R Saud Akram v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lady Justice Carr |
| Judgment Date | 12 August 2020 |
| Neutral Citation | [2020] EWCA Civ 1072 |
| Docket Number | Case No: C6/2016/4424 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 August 2020 |
[2020] EWCA Civ 1072
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPEPR TRIBUNAL JUDGE KEBEDE
Claim No JR/6628/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Lady Justice Carr
Case No: C6/2016/4424
Jay Gajjar (instructed by Ashton Ross Law) for the Applicant
Zane Malik (instructed by Government Legal Department) for the Respondent
Hearing date: 12 August 2020
Approved Judgment
Introduction
In this appeal, the Applicant sought to challenge the decision of Upper Tribunal Judge Kebede dated 16 November 2016 refusing his application for permission to proceed with a judicial review of the Secretary of State's decision of 28 April 2016 (maintained on administrative review on 31 May 2016) to refuse his application for indefinite leave to remain. On 18 June 2017, I refused permission to appeal. The Applicant now seeks permission to reopen the appeal under CPR rule 52.30.
The refusal of permission to appeal was a final determination of the appeal for the purposes of CPR rule 52.30(1), which provides that:
“The Court of Appeal… will not reopen a final determination of any appeal unless —
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.”
Therefore, unless each of these criteria is satisfied, the court has no power to reopen an appeal. If they are each satisfied, then the court has a discretion to do so; although it may be difficult to envisage, in practice, circumstances in which the three criteria are satisfied and the court's discretion exercised not to reopen the appeal.
The reopening of an appeal is approached in the same way as the reopening of a final judgment after full argument, in accordance with the principles set out in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 and, more recently, in Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514; [2015] HLR 9 at [65], R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 1860; [2018] 1 WLR 5161 at [10]–[11] and [15] and Singh v Secretary of State for the Home Department [2019] EWCA Civ 1504 at [3]. It is an exceptional jurisdiction, to be exercised rarely. It will not be exercised simply because an earlier determination was (let alone, may have been) wrong, but only where there is a “powerful probability” that the decision in question would have been different if the integrity of the earlier proceedings has not been critically undermined. The injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation.
Before us, Jay Gajjar of Counsel has appeared for the Applicant, and Zane Malik of Counsel for the Secretary of State. At the outset, I thank them both for their helpful submissions.
The Facts
The Applicant is a Pakistan national born on 1 August 1984.
He arrived in the United Kingdom on 21 January 2009 with leave to enter as a student until 30 September 2010 which was later extended to 29 April 2012.
On 1 April 2011, he applied for further leave to remain as a Points-Based System Tier 1 (General) Migrant. In that application, he declared that, for the period 16 March 2010 to 15 March 2011, he had total earnings of £38,267.58, namely £14,212.58 salaried earnings from Medina Processing Limited and £24,055 self-employed earnings trading as SA Party Decorators & Catering. Those earnings were supported by bank statements, accounts and an accountants' letter. For that aggregate level of earnings, he was awarded 20 points, sufficient for the purposes of obtaining his further leave to remain. However, in his tax return for the year 2010–11, he declared only £734 earnings from self-employment, a matter to which I shall return.
The Applicant's application for leave to remain was granted; and was later extended to 11 May 2016.
On 27 April 2016, he applied for indefinite leave to remain on the basis of five years residence. No separate article 8 claim for leave was made. With that application, he submitted documents concerning a revised tax calculation for the year 2010–11 dated 21 April 2016 following a declaration by the Applicant to HM Revenue & Customs (“HMRC”) of further self-employed income for that year taking that income from the £734 originally declared to £24,055, i.e. in line with the income he had earlier declared to the Secretary of State for that year. That resulted in an additional tax payment of about £5,000. The Applicant also submitted confirmation from HMRC of his declared income for tax purposes and tax paid for the period 2008–9 to 2016–7. In completing the questionnaire which accompanied his application, the Applicant explained the discrepancy in his declared income for 2010–11 and its recent correction: he said that the tax return for that one year was found to have typing error and “got amended & updated & tax paid”.
The application was refused the following day under paragraph 245CD(b) read with paragraph 322(5) of the Immigration Rules. Paragraph 245CD(b) provides that an applicant must not fall for refusal under the general grounds for refusal, which include as paragraph 322(5), as a ground upon which leave to remain “should normally be refused”:
“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions…, character or associations or the fact that he represents a threat to national security.”
In refusing the 2016 application for indefinite leave to remain, having referred to the declaration of income for 2010–11 in the 1 April 2011 application, the decision-maker on behalf of the Secretary of State said:
“Information held on your earnings declared to [HMRC] for the tax year 2010–11 confirmed the following:
[HMRC] data confirmed for the tax year ending April 2011 your total income from all employment was £19,969, of which profitable income from self-employment was £0.00.
At your appointment on 28 April 2016 at Sheffield Premium Service Centre you were asked to complete a questionnaire regarding your economic activities and your earnings from your employment. Question 9 of the questionnaire asked:
Q — Are you satisfied that the self-assessment tax returns submitted to HMRC accurately reflect your self-employed income?
A — You ticked ‘Yes’ to indicate you are satisfied that the self-assessment tax returns submitted to HMRC accurately reflect your self-employed income.
Were it accepted that the figure declared to the Home Office was an accurate representation of your earnings between March 2010 to March 2011, your actions in failing to declare your earnings in full to [HMRC] would lead your application to be refused under paragraph 322(5) of the Immigration Rules based on your character and conduct.
It is noted that you have attempted to retrospectively declare claimed earnings to [HMRC]. The fact that you made an amended return to HMRC on 21 April 2016 is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with [HMRC].
It is acknowledged that a refusal under paragraph 322(5) would not be mandatory, it is noted that there would have been a clear benefit to yourself either by failing to declare your full earnings to [HMRC] with respect to your tax liability or by falsely representing your earnings to UK Visas & Immigration to enable you to meet the points required to obtain leave to remain in the United Kingdom as a Tier 1 (General) Migrant. Given these factors it is considered a refusal under paragraph 322(5) of the Immigration Rules is justified.
Accordingly, I am satisfied that your presence in the United Kingdom is not conducive to the public good because your conduct makes it undesirable to allow you to remain in the United Kingdom”.
The Applicant sought an administrative review of that decision. Without lodging any further evidence, the Applicant submitted that, for the year 2010–11, he had declared some self-employed income (£734) which showed that he had the intention of declaring such income; he had corrected the 2010–11 declaration of income made to HMRC and paid the outstanding tax prior to making the 2016 application; and he had made a full declaration of income and paid the relevant tax in all of the years when he had no application for an extension of his leave, all of which showed (the Applicant submitted) that the error in 2010–11 was a single, genuine and honest error. He relied upon his general good character: in addition to paying his tax, he had never been in trouble with the police, had no criminal convictions and had maintained himself without recourse to public funds.
However, on 31 May 2016, on the administrative review, the Secretary of State maintained her refusal decision. In doing so, the decision-maker said: “We have carefully considered the points that you raised in your administrative review”; and she expressly took into account his otherwise good character. In a separate letter of the same date, written in similar terms to the original refusal, the self-employed income as originally declared to HMRC was corrected from nil to £734.
That refusal on the administrative review brought to an end the continued leave to remain the Applicant had enjoyed under section 3C of the Immigration Act 1971 during the pendency of his application; and meant that the Applicant was subject to the so-called “compliant environment” or “hostile environment” provisions of the Immigration Act 2014, so that the Applicant did not (e.g.)...
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