R (on the application of Mansoor) v Secretary of State for the Home Department (Balajigari - effect of judge's decision)

JurisdictionUK Non-devolved
JudgeAllen UTJ
Judgment Date11 March 2020
Neutral Citation[2020] UKUT 126 (IAC)
Date11 March 2020
CourtUpper Tribunal (Immigration and Asylum Chamber)

[2020] UKUT 126 (IAC)

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Allen UTJ

R (On the Application of Mansoor)
and
Secretary of State for the Home Department (Balajigari – Effect of Judge's Decision)
Representation

Ms A Jones, instructed by Farani Taylor Solicitors, for the Claimant;

Mr Z Malik, instructed by the Government Legal Department, for the Secretary of State.

Cases referred to:

Alladin and Others v Secretary of State for the Home Department [2014] EWCA Civ 1334; [2014] WLR(D) 435; [2015] Imm AR 237

Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134; [2018] 1 WLR 2591; [2018] Imm AR 660; [2018] INLR 127

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 680

Balajigari and Others v Secretary of State for the Home Department [2019] BWCA Civ 673; [2019] 1 WLR 4647; [2019] 4 All ER 998; [2019] Imm AR 1152; [2019] INLR 619

MS (India) v Secretary of State for the Home Department [2017] EWCA Civ 1190; [2018] 1 WLR 389; [2018] Imm AR 117

Legislation and international instruments judicially considered:

European Convention on Human Rights, Article 8

Immigration Act 1971, section 3(1)

Immigration Rules HC 395 (as amended), paragraphs 276B & 322(5); paragraphs GEN.3.2, D-LTRPT1.2, R-LTRPT.11 & EX.1 of Appendix FM

Senior Courts Act 1981, section 31(2A)

Immigration — leave to remain — limited leave to remain granted — tax discrepancy cases — Balajigari[2019] EWCA Civ 673 applied — application of guidance by the Tribunal — effect of judge's decision

The Applicant applied for indefinite leave to remain (“ILR”) in the United Kingdom based on long residence. The Secretary of State for the Home Department accepted that he met the long residence requirements under the Immigration Rules HC 395 (as amended) but refused the application pursuant to paragraph 322(5) of the Rules on the ground that the Applicant's conduct was such that it was undesirable for him to remain in the United Kingdom. She concluded that he had acted dishonestly when stating his income in respect of two previous applications made in 2010 and 2013, either by overstating his earnings to satisfy the requirements of the Immigration Rules or by underestimating his earnings to Her Majesty's Revenue and Customs (“HMRC”) to avoid the appropriate tax liability.

On appeal, the First-tier Tribunal (“FtT”) found that the Applicant had knowingly and dishonestly provided inaccurate figures to HMRC in respect of the tax returns. The Judge also noted that the Applicant had provided two different explanations for the discrepancies and no sensible explanation for the absence of any evidence from his accountant. The Judge observed that the ground of refusal relied on by the Secretary of State was discretionary, but saw no basis to exercise discretion in the Applicant's favour. The Judge nonetheless allowed the appeal under Article 8 of the ECHR, concluding it was in the best interests of the Applicant's British citizen child. In March 2019, the Secretary of State granted the Applicant a period of 30 months' limited leave to remain in the United Kingdom.

The Applicant applied for judicial review of the decision to grant limited leave. He contended that, since the FtT found that it was not undesirable to permit him to remain in the United Kingdom, having regard to his relationship with his British child, he should have been granted ILR. He submitted that the decision to grant him discretionary leave was Wednesbury unreasonable. He claimed that the FtT had not applied the correct approach as described in Balajigari and Others v Secretary of State for the Home Department[2019] EWCA Civ 673, which post-dated the FtT's decision. He also pointed out that the Secretary of State had specifically asked for his case to be included within an order made by the Chamber President on 14 June 2019, staying a cohort of ‘Balajigari cases’. In related submissions, the Secretary of State had invited the applicants in those cases to withdraw their claims on the basis that the outcome for each would be the same as if they had pursued the judicial review claim to a conclusion. The Applicant argued that this represented a specific direct promise to him that his judicial review was academic, would be settled and a new decision made, and that he had relied on these assurances to his detriment. He argued that it was unreasonable for the Secretary of State now to proceed on the basis that this was not a cohort case to which Balajigari applied.

Held, refusing the application:

(1) The Court of Appeal held in Balajigari that the Secretary of State's approach in refusing applications for leave to remain in tax discrepancy cases was legally flawed, because she proceeded directly from finding that the discrepancies occurred to a decision that the applicants had been dishonest, without giving an opportunity to proffer an innocent explanation. Moreover, the Secretary of State had not addressed the further questions of whether the dishonesty in question rendered the applicants' presence in the United Kingdom undesirable or whether there were other factors outweighing the presumption if they were removed, or given applicants the opportunity to raise any matters relevant to those questions. The unlawfulness could be avoided for the future by the Secretary of State adopting a ‘minded to’ procedure, thereby informing the applicants of her concerns and giving them the opportunity to show cause why ILR should not be refused by offering an innocent explanation for the discrepancies. Balajigari also made the point that those defects need not lead to a refusal under paragraph 322(5) of the Immigration Rules being quashed if the Tribunal was satisfied that the result would have been the same even if the applicants had been given an opportunity to explain the discrepancies. The process required by the Court of Appeal in Balajigari might be carried out by the Tribunal in effect applying that guidance, such that the Secretary of State's failure to do so was rendered immaterial (paras 28 – 29).

(2) The instant case was not a classic Balajigari case because there had been an appeal, albeit prior to Balajigari being decided, at which the Applicant was given the opportunity to provide explanations. It was clear that the FtT Judge carefully considered the Applicant's explanations and found them to be entirely unsatisfactory. The Judge also went on to examine the discretionary element of the ground of refusal and saw no basis to exercise discretion in the Applicant's favour. On the Judge's findings the Applicant had been dishonest on two separate occasions and there were no sufficiently strong mitigating factors in his favour. It was clear that the process required by the Court of Appeal in Balajigari was carried out. The Applicant had every opportunity to put before the Judge explanations for the discrepancies and significantly failed to do so. It was because of that decision that the Secretary of State decided to grant the Applicant limited leave rather than ILR. Contrary to the Applicant's submissions, the FtT did conduct the required two-stage process and there was no basis for the suggestion that it was Wednesbury unreasonable to grant him discretionary leave. In the light of the FtT's finding of dishonesty, it would have been surprising if the Secretary of State granted ILR, bearing in mind the terms of paragraph 276B(ii) of the Immigration Rules (paras 30 – 35).

(3) There was no merit in the Applicant's argument concerning the initial inclusion of his case in the Balajigari cohort and what was said in the Secretary of State's accompanying submissions. It was fully open to the Secretary of State to decide ultimately that this was not a case that fell to be treated as a Balajigari case because of its...

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6 cases
  • Upper Tribunal (Immigration and asylum chamber), 2021-01-27, [2021] UKUT 34 (IAC) (Binaku (s. 11 TCEA; s. 117C NIAA; para 399D))
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    • Upper Tribunal (Immigration and Asylum Chamber)
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    ...refused by the respondent in reliance on that finding. That was the situation in Mansoor (Balajigari - effect of judge’s decision) [2020] UKUT 126 (IAC), a decision which we regard as consistent with Devani and unsupportive of Mr Malik’s current position. The applicant in that case had been......
  • Binaku (S.11 TCEA; S.117C NIAA; Para 399D)
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • January 27, 2021
    ...Imm AR 350 R (on the application of Mansoor) v Secretary of State for the Home Department (Balajigari — effect of judge's decision) [2020] UKUT 126 (IAC); [2020] Imm AR 956 Rexha (S.117C – earlier offences) [2016] UKUT 335 (IAC); [2016] Imm AR 1426; [2017] INLR 412 Secretary of State for th......
  • Upper Tribunal (Immigration and asylum chamber), 2021-01-27, HU/11100/2019
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • January 27, 2021
    ...refused by the respondent in reliance on that finding. That was the situation in Mansoor (Balajigari - effect of judge’s decision) [2020] UKUT 126 (IAC), a decision which we regard as consistent with Devani and unsupportive of Mr Malik’s current position. The applicant in that case had been......
  • Upper Tribunal (Immigration and asylum chamber), 2021-01-25, JR/00214/2020
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    • Upper Tribunal (Immigration and Asylum Chamber)
    • January 25, 2021
    ...refer to any of the other authorities cited by Mr Sharma in support of this ground. Ashfaq [2020] UKUT 226 (IAC), R (Mansoor) v SSHD [2020] UKUT 126 (IAC), Pathan [2020] UKSC 41 and R (Topadar) v SSHD [2020] EWCA Civ 1525 concerned different circumstances altogether and do not bear, in my j......
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