Case No. UKUT-00133-(IAC)

v SSHD [2017] EWCA Civ 2009; [2018] Imm AR 531 (“Ahsan”). 48.Both Balajigari and Ahsan concerned the very particular questions that arose where there were parallel Article 8 ECHR claims concerning dishonesty and also judicial review claims where the same dishonesty matters were relevant to the decisions challenged. In each instance, the Court was concerned with the procedural and resource issues that arose from potential parallel applications and appeals which do not arise here. It was in that context that the Court observed that there was no practical or procedural prohibition on the Tribunal considering factual matters albeit the judicial review procedure was not designed to determine questions of fact. Whether the Tribunal could determine a factual question does not mean that it should do so. There was no Article 8 ECHR claim by this applicant associated with his student visa application, nor could there be one.49.In respect of the ‘post-decision evidence issue’, Ms Anderson submits that this did not arise if the Tribunal was only exercising a supervisory role. Post-decision evidence, submissions and explanations were inadmissible and legally irrelevant on conventional public law principles. The question the Tribunal had to consider was whether the applicant provided the respondent with reliable evidence of an innocent mistake such that no rational Entry Clearance Officer could have concluded on all the available evidence that the general grounds for refusal applied.50.Ms Anderson submitted that there was no issue that the applicant wrongly stated in his application and in his first interview, and initially in his second interview, that he had no family in the UK. The onus was therefore on him to provide an “innocent” explanation and to demonstrate that, despite the misrepresentations, he was a genuine student. The respondent was rationally entitled to conclude that no innocent explanation had been provided. In his second interview the applicant did not refer to any confusion over the definition of ‘family’, nor did he suggest reliance on third-party advice. The applicant did not assert that he had ‘volunteered’ the existence of his family in the UK ‘unprompted’ to the Immigration Liaison Officer rather than respond to questioning about his arrangements. There was no reason why, if this was the actual position, the applicant would not have provided his explanations to the respondent in the second interview.