Case No. UKUT-00338-(IAC)

ed in the Treasury Solicitor’s Department’s Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings, dated July 201034.The duty is not only imposed upon a respondent to judicial review proceedings, however. It is equally well established that an applicant owes a duty to make ‘frank disclosure of all relevant facts’: Cocks v Thanet District Council [1983] 2 AC 286, at 294G. 35.In R (Khan) v SSHD [2016] EWCA Civ 416, the Court of Appeal considered the scope of that obligation. The Court had before it (amongst other matters) an application to set aside its own grant of permission to appeal on the basis that the applicant and/or his representatives were in serious breach of their duty of candour. The case was one which concerned an application for Indefinite Leave to Remain on grounds of Long Residence under paragraph 276B(i)(b) of the Immigration Rules, as then in force. The appellant maintained in his application that he had entered the United Kingdom fourteen years earlier, in 1998, and that he had remained ever since. That was the basis upon which he pursued his subsequent application for permission to apply for judicial review before the Upper Tribunal and his successful application for permission to appeal to the Court of Appeal. 36.The applicant had applied for a Work Permit in 2002, however, and he had stated in that application that he had been employed as a chef in a hotel in Pakistan in 2001. The appellant and/or his advisers had included the 2002 Work Permit application in the judicial review bundle before the Upper Tribunal but had submitted in the grounds for judicial review that the appellant had entered the UK in 1997 and had ‘continuously remained in the United Kingdom since then’. There was no comment on the contents of the application made in 2002 and the applicant had made no witness statement in order to explain the contradiction in his accounts. It was accepted before the Court of Appeal that the significance of what had been said in the 2002 application had been missed by those advising both parties until counsel had been instructed to appear for the Secretary of State in the Court of Appeal. 37.The submission made by the Secretary of State was that the appellant and/or his representatives were in breach of their duty of candour in failing to draw the attention of the court to the potentially adverse effect of the 2002 application: [32]. It was as a result of that failure that Sullivan LJ (who had granted permission to appeal) was said not to have been ‘given the full picture’. The appellant responded that the work permit application had been presented to the Secretary of State and the Upper Tribunal and the point had not been taken in the summary grounds of defence: [34].38.At [35]-[46], Beatson LJ conducted a thorough review of the authorities, including ex parte Huddleston and Quark Fishing. Amongst other matters, he noted that: (i)‘The duty to disclose all material facts known to a claimant in judicial proceedings including those which are or appear to be adverse to his case prior to applying for permission is well established.’: [35](ii)Notwithstanding the requirement in the CPR for a respondent to file an acknowledgement of service and summary grounds, ‘it remains the case that a claimant in judicial review proceedings must ensure that the judge dealing with such an application has the full picture in order to make the relevant decision’: [36](iii)If a material document is not disclosed, the fact that the claimant did not know it contained material facts is no excuse if the claimant would have known had he or she made appropriate inquiries before applying for permission: [37]39.At [46], having considered the obligations placed on applicants in other types of litigation, Beatson LJ concluded that an applicant’s duty of candour was not discharged by providing ‘a pile of undigested documents’ and that the duty extended to an obligation ‘to explain material in a disclosed document that is adverse to the claim’ (the emphasis is ours). The failure of the claimant to do so when he secured permission from Sullivan LJ sufficed to justify the setting aside of the grant of permission. 40.The Senior President of Tribunals agreed with that outcome, noting at [71] that an applicant’s ‘duty is not to mislead the court which can occur by the nondisclosure of a material document or fact or by failing to identify the significance of a document or fact.’41.Longmore LJ dissented on the outcome of the application to set aside the grant of permission to appeal.42.It is clear from the judgments of the majority, therefore, that an applicant’s duty of candour in judicial review proceedings extends not only to disclosing documents which are adverse to his claim; he is also obliged to draw the significance of those documents specifically to the attention of a judge considering his application. (See also [106](5) of