The Queen (on the application of Bijendra Giri) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Beatson,Lady Justice King |
| Judgment Date | 28 July 2015 |
| Neutral Citation | [2015] EWCA Civ 784 |
| Docket Number | Case No: C4/2014/1475 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2015 |
[2015] EWCA Civ 784
Lord Justice Richards
Lord Justice Beatson
and
Lady Justice King
Case No: C4/2014/1475
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Jay
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik (instructed by Malik Law Chambers Solicitors) for the Appellant
Lisa Giovannetti QC and Mathew Gullick (instructed by Government Legal Department) for the Respondent
Hearing date: 14 July 2015
This is an appeal against an order of Jay J, made on 9 April 2014, by which he dismissed the application of the appellant, Bijendra Giri, for judicial review of the Secretary of State's decision dated 13 July 2011 refusing the appellant's application made on 21 April 2011 for leave to remain in the United Kingdom as a Tier 1 (Post-Study Work) Migrant.
The respondent refused the application pursuant to paragraph 322(1A) of the Immigration Rules ("the Rules"), which provides:
" Grounds on which leave to remain and variation of leave to remain in the United Kingdom are to be refused
…
(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed in relation to the application."
The refusal in this case was on the ground that the April 2011 application form failed to disclose a material fact. On that form the appellant answered "No" to the question whether he had ever used deception when seeking leave to enter or remain. In February 2006, however, he had used deception in an application for entry clearance, by supplying false documents. He did not succeed in the February 2006 application but he applied again in August 2006 and, despite admitting in interview that he had supplied forged documents on the previous occasion, he was granted entry clearance. He entered the United Kingdom on 6 September 2006 and was subsequently granted successive one-year extensions of his leave, the last of which was due to expire on 22 October 2011. The reasons why entry clearance was granted on the August 2006 application and why leave was subsequently extended are not clear. Whatever happened earlier, the fact is that when it came to the April 2011 application he answered "No" to the question about the previous use of deception and that this was relied on as a failure to disclose material facts.
As the appellant's existing leave did not expire until 22 October 2011 and the Secretary of State did not make a decision to remove him (or any other immigration decision engaging a right of appeal), he did not have a right of appeal to the First-tier Tribunal against the refusal of his April 2011 application. That is why the challenge to the decision was made by way of judicial review.
Following the filing of the judicial review claim form on 4 August 2011, the Secretary of State reconsidered the application and sent a fresh decision letter, dated 10 October 2011, confirming the previous decision. There is no material difference between the decision letters and I propose to concentrate on the original decision of 13 July 2011.
In his judgment on the hearing of the substantive claim for judicial review, Jay J's reasoning was in summary as follows:
i) On the basis of the documentary evidence and the witness statement of the official who took the decision, the judge said that the decision was not one that he himself would have reached, or at least he would not have reached it for the reasons given by the deponent, but he could not conclude that the decision was Wednesbury unreasonable (paragraph 17).
ii) He pointed to the further evidence placed before the court in the form of the appellant's own witness statement, in which the appellant sought to persuade the court that he had neither submitted forged documents in 2006 nor admitted subsequently in interview that he had done so. The judge found that evidence utterly unconvincing (paragraph 19). This fed in to his conclusion summarised at (iv) below.
iii) The judge was inclined to the view that this was a "precedent fact" case in which it was for the court to decide as a matter of fact whether or not deception was used in the April 2011 application, rather than to review on Wednesbury grounds the decision of the Secretary of State on that matter (paragraphs 23–28).
iv) He found it unnecessary, however, to reach a decision on that point, because he was satisfied that even if the case was approached as one of precedent fact, i.e. on the most favourable view of the law from the appellant's perspective, the claim must fail (paragraphs 29–32). Applying "an ordinary balance of probabilities criterion", he was satisfied that the answer given to the relevant question in the application form was dishonestly false. He said: "I have absolutely no doubt that it was false in objective terms since the evidence demonstrates beyond peradventure, for the reasons I have already given, that deception was used when seeking leave to enter on a previous occasion, namely in February 2006". Picking up the point summarised in (ii) above, he stated further that it was not possible to reconcile the appellant's witness statement with a process of reasoning which exonerated the appellant.
The appeal against that judgment gives rise to two main issues. The first, raised by way of a respondent's notice served by the Secretary of State, is whether the role of the court in the present context is to determine for itself, as a "precedent fact" or "jurisdictional fact", whether deception was used, or to review on normal public law grounds (for which the expression " Wednesbury principles" is a shorthand) the Secretary of State's decision that deception was used. The second issue, for which Bean LJ gave permission to appeal, concerns the standard of proof: if the question is one of precedent fact, is it to be decided on the civil standard of balance of probabilities or, because what is alleged is dishonesty, does some form of "heightened" standard apply?
The argument before us also touched on the question whether, to justify reliance on failure to disclose a material fact within paragraph 322(1A) it is necessary to make a finding of dishonesty. It was held by the Upper Tribunal in Ahmed (general grounds of refusal — material non-disclosure) Pakistan [2011] UKUT 00351 (IAC) that there is a requirement to find dishonesty on the part of the applicant or by someone acting on his behalf, but it appeared that the Secretary of State did not necessarily accept the correctness of that decision. It is unnecessary, however, for us to go into the question on the present appeal because the decision letter itself, after stating that the application was refused under paragraph 322(1A) for failure to disclose material facts, went on to state in addition that the appellant had used deception in the application; and in his witness statement in the judicial review proceedings, the official who took the decision said that he refused the application because the appellant was dishonest in not disclosing a material fact. Although there was a degree of muddle about the way the decision was expressed, the judge approached the matter on the basis that dishonesty was in issue.
The legislative context
We are concerned in this case with the exercise of a discretionary power conferred on the Secretary of State by section 3 of the Immigration Act 1971 ("the 1971 Act"). Section 3(1) provides:
"Except as otherwise provided by or under this Act, where a person is not a British citizen,
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period …."
Leave granted under section 3(1) for a limited period may be extended or varied in other ways pursuant to section 3(3). I shall refer to the grant or refusal of leave as encompassing the grant or refusal of an application to extend leave previously granted.
Section 3(2) requires the Secretary of State to lay before Parliament "statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter". The Rules are the product of that process. It is unnecessary to examine the authorities dealing with the status of the Rules or what must be included within them.
Parts 2–8 of the Rules contain detailed provisions relating to the grant or refusal of entry clearance and leave to enter or remain. Part 9 then sets out "General grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom". Paragraph 322(1A), which I have already quoted, falls within that Part and contains mandatory grounds of refusal.
Paragraph 320(7B) sets out consequences of a finding that the applicant has previously breached the United Kingdom's immigration laws by, inter alia, "(c) being an illegal entrant; (d) using deception in an application for entry clearance, leave to enter or remain (whether successful or not)", subject to certain exceptions. Where it applies, its effect is...
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