Wahid, R v Entry Clearance Officer

(As Approved)

Introduction

This is an appeal against the order of Upper Tribunal Judge Frances (“the Judge”) dated 29 June 2020 refusing permission to bring judicial review proceedings against the decision of the Entry Clearance Officer (“the ECO”) on 5 February 2020 to refuse to grant the applicant (“Mr Wahid”) entry clearance as a visitor (“the refusal decision”). It is said to raise, amongst other things, the question of whether the procedural safeguards identified in Balajigari v SSHD [2019] EWCA Civ 673 (“ Balajigari”) in cases of alleged dishonesty apply to applications for entry clearance.

The court has had the benefit of able submissions from Mr Gajjar for Mr Wahid and Mr Malik for the ECO.

The Facts

Mr Wahid is a married Pakistani national, now 33 years old. He is an advocate of the High Court of Sindh and a practising legal consultant. In 2006, he was granted leave to enter the UK as a student until 31 October 2009. He commenced studies for a LLB at Leeds University.

In April 2009, Mr Wahid, then 21 years old, was convicted on his guilty plea entered at the first opportunity to a driving offence (“the driving conviction”). The circumstances of the offending were that he had permitted a friend to drive his car without a licence or insurance. By way of sentence, he received a short driving ban and a fine and penalty, both of which were duly paid. Mr Wahid completed his LLB in August of the same year and then made an in-time application for further leave to remain as a student.

In December 2009, his leave to stay as a student was extended to 1 July 2011. Mr Wahid studied for a LLM at Liverpool John Moores University, a course which he completed in March 2011. He made a second in-time application for extended leave to stay as a student which again was granted, leave being extended until 14 January 2012. On 4 January 2012, following an application in November 2011, Mr Wahid was granted leave to remain as a Tier 1 (PSW) migrant until 4 January 2014.

On 6 July 2012, Mr Wahid was travelling from London to Pakistan. His bags were checked by security officers at Heathrow Airport and found to contain a blunt Spanish butterfly knife on a keychain. It was considered a prohibited item. The officers are said to have apologised when explaining to Mr Wahid that the police needed to be called as a matter of protocol. Mr Wahid was taken to a police station and interviewed. He was not charged. He states that he was told, in terms, that no further action would be taken.

I refer to this as “the butterfly knife incident”. The police record database suggests that Mr Wahid was, in fact, cautioned on this occasion “for possessing dangerous articles on aerodrome”. No written caution, signed or unsigned, (or any copy of such a caution) has been put in evidence. Mr Wahid left the UK in 2012.

On 20 January 2020, Mr Wahid submitted an application for a visitor visa (“the visa application”) in order, amongst other things, to attend his wife's graduation ceremony in London. His arrival and departure dates were 28 February and 14 March 2020 respectively. He was asked, amongst other things, whether he had ever had in the UK a criminal conviction or a penalty for a driving offence or “a caution, warning, reprimand or other penalty”. In answer, he declared the driving conviction but made no reference to the butterfly knife incident or, more specifically, to any caution. By sending the form he declared its contents to be correct true to the best of his knowledge and belief. Mr Wahid's position is that he was wholly unaware of any caution in respect of the butterfly knife incident at the time of his application in 2020.

The Refusal Decision

As already mentioned, the refusal decision was dated 5 February 2020. The ECO refused the visa application under paragraph V3.6 of Appendix V to the Immigration Rules on the basis that the applicant, Mr Wahid, had made false representations. The refusal decision stated as follows:

“… you have answered ‘yes’ … and have provided details of a motoring offence on 4 April 2009; however, our records show that you also received a police caution on 06/07/12 for an unrelated incident to that which you declared. It is not clear to me why you would declare details of a motoring offence of 04/04/2009 but not declare a subsequent police caution on 06/07/2012. This represents a clear intention to conceal your personal circumstances and your previous police caution in the UK and I am satisfied to a high degree of probability that this false representation was not an innocent mistake and constitutes an intention to deceive for the following reasons: you have not acknowledged your police caution in the UK in your application or, under the ‘Extra Information Section’, nor have you submitted any documentation to declare this caution. I am, therefore, satisfied that you have made false representations in support of your current application and I am also satisfied that you have used deception. Your application is, therefore, refused under V3.6 of the Immigration Rules.”

There was no right of appeal or right to administrative review of the refusal decision.

Procedural History

Following pre-action protocol correspondence, Mr Wahid commenced these proceedings in March 2020. Two grounds of claim are raised: procedural unfairness and irrationality. The proceedings were and remain contested in their entirety.

Upper Tribunal Judge Kekic refused permission on 21 April 2020 in a decision sent to the parties on 7 May 2020. Mr Wahid renewed his application for permission orally before the Judge on 29 June 2020.

The Judge found that the refusal decision was not arguably irrational or unlawful nor was it procedurally unfair:

“… 5. The respondent properly applied the relevant Immigration Rules. The decision was not arguably unlawful or irrational. There was no lack of clarity o[r] lack of reasoning in the decision.

6. I am also not persuaded that the decision was procedurally unfair. The applicant disclosed his conviction in 2009 and he attended the police station in 2012. It is accepted the knife was in his luggage and it was a prohibited item. The fact that the applicant claims he was unaware of the caution being recorded against him is not material. An interview or minded to refuse letter would not have altered the factual situation.

7. The decision of 5 February 2020 was not arguably unlawful, irrational or procedurally unfair.”

The Grounds of Challenge

For Mr Wahid, Mr Gajjar submits that the refusal decision was at least arguably unlawful and that permission to bring the claim should have been granted. He identifies that there are three central questions to be considered. First, whether or not there was procedural unfairness in reaching a conclusion on deception without offering Mr Wahid, an opportunity to give any explanation. Secondly, whether or not the language used by the ECO rationally and safely allowed the ECO to reach the conclusion of deception that he did. Thirdly, whether on the facts the ECO was entitled to reach the conclusion on dishonesty that he did. Materiality is a consideration tied into this third question.

As to the first question, Mr Gajjar submits that the refusal decision gave rise to an arguable case of procedural unfairness. Following Adedoyin v SSHD [2010] EWCA 773 (“ AA”) (at [43], false representations require dishonesty to be established. Mere non-disclosure does not establish that. Dishonesty is not a foregone conclusion. The authorities of Balajigari and the decision of Saini J in Karagul & Ors, R (on the application of) v SSHD [2019] EWHC 3208 (“ Karagul”) (at [102] and [103]) lay down general principles setting out the procedural safeguards that decision-makers are obliged to adopt when alleging dishonesty. o

The ECO's suggestion that these procedural safeguards do not apply to applications for entry clearance is both flawed and dangerous for a number of reasons: (i) one should not seek to undermine the importance of entry clearance decisions; (ii) fundamentally,...