The Court of Appeal (CoA) has recently delivered a strong message to those challenging immigration decisions, that procedural precision is not just a formality, but the very bedrock upon which judicial review claims must be built.
Background:
The appellant, a Pakistani national, was refused entry clearance (EC) as a visitor to the UK for the third time in a decision dated 26 October 2022. This decision was a reconsideration of an earlier refusal from November 2021, which itself followed a previous refusal.
In her application form, the appellant stated that she wished to visit one of her sons who was living in the UK, that she would stay with him, and that she would return to Pakistan "by the end of April". She stated that she was unemployed and that she received rental income from her commercial property of PKR 40,000 (£175) per month. Her outgoings were PKR 30,000 (£128) per month. One of her sons in the UK regularly sent her money to help with her support in Pakistan. She planned to spend around £1,300 on her trip. She had other assets, including savings of around £10,000. Her sponsors, namely, her two sons who live in the UK, would provide her with accommodation and pay for her maintenance whilst she was in the UK.
The Secretary of State (SSHD) refused the latest application because she wasn't satisfied that the appellant met the genuine visitor requirement. One key reason was that the appellant had answered "no" on the visa application form when asked if she had ever been refused a visa for any country, including the UK. However, records showed she had been refused a UK visa in 2008 and 2010.
The refusal letter also cited concerns about the appellant's strong family ties to Pakistan, ensuring her return, as she was separated from her spouse, and her two sons live in the UK.
The Upper Tribunal (UT) initially denied permission for judicial review of the 2021 decision. However, permission was granted due to the failure to consider rent receipts from January 2020 to June 2021. This resulted in a Consent Order in October 2022. The judicial review contended that there was some procedural unfairness in the “repetition of old reasons despite the grant of permission in JR”.
Decision:
The CoA dismissed the appeal, noting that “even if it had crossed the threshold for permission to proceed, it was at least highly likely that the outcome for the appellant would have been the same even if the conduct of which she complains in that ground had not occurred.”
Unpleaded grounds and the late introduction of new arguments were rejected. The Court rejected the argument that he refusal letter's language implied dishonesty, requiring a "minded to" process. The Court rejects the wider, unpleaded argument due to procedural rules in Talpada. There is no unfairness in refusing to consider late, broad arguments.
While noting the procedural issues, the Court still considered the core appeal ground, namely the lack of notice about the 2010 refusal. The reasoning here focuses on why this ground was not sufficiently arguable to warrant permission.
The ruling clarifies that the procedural fairness requirements in this case, involving an inaccurate answer, not a direct allegation of dishonesty under Part 9 of the Immigration Rules, are different from those where dishonesty is asserted.
Implications:
This judgement serves as a strong reminder to legal practitioners and applicants alike that strict adherence to procedural rules is paramount in judicial review claims concerning immigration matters. The Court's clear disapproval of "informal case expansion" signals that attempts to introduce new grounds late in the process, especially without formal amendment, are unlikely to be well-received.
The ruling clarifies that not every perceived oversight or failure to notify an applicant of a concern will automatically constitute procedural unfairness requiring a "minded to" process. The context of the case, the nature of the information in question, namely an inaccurate answer versus an allegation of dishonesty, and the stage of the proceedings are all relevant factors.
Finally, this case underscores the need for applicants to be thorough and accurate in their initial visa applications. Failing to disclose relevant information, even if due to oversight, can be held against them and may not necessarily trigger a requirement for the SSHD to seek further clarification before refusal, especially if the question was direct and unambiguous.
