Shahanas Kanhirakandan v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Whipple,Lady Justice Asplin,Sir Julian Flaux |
| Judgment Date | 06 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1298 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-000894 |
[2023] EWCA Civ 1298
Sir Julian Flaux, CHANCELLOR OF THE HIGH COURT
Lady Justice Asplin
and
Lady Justice Whipple
Case No: CA-2022-000894
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Mandalia
HU/09929/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik KC and Shahadoth Karim (instructed by Louis Kennedy Solicitors) for the Appellant
Émilie Pottle (instructed by Government Legal Department) for the Respondent
Hearing date: 11 October 2023
Introduction
This is an appeal with the leave of this Court against the decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 24 November 2021 (Judge Mandalia). The Upper Tribunal allowed the Secretary of State's appeal against the decision of the First-tier Tribunal (Immigration and Asylum Chamber) promulgated on 28 October 2019 (Judge Black). The First-tier Tribunal had allowed the appellant's appeal against the decision of the Secretary of State dated 21 May 2019, refusing the appellant's application for leave to remain in the United Kingdom on the basis of long residence in the UK and on the basis of the appellant's private life in the UK.
The UT remitted this appeal to the First-tier Tribunal for a fresh hearing. That remission is not challenged. Unusually, therefore, this appeal is not determinative of the appellant's case, one way or another. The issue on appeal is whether certain findings by the First-tier Tribunal should be preserved for that rehearing. The First-tier Tribunal found that the Secretary of State had failed to discharge the burden of showing that the appellant had been dishonest and that allegations of dishonesty were “unfounded”. The Upper Tribunal held that those findings were based on a material mistake of fact amounting to an error of law, and for that reason should not be preserved. The appellant now appeals that aspect of the Upper Tribunal's decision, arguing that these findings should be preserved.
Background
Appellant's immigration history
The appellant is an Indian national born on 23 February 1984. He arrived in the UK as a student on 19 January 2007. He remained in the UK legally until 26 February 2016, first as a student and later as a Tier 1 migrant.
During this period of legal residence in the UK, the appellant made two applications (dated 5 November 2010 and 12 January 2013 respectively). In the first, he asserted that he had received fees from a company called Iwin Technologies for work done as a self-employed consultant. In the second, he confirmed the truth of that statement in the earlier application.
On 26 February 2016, the appellant applied for indefinite leave to remain (ILR). On 26 August 2016 the Secretary of State refused that application in reliance on paragraph 322(2) of the Immigration Rules, on the basis that the appellant had made a false statement to support his earlier applications in 2010 and 2013. It was the Secretary of State's view that Iwin Technologies was a sham company with no legitimate business activity and that the appellant had been dishonest in supporting his applications with evidence suggesting that he had undertaken work for that company. The refusal was maintained by the Secretary of State on 10 October 2016 following an administrative review.
The Judicial Review
The appellant then issued judicial review proceedings, challenging the Secretary of State's decision dated 26 August 2016. Permission was granted and the matter proceeded to a substantive hearing in the Upper Tribunal before Judge Perkins, who dismissed the judicial review on 31 July 2017.
In his judgment, Judge Perkins noted that he had before him evidence served by the Secretary of State relating to Iwin Technologies, including reports from a forensic accountant who commented on Iwin Technologies and on the appellant's assertion that he had earned fees from Iwin Technologies and Radiant Connect, another company connected with Iwin Technologies. Judge Perkins recorded that the Secretary of State “is now satisfied that Iwin Technologies was a sham business created for the purpose of producing false evidence to support applications for leave to remain in the United Kingdom” and noted the Secretary of State's case that the appellant had made a false statement in his 2010 application by representing that he had earned money from Iwin Technologies as a self-employed consultant ([3]). The conclusion of the forensic accountant was that Iwin Technologies was a sham and that its purpose was to “facilitate the fraudulent applications … and the abuse of the Tier 1 process” ([9]). The judge recorded that the scam (that was the word used by the forensic accountant) involved a fake employer paying sums to the pretend consultant who could then show, allegedly, payment for work done but in each case that payment corresponded to a payment into the company's bank account before payment out to the alleged consultant. Judge Perkins said that “that pattern can be seen in the payments made to this [appellant]” ([11]). The judge concluded on the evidence before him that “the method of operation identified by the forensic accountant, at the very least, could have been happening here” although he qualified that by saying that “the documentary evidence from the bank statements supports but does not prove it conclusively” ([11]). He held that the evidence of legitimate business activity by Iwin Technologies and associated companies was “exceedingly thin” ([12]), that the Secretary of State was faced with “good evidence” that Iwin Technologies was a sham, and that there was evidence that the “method of operation of the scam could be traced to [the appellant]” ([13]). On that basis, it was “open to the Secretary of State to conclude that this was a sham business and that the appellant had been involved in dishonesty” ([13]). Judge Perkins dismissed the judicial review, concluding that the Secretary of State had acted reasonably and reached conclusions open to her on the evidence ([15]).
Subsequent Human Rights Claim
On 18 December 2018, the appellant applied for ILR on human rights grounds, relying on his long period of residence in the UK. The Secretary of State refused that application by letter dated 21 May 2019, on two bases: (i) that he had only spent 9 years 8 months lawfully in the UK (between January 2007 and October 2016) which fell short of the 10 year requirement in paragraph 276B(i) of the Immigration Rules; and (ii) that the appellant had dishonestly used false documents to support previous applications, which meant that the grant of leave to him would not be in the public interest, alternatively he was not a suitable person to be granted leave (applying paragraphs 276B(ii) and 276ADE(1) respectively of the Immigration Rules).
The First-tier Tribunal
The appellant exercised his in-country right of appeal against the Secretary of State's refusal of ILR. No evidence going to the past allegations of dishonesty or the judicial review was produced by the Secretary of State in the course of preparing for or resisting that appeal.
Ms Pottle, who appeared for the Secretary of State on this appeal, accepted with commendable frankness that there was no good explanation for the Secretary of State's failure to produce any evidence of dishonesty before the First-tier Tribunal. She was not instructed for the Secretary of State at that hearing but her understanding was that the Home Office Presenting Officer, who had conduct of the appeal at that stage for the Secretary of State, was asked to conduct the appeal at very short notice on the day, by which point the deadline for the Secretary of State's disclosure was long passed. Ms Pottle accepted that the Secretary of State's evidence as it was put before Judge Perkins, including the evidence of the forensic accountant, and Judge Perkins' judgment in the judicial review (this, compendiously, I shall refer to as the “JR evidence”) should have been disclosed by the Secretary of State as part of her case at first instance.
On 21 October 2019, two days before the First-tier Tribunal hearing, the appellant provided a witness statement to the First-tier Tribunal in support of his appeal. In that statement he asserted, amongst other things, that it was “… important that I am aware of the case against me and all material documents are disclosed properly”; he also said that there was “no material evidence against me that I had acted fraudulently…” (paragraph 9, with similar points being made at paragraph 14). He said that he was a victim of the Iwin Technologies scam (paragraph 9) and that the documents provided in support of his application (in 2010, I infer) evidenced genuine earnings (paragraph 12).
The First-tier Tribunal (Judge Black) heard the appeal on 23 October 2019. At that hearing, Dr Chelvan represented the appellant and, as I have mentioned, a Home Office Presenting Officer represented the Secretary of State. Judge Black recorded in her decision dated 28 October 2019 that at the outset of the hearing Dr Chelvan raised an issue about the absence of any evidence from the Secretary of State relating to allegations of dishonesty and sought to strike out the part of the Secretary of State's decision letter of 21 May 2019 which refused the appellant's claim on the second ground relating to dishonesty. Judge Black refused to deal with the issue in that way and said that the failure to adduce evidence in support of allegations of dishonesty would be a matter relevant to the assessment of evidence (see [9] of the First-tier Tribunal decision).
In the next paragraph, [10], Judge Black recorded that the appellant had given oral evidence and there were no...
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