Case No. UKUT-00133-(IAC)

[1984] AC 74, the question of whether someone was an illegal entrant, with reference to paragraphs 9 and 16(2) of Schedule 2 to the Immigration Act 1971, was held as being one of precedent fact because the relevant power in that case, to be able to detain a person for the purposes of removal, was only exercisable if the person was an illegal entrant. Similarly, in In R (A) v Croydon LBC [2009] UKSC 8 the Supreme Court decided that "there is a right or wrong answer" to the question whether an individual is or is not a child and that it was for the Court to determine the answer. Thus, a person being a child was a precedent fact that had to be established prior to a local authority being able to exercise its power under s.20(1) of the Children Act 1989 to accommodate a “child in need.”59. Where a statutory provision requires the existence of a precedent fact it will be for a court or tribunal to determine for itself whether it exists. If the exercise of a particular power is dependent on a precedent fact, a court or tribunal is entitled to consider all available relevant evidence in determining its existence, including evidence that was not before the decision-maker at the date of the challenged decision. This is because the existence of a precedent fact will almost always be a binary choice – either it exists or it does not, and if it does not exist there can be no lawful use of the power. The existence of a precedent fact goes to the legality of a decision, and whether the factual condition is satisfied must be determined by a court or tribunal as part of the question of law as to vires. 60. It is to the empowering legislative provision that one must look when determining whether the exercise of a particular power is dependent on the existence of a precedent fact. In SSHD v Lim & Anor (R, on the application of) [2007] EWCA Civ 773 Sedley LJ noted, at [18]:“…whether something is in truth a precedent fact, absent which the decision-maker has no power to decide anything, or is one of the matters confided, at least initially, to the decision-maker himself, has to depend on the terms of the empowering provision, in this case s.10 of the 1999 Act.”61. In R v SSHD, ex p. Onibiyo [1996] QB 768 Sir Thomas Bingham MR observed, (at 784G – 785B):"The role of the court in the immigration field varies, depending on the legislative and administrative context. Where an exercise of administrative power is dependent on the establishment of an objective precedent fact the court will, if called upon to do so in case of dispute, itself rule whether such fact is established to the requisite standard.”62. In the instant challenge the applicant contends that the existence of false representations, or the existence of the dishonest non-disclosure of material facts in an application, as set out in paragraph 320(7A) of the Immigration Rules, is a condition precedent that the Tribunal must first determine. 63. Paragraph 320(7A) appears in the section of the Immigration Rules dealing with the general grounds of refusal, and the Immigration Rules themselves are established pursuant to s.3 of the Immigration Act 1971. The authority of Giri engaged directly with the interplay between s.3 of the Immigration Act 1971 and the general grounds of refusal in the Immigration Rules. The main issue identified by the Court of Appeal was:…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.” 64. The applicant in Giri applied for leave to remain as a Tier 1 (Post Study Work) Migrant. His application was refused under paragraph 322(1A) of the Immigration Rules (part of the general grounds of refusal concerning in-country applications) on the basis that he failed to disclose material facts. He answered 'no' to a question on his application form inquiring whether he used deception in an earlier application when in fact he previously supplied false documents.65. Richards LJ (with whom Beatson LJ and King LJ agreed), considered Khawaja and