Case No. UKUT-00133-(IAC)

& Others v SSHD [2019] EWCA Civ 673 has the effect of, or should be interpreted as, requiring the Upper Tribunal to make its own finding on dishonesty in a judicial review claim against a decision that refuses an application under para 320(7A) in circumstances where the decision in question does not give rise to a right of appeal to the First-tier Tribunal (“FtT”). 5.If yes, there is a further arguable issue as to whether the Upper Tribunal, in reaching its decision on the issue of dishonesty, is limited to the evidence that was before the decision-maker(s) as at the date of the decision(s) being challenged or whether it is permitted to take into account evidence that was not before the decision-maker, including oral evidence. If the Upper Tribunal decides that it is limited to the evidence that was before the decision-makers as at the dates of the decision dated 6 February 2020 and the administrative review decision dated 14 February 2020, it would appear that the applicant will not be able to rely upon his explanation that he had been misadvised by a consultant at AIMS Study Abroad because this was only advanced after the administrative review decision had been made. 6.If the answer to 4 above is “yes”, there is arguably a factual issue in the instant case as to whether or not the applicant was dishonest. In that event, the parties will need to address the Upper Tribunal as to the appropriate disposal if dishonesty is established and if dishonesty is not established.” 28.At the hearing on 12 January 2022, having considered submissions from both representatives, we determined whether we had to make our own finding on dishonesty in this judicial review claim against the refusal under para 320(7A) (the ‘precedent fact issue’) as a preliminary issue in the respondent’s favour. We then heard submissions on the remaining grounds and reserved our decision.Summary of legal challengeThe applicant’s submissions29.We summarise the applicant’s submissions, as detailed in Mr Turner’s skeleton argument and his oral submissions. We have condensed Mr Turner’s submissions into five general challenges.The ‘precedent fact’ issue30.Mr Turner relied on several authorities including, inter alia, Balajigari [2019] EWCA Civ 673; [2019] Imm AR 1152 (“Balajigari”) to support his submission that the Tribunal must engage in a fact-finding exercise and determine for itself whether the applicant was dishonest. His essential submission was that the issue of dishonesty in a judicial review challenging a decision taken under paragraph 320(7A) of the Immigration Rules is one of precedent fact requiring the Tribunal to determine the issue for itself.31.Mr Turner relied on paragraphs 92, 95 and 104 of Balajigari to support his contention. He submitted that, given the need to consider the applicant’s explanation against “the minimum level of plausibility” (a reference to [25] in