England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Jay
[2014] EWHC 1832 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2015

Lord Justice Richards :

1. This is an appeal against an order of Jay J, made on 9 April 2014, by which he dismissed the application of the appellant, Bijendra Giri, for judicial review of the Secretary of State's decision dated 13 July 2011 refusing the appellant's application made on 21 April 2011 for leave to remain in the United Kingdom as a Tier 1 (Post-Study Work) Migrant.
2. The respondent refused the application pursuant to paragraph 322(1A) of the Immigration Rules ("the Rules"), which provides:

"Grounds on which leave to remain and variation of leave to remain in the United Kingdom are to be refused

…

(1A) 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."

3. The refusal in this case was on the ground that the April 2011 application form failed to disclose a material fact. On that form the appellant answered "No" to the question whether he had ever used deception when seeking leave to enter or remain. In February 2006, however, he had used deception in an application for entry clearance, by supplying false documents. He did not succeed in the February 2006 application but he applied again in August 2006 and, despite admitting in interview that he had supplied forged documents on the previous occasion, he was granted entry clearance. He entered the United Kingdom on 6 September 2006 and was subsequently granted successive one-year extensions of his leave, the last of which was due to expire on 22 October 2011. The reasons why entry clearance was granted on the August 2006 application and why leave was subsequently extended are not clear. Whatever happened earlier, the fact is that when it came to the April 2011 application he answered "No" to the question about the previous use of deception and that this was relied on as a failure to disclose material facts.
4. As the appellant's existing leave did not expire until 22 October 2011 and the Secretary of State did not make a decision to remove him (or any other immigration decision engaging a right of appeal), he did not have a right of appeal to the First-tier Tribunal against the refusal of his April 2011 application. That is why the challenge to the decision was made by way of judicial review.
5. Following the filing of the judicial review claim form on 4 August 2011, the Secretary of State reconsidered the application and sent a fresh decision letter, dated 10 October 2011, confirming the previous decision. There is no material difference between the decision letters and I propose to concentrate on the original decision of 13 July 2011.
6. In his judgment on the hearing of the substantive claim for judicial review, Jay J's reasoning was in summary as follows:

i) On the basis of the documentary evidence and the witness statement of the official who took the decision, the judge said that the decision was not one that he himself would have reached, or at least he would not have reached it for the reasons given by the deponent, but he could not conclude that the decision was Wednesbury unreasonable (paragraph 17).

ii) He pointed to the further evidence placed before the court in the form of the appellant's own witness statement, in which the appellant sought to persuade the court that he had neither submitted forged documents in 2006 nor admitted subsequently in interview that he had done so. The judge found that evidence utterly unconvincing (paragraph 19). This fed in to his conclusion summarised at (iv) below.

iii) The judge was inclined to the view that this was a "precedent fact" case in which it was for the court to decide as a matter of fact whether or not deception was used in the April 2011 application, rather than to review on Wednesbury grounds the decision of the Secretary of State on that matter (paragraphs 23-28).

iv) He found it unnecessary, however, to reach a decision on that point, because he was satisfied that even if the case was approached as one of precedent fact, i.e. on the most favourable view of the law from the appellant's perspective, the claim must fail (paragraphs 29-32). Applying "an ordinary balance of probabilities criterion", he was satisfied that the answer given to the relevant question in the application form was dishonestly false. He said: "I have absolutely no doubt that it was false in objective terms since the evidence demonstrates beyond peradventure, for the reasons I have already given, that deception was used when seeking leave to enter on a previous occasion, namely in February 2006". Picking up the point summarised in (ii) above, he stated further that it was not possible to reconcile the appellant's witness statement with a process of reasoning which exonerated the appellant.

7. The appeal against that judgment gives rise to two main issues. The first, raised by way of a respondent's notice served by the Secretary of State, is 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. The second issue, for which Bean LJ gave permission to appeal, concerns the standard of proof: if the question is one of precedent fact, is it to be decided on the civil standard of balance of probabilities or, because what is alleged is dishonesty, does some form of "heightened" standard apply?
8. The argument before us also touched on the question whether, to justify reliance on failure to disclose a material fact within paragraph 322(1A) it is necessary to make a finding of dishonesty. It was held by the Upper Tribunal in Ahmed (general grounds of refusal – material non-disclosure) Pakistan [2011] UKUT 00351 (IAC) that there is a requirement to find dishonesty on the part of the applicant or by someone acting on his behalf, but it appeared that the Secretary of State did not necessarily accept the correctness of that decision. It is unnecessary, however, for us to go into the question on the present appeal because the decision letter itself, after stating that the application was refused under paragraph 322(1A) for failure to disclose material facts, went on to state in addition that the appellant had used deception in the application; and in his witness statement in the judicial review proceedings, the official who took the decision said that he refused the application because the appellant was dishonest in not disclosing a material fact. Although there was a degree of muddle about the way the decision was expressed, the judge approached the matter on the basis that dishonesty was in issue.

The legislative context

9. We are concerned in this case with the exercise of a discretionary power conferred on the Secretary of State by section 3 of the Immigration Act 1971 ("the 1971 Act"). Section 3(1) provides:

"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 …."

Leave granted under section 3(1) for a limited period may be extended or varied in other ways pursuant to section 3(3). I shall refer to the grant or refusal of leave as encompassing the grant or refusal of an application to extend leave previously granted.

10. Section 3(2) 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 Rules are the product of that process. It is unnecessary to examine the authorities dealing with the status of the Rules or what must be included within them.
11. Parts 2-8 of the Rules contain detailed provisions relating to the grant or refusal of entry clearance and leave to enter or remain. Part 9 then sets out "General grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom". Paragraph 322(1A), which I have already quoted, falls within that Part and contains mandatory grounds of refusal.
12. Paragraph 320(7B) sets out consequences of a finding that the applicant has previously breached the United Kingdom's immigration laws by, inter alia, "(c) being an illegal entrant; (d) using deception in an application for entry clearance, leave to enter or remain (whether successful or not)", subject to certain exceptions. Where it applies, its effect is that future applications for entry clearance or leave to enter are to be refused for a period of between 12 months and 10 years, depending on whether the applicant left the United Kingdom voluntarily (and, if so, whether at his own expense or at public expense) or was removed or deported, unless refusal would breach the applicant's human rights.
13. I should also mention section 10 of the Immigration and Asylum 1999 Act ("the 1999 Act") which provided at the material time, prior to its amendment by the Immigration Act 2014:

"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if –

…

(b) he uses deception in seeking (whether successfully or not) leave to remain;

…

(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him."

The power of removal under that section was not exercised in this case, despite the fact that the July 2011 decision included a finding that the appellant had used deception in his April 2011 application. I mention the section, however, because it is relevant to the argument on the first main issue, to which I now turn.

First issue: precedent/jurisdictional fact or review on Wednesbury principles?

14. Although this issue arises by way of the Secretary of State's respondent's notice, it is convenient to approach it by reference to the submissions made by Mr Malik on behalf of the appellant. In supporting the position to which the judge below was inclined, he submitted that the question whether deception has been used is one of precedent fact for decision by the court.
15. He relied first on the decision of the House of Lords in R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74. That case concerned the lawfulness of an order made by an immigration officer to detain the appellant as an illegal entrant pending the giving and implementation of directions for his removal. The relevant power of detention was conferred by paragraph 16 of schedule 2 to the 1971 Act and applied to "a person in respect of whom directions may be given under any of paragraphs 8 to 14" of the schedule. By paragraph 9 of the schedule, removal directions could be given in respect of an "illegal entrant", an expression defined by section 33(1) of the 1971 Act and held to include any person who had obtained leave to enter the United Kingdom by practising fraud or deception. The action taken against the appellant Khawaja was based on the immigration officer's finding that he had obtained leave by fraud. The House of Lords held that on a judicial review of the order for detention the onus lay on the immigration officer to prove the fact that the leave was obtained by fraud. The matter was summarised in this way in the speech of Lord Fraser (at page 97E):

"On this question, I agree with my noble and learned friends, Lord Bridge and Lord Scarman, that an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant. That is a 'precedent fact' which has to be established. It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief."

16. In reaching the conclusion with which Lord Fraser expressed agreement, Lord Bridge drew a clear-cut and crucial distinction between the decision whether to grant leave to enter and the power to detain and remove a person as an illegal entrant. He said (at pages 122B-F):

"Whenever a non-patrial comes from abroad he needs leave to enter the United Kingdom and the decision whether or not such leave should be granted is fairly and squarely committed to the immigration officer by the statute. This necessarily entrusts all relevant decisions of fact, as well as the application to the facts of the relevant rules and any necessary exercise of discretion, to the immigration officer. If leave to enter is refused, that decision can plainly only be challenged on the now familiar grounds on which the court has jurisdiction to review a public law decision committed by statute to an administrative authority. Following a refusal of leave to enter there can be no successful challenge to a consequential order to detention and directions for removal unless the refusal of leave to enter can itself be successfully impugned. But the detention and removal of a non-patrial resident in this country, who may or may not be a British subject, who may have been here for many years and who, on the face of it, enjoys the benefit of an express grant of leave to be here, on the ground that he is an illegal entrant, seems to me to be dependent on fundamentally different considerations. A person seeking leave to enter requires a decision in his favour which the immigration officer alone is empowered to give. The established resident who entered with express permission enjoys an existing status of which, so far as the express language of the statute goes, the immigration officer has no power to deprive him. My Lords, we should, I submit, regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on. The fact that, in this case we are considering, detention is preliminary and incidental to expulsion from the country in my view strengthens rather than weakens the case for a robust exercise of the judicial function in safeguarding the citizen's rights."

17. Lord Templeman, like Lord Fraser, expressed agreement with Lord Bridge. Lord Scarman's reasoning was to similar effect, though laying particular stress on "the important – I would say fundamental – consideration that we are here concerned with the scope of judicial review of a power which inevitably infringes the liberty of those subjected to it" (page 109D).
18. The substance of Lord Bridge's reasoning in Khawaja was repeated and applied in Bugdaycay v Secretary of State for the Home Department [1987] AC 514, in rejecting an argument that on a judicial review of the Secretary of State's decision to issue removal directions following refusal of an asylum claim it was for the court to decide for itself whether the claimant was a refugee. In a speech with which all their Lordships agreed, Lord Bridge said this (at pages 522F-523B):

"The reason why this argument cannot be sustained is that all questions of fact on which the discretionary decision whether to grant or withhold leave to enter or remain depends must necessarily be determined by the immigration officer or the Secretary of State in the exercise of the discretion which is exclusively conferred upon them by section 4(1) of the Act. The question whether an applicant for leave to enter or remain is or is not a refugee is only one, even if a particularly important one required by paragraph 73 of HC 169 [i.e. the relevant paragraph of the Rules] to be referred to the Home Office, of a multiplicity of questions which immigration officers and officials of the Home Office acting for the Secretary of State must daily determine in dealing with applications for leave to enter or remain in accordance with the rules, as, for example, whether an applicant is a bona fide visitor, student, businessman, dependant etc. Determination of such questions is only open to challenge in the courts on well known Wednesbury principles …. There is no ground for treating the question raised by a claim to refugee status as an exception to this rule. For the reasons explained at length in the speeches in Khawaja's case the court's fundamentally different approach to an order for removal on the ground of illegal entry is dictated by the terms of the statute itself, since the power to direct removal under paragraph 9 of Schedule 2 is only available in the case of a person who is in fact an 'illegal entrant'."

19. 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.
20. 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.
21. Although I consider that the answer to this issue lies as I have said in Khawaja and Bugdaycay, I should refer to various other authorities cited to us.
22. Mr Malik placed weight on the observations of Sir Thomas Bingham MR in R v Secretary of State for the Home Department, ex p. Onibiyo [1996] QB 768 as to the correct approach of the court towards a refusal by the Secretary of State to recognise a claim as a fresh claim for asylum. In proffering a "tentative answer" to a question that was not determinative of the appeal, he said this (at pages 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. Thus, for example, where power to detain and remove is dependent on a finding that the detainee is an illegal entrant, one who has entered clandestinely or by fraud and deceit, the court will itself rule whether the evidence is such as to justify that finding: Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74. By contrast, the decision whether an asylum-seeker is a refugee is a question to be determined by the Secretary of State and the immigration appellate authorities, whose determinations are susceptible to challenge only on Wednesbury principles: Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 513. I am of opinion, although with some misgivings, that the judgment whether a fresh 'claim for asylum' has been made should be assimilated with the latter, and not the former, class of judgment …."

I read that passage as an application of the principles in Khawaja and Bugdaycay in the specific context of fresh claim decisions, rather than as a departure from, or modification of, those principles.

23. At almost exactly the same time as the Court of Appeal's judgment in Onibiyo, the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 provided an effective affirmation and further application of the principles in Khawaja and Bugdaycay. The applicants in Tan Te Lam were detained in Hong Kong under a statutory power conferred on the Director of Immigration to detain "pending removal". The question was whether it was for the court or for the director to determine the relevant facts. Lord Browne-Wilkinson, giving the judgment of the Privy Council, referred first to Khawaja and then to Bugdaycay, summarising the latter in this way (at page 113C-D):

"The applicants claimed, in reliance on the Khawaja case …, that the question whether or not they were entitled to asylum … was a question of jurisdictional or precedent fact which was for the court, not the executive, to determine. Their Lordships rejected this submission, saying that the question whether or not the applicants were refugees was but one of a large number of factual issues which had been committed by Parliament to the executive to determine in the course of exercising their discretion whether or not to give leave to enter. The facts were not, as in the Khawaja case, a condition precedent to the existence of any discretionary power, but matters for determination in the course of exercising such power."

Lord Browne-Wilkinson continued:

"The issue therefore in the present case is whether the determination of the facts relevant to the question whether the applicants were being detained 'pending removal' goes to the jurisdiction of the director to detain or to the exercise of the discretion to detain. In their Lordships' view the facts are prima facie jurisdictional. If removal is not pending, within the meaning of section 13D, the director has no power at all …"

Expressing the matter in terms of jurisdiction, as in Tan Te Lam, it is clear that the question under paragraph 322(1A) whether deception has been used goes to the exercise of the Secretary of State's discretion whether to grant leave to remain, not to the jurisdiction to grant leave.

24. R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557 concerned a very different statutory context, namely the duty placed on a local authority by section 20(1) of the Children Act 1989 to provide accommodation for a "child in need". The Supreme Court held that in enacting the provision Parliament had intended that the question whether a child was "in need" was for the local authority to determine but that the question whether a person was or was not a "child" was subject to ultimate determination by the court. Lady Hale, in a judgment with which the other members of the court agreed, explained that the question whether a child is "in need" required a number of different value judgments and that it was reasonable to assume in this context that Parliament intended the relevant evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review; within the limits of fair process and Wednesbury reasonableness there were no clear-cut right or wrong answers. She continued:

"27. But the question whether a person is a 'child' is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers.

…

32. However, as already explained, the Act does draw a distinction between a 'child' and a 'child in need' and even does so in terms which suggest that they are two different kinds of question. The word 'child' is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it."

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. She said nothing to cast doubt on the correctness of the reasoning in Khawaja or Bugdaycay concerning the existence and exercise of powers under the immigration legislation. (It may be noted, moreover, that the decision in A's case was distinguished by the Supreme Court in R (AA (Afghanistan)) v Secretary of State for the Home Department [2013] UKSC 49, [2013] 1 WLR 2224, when considering the Secretary of State's duty under section 55 of the Borders, Citizenship and Immigration Act 2009 in relation to the welfare of "children". But I think it unnecessary to examine the detail of that decision.)
26. Another authority on which Mr Malik placed reliance was the decision of this court in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, [2011] 1 WLR 564. The main issue in that case was whether "false" in paragraph 322(1A) imported a requirement of dishonesty. On the present issue the decision adds nothing. It was an appeal from the Asylum and Immigration Tribunal and did not address the role of the court on an application for judicial review.
27. Finally, I should mention Mr Malik's reliance on the decision of Mostyn J in R (Thebo) v Entry Clearance Officer, Islamabad [2013] EWHC 146 (Admin). That was a judicial review challenge in which it was agreed by counsel for the Secretary of State that the court must decide the issue of dishonesty for itself "as the question of dishonesty goes to jurisdiction" (paragraph 1). Whatever may have led to that concession, I take the view, for the reasons already given, that it was wrongly made. In any event, the very fact that it was a concession means that the case is of no assistance to Mr Malik.
28. Jay J's inclination to accept the correctness of Mr Malik's submissions appears to have been heavily influenced by paragraph 320(7B) of the Rules, summarised at paragraph 12 above. The judge said this:

"28. … There is absolutely no reason to construe that paragraph in any different way from paragraph 322(1A). The mandatory requirement that entry clearance be refused is dependent on certain facts being established. One of these facts is that the applicant is … an illegal entrant. If Khawaja applies to paragraph 320(7B), as I believe it must do, it is difficult to see why the same sort of principles should not apply to the other sub-paragraphs in this rule, given that each depends on proof of a relevant characteristic rather than a value judgment or discretion."

29. In my judgment, however, that reasoning is based on a mistaken understanding of the reasoning in Khawaja. I have explained that the question whether someone was an "illegal entrant" was treated in Khawaja as one of precedent fact because in that case the existence of the power to remove and detain depended on it. It does not follow that wherever the expression "illegal entrant" appears in the Rules, it raises a question of precedent fact for determination by the court. On the contrary, the reasoning in Khawaja, underlined by Bugdaycay, shows that decisions on the grant or refusal of entry clearance or leave to enter or remain, including the determination of relevant questions of fact arising in the application of the Rules, are subject to review on Wednesbury principles.
30. Accordingly, I am satisfied that the judge's inclination to treat the question as one of precedent fact was wrong and that he ought to have applied Wednesbury principles to determine the lawfulness of the decision under challenge. By proceeding to ask himself whether, on the evidence before the court, the Secretary of State had proved that deception had been used, he was addressing the wrong question.
31. Fortunately, however, the judge had already provided his answer to the right question, finding at paragraph 17 of his judgment that the decision was not Wednesbury unreasonable; a finding reached despite the judge's personal reservations about the decision.
32. Mr Malik submitted that a finding that the decision was not Wednesbury unreasonable was an insufficient basis for dismissing the claim even if the question of deception was not one of precedent fact. He referred to observations of the Supreme Court in Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591, to the effect that "the common law no longer insists on a single, uniform standard of rationality review based on the virtually unattainable test stated in the Wednesbury case …" (per Lord Sumption at paragraph 109) and that the application of a test of reasonableness may produce the same result as a test of proportionality (see also paragraphs 59-61, 93-98, 104-108 and 114-120 of the judgments in Pham). He submitted that the decision in the present case should be scrutinised as rigorously as possible and that the court should also consider the proportionality of the Secretary of State's decision, in the light of all the circumstances. I accept that a finding that deception has been used should be scrutinised very carefully but I do not accept that the relevant question is anything other than whether it was reasonably open to the decision-maker, on the material before him, to find that deception had been used. The finding in question is one of fact. Issues of proportionality are not relevant to it. Such issues might in principle be raised in relation to the consequences, under the Rules, of a finding that deception has been used, but the Rules themselves are not challenged in these proceedings and the balance struck in them has been approved in any event by Parliament.
33. Having considered the factual background set out at paragraphs 2-16 of the judgment below, the detail of which I think it unnecessary to repeat in this judgment, I see no reason to differ from the judge's finding that the decision was not Wednesbury unreasonable.

Second main issue: standard of proof

34. On the basis of the conclusion I have reached on the first main issue, the second main issue does not arise for decision. I will, however, deal briefly with the point of principle in it, since the standard of proof is important for the determination of issues of this kind on an appeal to the tribunal.
35. Mr Malik submitted that Jay J's approach of applying "an ordinary balance of probabilities criterion" was inconsistent with two reported decisions of the Upper Tribunal: JC (Part 9 HC395 – burden of proof) China [2007] UKAIT 00027 and NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031.
36. In JC the tribunal said (at paragraph 13) that the approach adopted in an earlier tribunal decision, that in relation to a question of deception "the standard of proof will be at the higher end of the spectrum of balance of probability", still held good. That was incorrect, as should have been apparent from the citation, in the same paragraph, from the judgment in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468 (referred to by the tribunal under the title R (AN) v Secretary of State for the Home Department). I gave the judgment of the court in that case. Paragraph 62 stated:

"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."

37. That statement was subsequently approved, with an immaterial qualification, by the House of Lords in In re D [2008] UKHL 33, [2008] 1 WLR 1499 (see per Lord Carswell at paragraph 27). The judgment of the House of Lords in In re B (Children) [2008] UKHL 35, [2009] 1 AC 11, handed down on the same day as the judgment in In re D, was to the same effect. As Lord Hoffmann emphasised:

"13. … I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not ….

15. … There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities …."

38. The tribunal in NA took proper account of the case-law, including the judgment of the House of Lords in In re B (Children), corrected what was said in JC, rejected an argument that the criminal standard of proof should apply, and approached the matter on the basis of the single civil standard of proof on the balance of probabilities. But it also said:

"101. However, we do agree … that the consequences of refusal under Part 9 can be serious and that this is certainly true for persons such as the three appellants who, depending on findings of fact made by the Tribunal, may find themselves, if removed from the UK, faced with a 5-10 year re-entry ban under para 320(7B) …. Whilst we would note that Lord Hoffman in Re B (Children) emphasised that the seriousness of the consequences do not require a different standard of proof, we do accept that for the respondent to satisfy us he has discharged the burden of proof on him on the balance of probabilities he would, in the context of this type of case, need to furnish evidence of sufficient strength and quality and he (and the Tribunal) would need to subject it to a 'critical', 'anxious' and 'heightened' scrutiny."

My only concern about that passage is the risk that "heightened scrutiny" might be treated as a surrogate for the application of a "heightened standard of proof", a test which has been decisively disapproved. For that reason, the expression should in my view be avoided. Subject to that, it seems to me that the tribunal's approach is consistent with the authorities on standard of proof.

Conclusion

39. For the reasons given I would dismiss the appeal.

Lord Justice Beatson :

40. I agree.

Lady Justice King :

41. I also agree.