Ashish Balajigari v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWCA Civ 673 |
| Docket Number | Case No: C6/2017/1214 C6/2017/3465 C7/2018/0290 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2019 |
[2019] EWCA Civ 673
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Hickinbottom
and
Lord Justice Singh
Case No: C6/2017/1214
C6/2017/1482
C6/2017/3465
C7/2018/0290
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
UTJ Gleeson in Balajigari
UTJ Kamara in Kawos
UTJ Frances in Majumder
UTJ Coker in Albert
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Biggs (instructed by Sri Venkateshwara Solicitors) for the Appellant in Balajigari
Mr Alexis Slatter (instructed by Richmond Chambers LLP) for the Appellant in Kawos
Mr Shahadoth Karim (instructed by PGA Solicitors LLP) for the Appellant in Majumder
Mr Parminder Saini (instructed by Vision Solicitors) for the Appellant in Albert
Ms Julie Anderson (instructed by the Treasury Solicitor) for the Respondent in Balajigari
Ms Julie Anderson and Mr Zane Malik (instructed by the Treasury Solicitor) for the Respondent in Kawos, Majumder and Albert
Hearing dates: 23 rd & 24 th January 2019
Approved Judgment
INTRODUCTION
This is the judgment of the Court, to which all its members have substantially contributed.
These four appeals have been heard together because they all arise out of the same Home Office practice, which has attracted considerable controversy. The background was set out in a recent Home Office publication, Review of Applications by Tier 1 (General) Migrants Refused under Paragraph 322 (5) of the Immigration Rules (“the Review”), and can be sufficiently summarised as follows.
At the times relevant to this appeal migrants who had been given leave to enter or remain under the Points-Based System (“PBS”) provided for by Part 6A of the Immigration Rules as “Tier 1 (General) Migrants” (“T1GMs”) were entitled to apply for indefinite leave to remain (“ILR”, otherwise known as “settlement”) after five years. 1 It was a condition of any such application that they demonstrate a minimum level of earnings in the previous year. Such an applicant will already have had one or more finite periods of “further” leave to remain, for the purpose of which he or she will also have had to declare earnings at a required minimum level.
The Home Office became concerned that there was a widespread practice of applicants for leave to remain as a T1GM claiming falsely inflated earnings, particularly from self-employment, in order to appear to meet the required minimum; and from 2015 it began to make use of its powers under section 40 of the UK Borders and Immigration Act 2007 to obtain information from Her Majesty's Revenue and Customs (“HMRC”) about the earnings declared by applicants in their tax returns covering the equivalent period. This information disclosed significant discrepancies in a large number of cases. It also revealed what appeared to be a pattern of taxpayers who had in earlier years submitted tax returns showing earnings that attracted little or no liability to tax subsequently submitting amended returns showing much higher levels of earnings, over the required minimum, in circumstances which suggested that they were aware that the previous under-declaration might jeopardise a pending application for leave to remain. There were also instances of returns being submitted belatedly where none had been submitted at the time and where an application for leave was pending. (A similar pattern was detected in the case of T1GM migrants applying for ILR after ten years under the long-residence provisions of the Rules; but we are not directly concerned with those in these appeals.)
It has been Home Office practice to refuse applications for ILR in all, or in any event the great majority of, cases where there are substantial discrepancies between the earnings originally declared to HMRC by a T1GM applicant (even if subsequently amended) and the earnings declared in the application for ILR or a previous application for leave to remain (“earnings discrepancy cases”), relying on the “General Grounds for Refusal” in Part 9 of the Immigration Rules. Initially it relied specifically on paragraph 322 (2), which applies in cases where an applicant has made a false representation in relation to a previous application. Latterly, however, it has relied,
either additionally or instead, on paragraph 322 (5), which embraces more general misconduct: para. 3.2 of the Review explains that it decided to shift to relying on sub-paragraph (5) in order “to capture the possibility that the applicant had misled HMRC rather than [the Home Office]”. We set out the full text of the relevant Rules at paras. 27 and 28 below. We will refer to refusals of ILR on these grounds as “paragraph 322 refusals”It is the Secretary of State's case that his policy and practice is only to rely on paragraph 322 (5) where he believes that an earnings discrepancy is the result of deliberate misrepresentation either to HMRC or to the Home Office, in other words only where it is the result of dishonesty. But a large number of migrants have claimed that in their cases errors which were the result only of carelessness or ignorance have wrongly been treated as dishonest, and that the Home Office has been too ready to find dishonesty without an adequate evidential basis or a fair procedure. Many have mounted legal challenges. In respect of paragraph 322 refusals between January 2015 and May 2018 there were 625 appeals to the First-tier Tribunal (“the FTT”) 2 and 388 applications to the Upper Tribunal (“the UT”) for judicial review. The majority have not come to a hearing, but as at September 2018 65% of the appeals that had done so had been successful, and a smaller but still substantial proportion of the judicial review claims had either succeeded in the UT or (more often) been conceded by the Home Office.
The Appellants before us are T1GM applicants for ILR whose claims were refused under paragraph 322 (5) on the basis of earnings discrepancies; in one case the Secretary of State relied also on paragraph 322 (2). They have (with, in two of the cases, members of their families) brought proceedings in the UT for judicial review of those refusals. We will give details of the cases later, but in bare outline:
— Mr Ashish Balajigari, who is an Indian national, has been in the UK since August 2007. In June 2016 he applied for ILR as a T1GM. His claim was refused under paragraph 322 (5) on 9 June 2016. The Reasons enclosed with the decision letter relied on a discrepancy between his earnings as declared to HMRC for 2010/11 of £33,646 and earnings for the same period of £42,185 declared in an earlier application for leave to remain. His application for an administrative review of that decision was rejected on 20 July 2016. His application for permission to apply for judicial review was refused by UTJ Gleeson at a hearing on 19 April 2017.
— Mr Avais Kawos, who is also an Indian national, has been in the UK since January 2007. His wife and elder child joined him in 2010; their second child was born here. On 3 February 2016 he applied for ILR as a T1GM. His claim was refused under paragraph 322 (2) and (5) on the same day. The Reasons enclosed with the decision letter relied on a discrepancy between his earnings as declared to HMRC for 2011/12 and 2012/13 totalling £20,000 and earnings for a shorter period spanning both years of £37,402 declared for the purpose of an earlier application. His application for an administrative review of that decision was rejected on 16 March 2016. He was granted permission to apply for judicial review, but the substantive application was refused by UTJ Kamara at a hearing on 6 March 2017.
— Mr Somnath Majumder, who is another Indian national, has been in the UK since October 2006. His wife joined him. In July 2016 he applied for ILR as a T1GM. His claim was refused under paragraph 322 (5) on the same day. The Reasons enclosed with the decision letter relied on the fact that, while he had in a previous application in 2013 declared earnings of about £40,000 for a year straddling the 2012/13 and 2013/14 tax years, he had filed no tax return for either year. His application for an administrative review of that decision was rejected on 22 August 2016. He was granted permission to apply for judicial review, but the substantive application was refused by UTJ Frances at a hearing on 25 September 2017.
— Mr Amor Albert, who is a Pakistani national, has been in the UK since October 2006. In April 2016 he applied for ILR as a T1GM. His claim was refused but following the initiation of judicial review proceedings the Secretary of State agreed to reconsider it. It was again refused, under paragraph 322 (5), on 2 March 2017. The Reasons enclosed with the decision letter relied on discrepancies between his earnings as declared for the purpose of two earlier applications for leave to remain and the earnings declared to HMRC for the corresponding periods. His application for an administrative review of that decision was rejected on 6 April 2017. His application for permission to apply for judicial review was refused by UTJ Coker at a hearing on 30 January 2018.
Each of the Appellants appeals against the dismissal of the refusal of permission to apply for judicial review or of their substantive claim, as the case may be.
There are over 70 other appeals or applications for permission to appeal pending before the Court and an unknown number of challenges pending in the FTT or UT. The intention is...
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