Case No. UKUT-00133-(IAC)

principles” and that “it is not a situation in which their powers depend on some precedent fact the existence of which falls for determination by the court itself”. 46.Ms Anderson also relied on Begum which, she submitted, made similar statements of principle as to the approach on judicial review by Richards LJ in LE (Jamaica) [2012] EWCA Civ 597 when finding that the Court of Appeal did not have jurisdiction to form its own view on facts relevant to the merits of an application for entry clearance and disregard the conclusions of the statutory decision-maker. 47.As to the applicant’s reliance on Balajigari, in that judgment the Court of Appeal noted a distinct jurisdiction to ensure compliance with the duties imposed by s. 6 of the Human Rights Act 1998, and that distinct role may require a modified approach to consideration of that ECHR question (which entails examination of dishonesty as part of the proportionality assessment under Article 8(2) ECHR). This was consistent with the view of the Court of Appeal in Ahsan 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.Relevant legislative framework51.S.3(1) of the Immigration Act 1971 reads:(1) 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;…52.S.3(2) of the Immigration Act 1971 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 Immigration Rules, including those relating to the Points Based System (“PBS”) and the general grounds of refusal, are made under this section. 53.The applicant sought entry clearance under Tier 4 of the PBS as a student. Paragraph 245ZV of the Immigration Rules required an applicant to have a minimum of 30 points under paragraphs 113 to 120 of Appendix A, a minimum of 10 points under paragraphs 10 to 14 of Appendix C, and to not fall for refusal under the general grounds of refusal. The Entry Clearance Officer also had to be satisfied that an applicant was a genuine student.54.The general grounds for refusal of applications are to be found in Part 9 of the Immigration Rules. Part 9 has been amended since the decisions under challenge, but at the relevant time paragraph 320 of the Immigration Rules contained a list of mandatory grounds of refusal of entry clearance, including paragraph 320(7A). Paragraph 320(7A) appears under the heading ‘Grounds on which entry clearance or leave to enter the United Kingdom is to be refused’. It reads,“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 or in order to obtain documents from the Secretary of State or a third party required in support of the application.”55.Paragraph 320(7B) of the Immigration Rules establishes the consequences of a finding that an applicant previously breached the United Kingdom's immigration laws by, inter alia, “using deception in an application for entry clearance, leave to enter or remain (whether successful or not)", subject to certain exceptions. In the case of a person using deception he or she would fall to be refused entry clearance in respect of future applications for a period of 10 years. 56.According to the definitions in the Immigration Rules (paragraph 6) at the relevant time ‘deception’ in paragraph 320(7B) of the immigration rules meant “making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts. “DiscussionPrecedent fact57. We start our assessment of the precedent (or jurisdictional) fact issue with a trite proposition. Judicial review is essentially a supervisory jurisdiction, to be contrasted with an appeal process of reviewing the merits of a decision. The focus of judicial review is the decision-making process. Its concern is whether the decision maker was lawfully entitled to reach his or her decision based on the information made available at the time that the decision was made. 58. The situation is however different where a statutory provision contains a precedent fact. The precedent fact is akin to a trigger which, when activated, enables a particular power to be exercised. The lawfulness of the exercise of power is dependent on the existence of the precedent fact. By way of example, in Ex p Khawaja [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 Bugdaycay v SSHD [1987] AC 514; [1987] Imm AR 250, where the House of Lords rejected an argument that it was for a court to determine whether a person was a refugee in a judicial review challenge to issue removal directions following refusal of an asylum claim. The proper construction of the relevant section of the Immigration Act 1971, which concerned the power to give or refuse leave to enter the UK, was to be exercised by immigration officers, and all questions of fact on which this discretionary power depended had to be determined by the immigration officer. Although the question whether someone was a refugee was clearly an important one, when deciding how to exercise the power, an immigration officer (or the Secretary of State) had to make factual determinations on a daily basis, such as deciding whether a person was a bona fide visitor, or a student, or a business person, and these determinations could, in the absence of a right of appeal, only be challenged using conventional judicial review principles (at pages 522F – 523B). 66. Richards LJ held, at [19] and [20]:“In my judgment, Mr Malik's reliance on the decision in Khawaja was misplaced. The passages I have quoted from Khawaja and Bugdaycay are fatal to his case on this issue. The decision here under challenge is a decision made in the exercise of the power conferred on the Secretary of State by section 3 of the 1971 Act to grant leave to remain in the United Kingdom. The Rules contain detailed provisions as to how the power is to be exercised (though there is a residual power to grant leave even where it falls to be refused under the Rules). Paragraph 322(1A) is one of those provisions. Its application involves findings of fact, but that is true of a multiplicity of provisions in the Rules. If the conditions in it are found to be satisfied, leave must be refused under the Rules, but that, too, is true of many other provisions under the Rules. A finding that the conditions are satisfied has potentially serious consequences (see, in particular, the effect of paragraph 320(7B) as summarised above), but paragraph 322(1A) is again far from unique in that respect. The key point is that the statute confers the power on the Secretary of State, or the immigration officers acting on her behalf, to make the decision whether to grant or refuse leave to remain. It is for the Secretary of State or her officials, in the exercise of that power and in reaching their decision, to determine which provisions of the Rules apply and whether relevant conditions are satisfied, including the determination of relevant questions of fact. On the reasoning in Khawaja and Bugdaycay, their findings on such matters are open to challenge in judicial review proceedings only on Wednesbury principles; it is not a situation in which their powers depend on some precedent fact the existence of which falls for determination by the court itself.” The position would be different if we were concerned not with the exercise of the power under section 3 of the 1971 Act to grant leave to remain but with a decision to remove a person under section 10 of the 1999 Act on the ground that he or she had used deception in seeking leave to remain (see paragraph 13 above). In that event, as a matter of statutory construction, the very existence of the power to remove would depend on deception having been used; and in judicial review proceedings challenging the decision to remove, the question whether deception had been used would be a precedent fact for determination by the court in accordance with Khawaja. Miss Giovannetti QC, on behalf of the Secretary of State, accepted as much. In practice, however, the issue will rarely arise in that form, because decisions under section 10 are immigration decisions carrying a right of appeal to the tribunal, which can review for itself the facts on which the decision under appeal was based, and the existence of that alternative remedy means that judicial review is not available in the absence of special or exceptional factors: see, most recently, the decision of this court in R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744.”67. Nor does it follow that, simply because a particular factual requirement is dependent on a binary choice, the requirement will be one of precedent fact. This was considered in Giri at [25]:“Mr Malik argued that aspects of that reasoning could be transposed to the present context: whether deception has been used is likewise an objective question to which there is a right or a wrong answer, however difficult it may be to determine what that answer is. I do not accept, however, that Lady Hale was intending to lay down any general proposition that because a question is an objective one to which there is a right or a wrong answer, it is necessarily one of jurisdictional fact for ultimate determination by the court. These were simply considerations that formed part of the reasoning in support of her conclusion as to the correct construction of section 20(1) of the 1989 Act.”68. Richards LJ, held at [32], that “the relevant question”, in such judicial review challenges, is simply “whether it was reasonably open to the decision-maker, on the material before him, to find that deception had been used”, and “the finding in question is one of fact” and “issues of proportionality are not relevant to it”.69. Although the instant challenge concerns the application of the general grounds of refusal in the context of an entry clearance application and not an application for further leave to remain, there is no principled distinction between the two scenarios. Both paragraph 322(1A) and paragraph 320(7A) concern whether an applicant was dishonest in his or her application, and both are established by the same statute that confers power on an immigration officer or the Secretary of State to grant or refuse leave to enter, and, in the exercise of that power, to determine relevant questions of fact. Consequently, it is not for the tribunal to conduct a full merits assessment of every factual finding made by the respondent in the exercise of discretionary powers when applying the Immigration Rules.70. Mr Turner contended that the Tribunal’s approach, in a judicial review context, to issues of dishonesty that arise within the context of the Immigration Rules must now be considered in light of Balajigari. Balajigari concerned the refusal of applications for ILR made by Tier 1 (General) Migrants because the Secretary of State believed their presence in the United Kingdom was undesirable based on their alleged dishonest conduct by either inflating their income for the purposes of immigration control or deflating their stated income in order to reduce their tax liability. The Secretary of State relied on paragraph 322(5) of the Immigration Rules, which required that leave to remain should normally be refused if the conduct or character of a person made it undesirable to permit them to remain in the UK. 71. The challenges in Balajigari arose in the context of judicial review proceedings. The challenges were categorised into three groups. The first group was concerned with, inter alia, the exercise of discretion and the requirements of procedural fairness and fell under the heading ‘domestic public law challenges’ ([20] to [76]). In the second group the applicants contended that the decisions they were challenging interfered with their rights under Article 8 ECHR ([77] to [94]). The third group concerned the suitability of judicial review as a means by which paragraph 322 could be challenged where Article 8 ECHR was engaged ([95] to [106]). It is the second and third group of challenges, in respect of which there is some overlap, that Mr Turner drew upon in support of his submission that the existence of dishonesty within paragraph 320(7A) is a matter of precedent fact.72. Having analysed the arguments advanced by the parties the Court (Underhill, Hickinbottom, Singh LJJ) accepted that exposure of the applicants to liability to removal could engage their Article 8 ECHR rights given that they would usually have been in the UK for several years ([80], [84] to [91]). Having found that the Secretary of State’s decisions engaged Article 8 ECHR, the Court then considered the consequences of such engagement. It is this assessment upon which Mr Turner relies. He cites [92], [95], and [104] in support. 92. The principal substantive consequence of our finding that the refusal of T1GM ILR on paragraph 322 grounds will (typically) engage article 8 is that in any legal challenge the tribunal will be obliged to reach its own conclusion on whether the interference is justified, rather than conducting a rationality review: as to this, see para. 104 below. In an earnings discrepancy case that means, principally, that it will have to decide for itself whether the discrepancy was the result of dishonest conduct by the applicant in the supplying of figures to either HMRC or the Home Office. If it was, in the generality of cases such a finding will be sufficient, for the purposes of the final Razgar question, to justify the applicant being refused leave to remain and in consequence, which is the relevant interference, becoming liable to removal. The situation is analogous to that in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009, where the claimants' article 8 rights were in practice dependent on whether they had cheated in their TOEIC tests (see paras. 76 and 88 of the judgment of Underhill LJ) and this Court held that they were entitled to have that question determined by the tribunal as a matter of fact. There may be exceptional cases in which it can be argued that removal would be disproportionate despite the applicant's past dishonesty, and that issue too would in principle have to be judged by the tribunal for itself, while giving due weight to Secretary of State's assessment of the public interest. But paragraph 322 (5) itself likewise allows for the possibility of such exceptional cases (see para. 39 above), and there need be no difference in the nature of the exercise whether it is expressed as the exercise of a public law discretion or as a proportionality assessment under article 8.…95. Having concluded that article 8 is (generally) engaged by the refusal of ILR in these cases, where does that leave the procedural position with regard to a challenge to that refusal? In principle it seems to us, as it did to the Court considering an analogous issue in Ahsan (see para. 115 of the judgment of Underhill LJ), that the appropriate route of challenge is by way of appeal to the FTT rather than by way of a claim for judicial review in the UT. Although the UT can, if it has to, determine disputed issues of primary fact, that is not its usual role, and doing so is not a good use of its limited resources. But the procedural route to an appeal is not straightforward.73. Having considered the circumstances in which a right of appeal to the First-tier Tribunal might arise, the Court then considered how, in the context of judicial review proceedings, the applicants could rely on their Article 8 ECHR rights. 104. If such an article 8 challenge does proceed by way of judicial review in the UT, and the claimant's article 8 rights are found to have been engaged, the Tribunal will, as already noted, have to consider for itself whether the alleged dishonesty on the part of the claimant has been proved and whether removal is proportionate, which in most cases is likely to be determined by the question of dishonesty. It will not be confined, as would usually be the case and as in these proceedings thus far, to reviewing the facts only on the ground of irrationality. This is because, where a claim for judicial review includes a pleaded ground that the Secretary of State's decision either does or would violate article 8, that amounts to an allegation that there has been or will be unlawful conduct contrary to section 6 of the 1998 Act. That allegation has to be adjudicated by the tribunal on its merits: it is an argument based on illegality and not simply irrationality. For a recent summary of the law in this regard see R (Caroopen) v Secretary of State for the Home Department [2016] EWCA Civ 1307, [2017] 1 WLR 2339, per Underhill LJ at paras. 68-83 (pp. 2366-2372).74. When considering one of the individual challenges ([153] to [161]) the Court noted the view of an Upper Tribunal Judge that the question to be posed was not whether the particular applicant had been dishonest but whether the Secretary of State was rationally entitled to conclude that there had been dishonesty. The Upper Tribunal Judge had referred to Giri, and the Court of Appeal confirmed that the Wednesbury approach was the “correct approach where the tribunal is not concerned with an issue of precedent fact (or a human rights claim).” The judgment contains a footnote reading:“As to the inapplicability of Giri where an article 8 claim has been raised, see Ahsan, para. 118”75. Although the Upper Tribunal Judge’s decision was vitiated by procedural irregularity, the Court of Appeal did say ([161]) that, in the absence of any reliance on ECHR Convention rights, the Upper Tribunal was right to proceed on the basis of a rationality review. 76. At [118] of Ahsan, having first considered the circumstances in which a human rights claim could be an appropriate remedy in respect of an allegation of deception in a decision under s.10 of the Nationality, Immigration and Asylum Act 2002 (as it was prior to the Immigration Act 2014), Underhill LJ stated:“I should say, for the avoidance of doubt, that the reasoning in the previous paragraph does not mean that in every case where a finding of deception is made the subject of that finding is entitled to a judicial determination of the truth of the allegation. Whether it does so will depend on the legal context in which the question arises, including whether it is material to a human rights claim. That there are cases where only a rationality review is available is illustrated by Giri (see para. 43 above). Ms Giovannetti was asked by the Court whether an appellant was entitled to pursue a challenge to a deception finding in its own right, irrespective of its impact on the question of leave to remain or potential removal. She said that in principle they would be, but she submitted, relying on Giri, that such a challenge could only be on Wednesbury grounds.”77. In our judgement it is readily apparent from the passages cited above that in a judicial review challenge the jurisdiction of the Tribunal to determine an issue of dishonesty for itself arising from a decision taken under the general grounds of refusal in the Immigration Rules is dependent on the engagement of an ECHR right. This is because an allegation that such a decision violates Article 8 ECHR, and is therefore unlawful as being contrary to section 6 of the Human Rights Act 1998, must be determined by the court or Tribunal on its merits, and the approach to the ECHR question is not limited to Wednesbury (