. At para. 77 he said:
“If it were otherwise, then an applicant whose false representation was in no way dishonest would not only suffer mandatory refusal but would also be barred from re-entry for ten years if he was removed or deported. That might not in itself be so very severe a rule, if only because the applicant always has the option of voluntary departure. If, however, he has to be assisted at the expense of the Secretary of State, then the ban is for five years. Most seriously of all, however, is the possibility … that an applicant for entry clearance … who had made an entirely innocent representation, innocent not only so far as his personal honesty is concerned but also in its origins, would be barred from re-entry under paragraph 320(7B)(ii) for ten years, even if he left the UK voluntarily.”
Martin Spencer J begins para. 32 of his judgment by saying:
“The starting point seems to me to be that, where the Secretary of State discovers a significant difference between the income claimed in a previous application for leave to remain and the income declared to HMRC (as here) she is entitled to draw an inference that the Applicant has been deceitful or dishonest and therefore he should be refused ILR within paragraph 322 (5) of the Immigration Rules.”
At para. 37 (iii) Martin Spencer J said:
“In approaching that fact-finding task, the Secretary of State should remind herself that, although the standard of proof is the ‘balance of probability’, a finding that a person has been deceitful and dishonest in relation to his tax affairs with the consequence that he is denied settlement in this country is a very serious finding with serious consequences.”
In Bank Mellat v HM Treasury (no. 2) [2013] UKSC 39, [2014] AC 700, Lord Neuberger (after having cited at para. 178 the above passage from Doody) said, at para. 179:
“In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute.”
The findings on the above is fundamental to consideration and provides the burden on the Applicant, rather that of the decision maker, here it is concerning the Secretary of State.
The Judge went into his findings of the following:
“The availability of administrative review is not an answer, not least because the applicant is not normally allowed to produce evidence that was not produced before the original decision. That unlawfulness can be avoided for the future by the Secretary of State adopting a “minded to” procedure, which informs applicants of his concerns and gives them the opportunity to show cause why ILR should not be refused by offering an innocent explanation of the discrepancies (which will need to be particularised and documented so far as possible) and/or drawing attention to matters relevant to the “undesirability” or “discretion” issues. In Albert there was (at least arguably) a distinct unlawfulness, in that the Secretary of State failed to make an explicit finding of dishonesty.”
Finally, we find the following is an important matter:
“The two previous points are determinative of the present appeals because the Appellants have in these proceedings challenged the paragraph 322 (5) refusals only on conventional public law grounds. But we have expressed the view in Part B above that if the applicant enjoys a private or family life in the UK which is protected by article 8 of the European Convention on Human Rights – which is likely to be so in the typical case – the notice of liability to removal which is the consequence of refusal of ILR will constitute an interference with those rights which the Secretary of State will have to justify. If the earnings discrepancies relied on were in fact the result of dishonesty that will normally be sufficient justification, but his decision on that question will be reviewable as a matter of fact, whether in the context of a “human rights appeal” or, where no such appeal is available, in judicial review proceedings: the circumstances in which an appeal will be available are considered in Part C.”
