ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
UTJ Gleeson in Balajigari
UTJ Kamara in Kawos
UTJ Frances in Majumder
UTJ Coker in Albert
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE HICKINBOTTOM
LORD JUSTICE SINGH
| ASHISH BALAJIGARI
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
AVAIS KAWOS and others
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
SOMNATH MAJUMDER and another
|- and -
|THE SECRETARY OF STATE FOR THE HOME
|- and -
|THE SECRETARY OF STATE FOR THE HOME
Mr Alexis Slatter (instructed by Richmond Chambers LLP) for the Appellant in Kawos
Mr Shahadoth Karim (instructed by PGA Solicitors LLP) for the Appellant in Majumder
Mr Parminder Saini (instructed by Vision Solicitors) for the Appellant in Albert
Ms Julie Anderson (instructed by the Treasury Solicitor) for the Respondent in Balajigari
Ms Julie Anderson and Mr Zane Malik (instructed by the Treasury Solicitor) for the Respondent in Kawos, Majumder and Albert
Hearing dates: 23rd & 24th January 2019
Crown Copyright ©
Lord Justice Underhill:
OVERVIEW OF THE ISSUES
(A) THE DOMESTIC PUBLIC LAW CHALLENGES
(1) the correct interpretation of paragraph 322 (5) of the Immigration Rules;
(2) the approach which needs to be taken to the application of paragraph 322 (5) in an earnings discrepancy case;
(3) the requirements of procedural fairness;
(4) whether the Secretary of State is subject to any "Tameside duty".
(1)/(2): THE INTERPRETATION OF PARAGRAPH 322 (5) AND THE CORRECT APPROACH IN EARNINGS DISCREPANCY CASES
"the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C)), character or associations or the fact that he represents a threat to national security."
"the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave."
Other Provisions of Part 9
"the immigration officer deems the exclusion of the person from the United Kingdom to be conducive to the public good. For example, because the person's conduct (including convictions which do not fall within paragraph 320(2)), character, associations, or other reasons, make it undesirable to grant them leave to enter."
" The main types of cases you need to consider for refusal under paragraph 322 (5) or referral to other teams are those that involve criminality, a threat to national security, war crimes or travel bans."
"A person does not need to have been convicted of a criminal offence for this provision to apply. When deciding whether to refuse under this category, a key thing to consider is if there is reliable evidence to support a decision that the person's behaviour calls into question their character and/or conduct and/or their associations to the extent that it is undesirable to allow them to enter or remain in the UK. This may include cases where a migrant has entered, attempted to enter or facilitated a sham marriage to evade immigration control. "
The Correct Approach
The First Stage: "Undesirability"
"If it were otherwise, then an applicant whose false representation was in no way dishonest would not only suffer mandatory refusal but would also be barred from re-entry for ten years if he was removed or deported. That might not in itself be so very severe a rule, if only because the applicant always has the option of voluntary departure. If, however, he has to be assisted at the expense of the Secretary of State, then the ban is for five years. Most seriously of all, however, is the possibility that an applicant for entry clearance who had made an entirely innocent representation, innocent not only so far as his personal honesty is concerned but also in its origins, would be barred from re-entry under paragraph 320(7B)(ii) for ten years, even if he left the UK voluntarily."
He continued, at para. 78:
"In any event, it would be most unfortunate if, merely because of an entirely innocent misrepresentation, an applicant had to leave the UK under a decision of the Secretary of State which stated that 'you have used deception in this application'. That would presumably always be an impediment to such an applicant's return, even if not a mandatory bar."
(1) We were referred to the recent decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd  UKSC,  AC 391, considering the correct approach to what constitutes dishonesty. The principles summarised by Lord Hughes at para. 74 of his judgment in that case will apply in this context, but we cannot think that in practice either the Secretary of State or a tribunal will need specifically to refer to them.
(2) Mr Biggs submitted that even dishonest conduct may not be sufficiently reprehensible to justify use of paragraph 322 (5) in all cases and that it would depend on the circumstances, the guiding principle being that the threshold for sufficiently reprehensible conduct is very high. We do not find it helpful to generalise about the height of the threshold, though it is obvious that the rule is only concerned with conduct of a serious character. We would accept that as a matter of principle dishonest conduct will not always and in every case reach a sufficient level of seriousness, but in the context of an earnings discrepancy case it is very hard to see how the deliberate and dishonest submission of false earnings figures, whether to HMRC or to the Home Office, would not do so.
(3) Mr Biggs submitted that dishonest conduct would only be sufficiently reprehensible if it were criminal. We do not accept that that is so as a matter of principle, although it is not easy to think of examples of dishonest conduct that reached the necessary threshold which would not also be criminal. The point is, however, academic in the context of earnings discrepancy cases since the dishonest submission of false earnings figures to either HMRC or the Home Office would be an offence.
The Second Stage: Discretion
"The starting point seems to me to be that, where the Secretary of State discovers a significant difference between the income claimed in a previous application for leave to remain and the income declared to HMRC (as here) she is entitled to draw an inference that the Applicant has been deceitful or dishonest and therefore he should be refused ILR within paragraph 322 (5) of the Immigration Rules."
That starting-point is reflected in points (i) and (ii) of the guidance given in para. 37, which read:
"(i) Where there has been a significant difference between the income claimed in a previous application for leave to remain and the income declared to HMRC, the Secretary of State is entitled to draw an inference that the Applicant has been deceitful or dishonest and therefore he should be refused ILR within paragraph 322 (5) of the Immigration Rules. I would expect the Secretary of State to draw that inference where there is no plausible explanation for the discrepancy."
"(ii) However, where an Applicant has presented evidence to show that, despite the prima facie inference, he was not in fact dishonest but only careless, then the Secretary of State is presented with a fact-finding task: she must decide whether the explanation and evidence is sufficient, in her view, to displace the prima facie inference of deceit/dishonesty."
"In approaching that fact-finding task, the Secretary of State should remind herself that, although the standard of proof is the 'balance of probability', a finding that a person has been deceitful and dishonest in relation to his tax affairs with the consequence that he is denied settlement in this country is a very serious finding with serious consequences."
We would respectfully agree with that passage. In particular, despite the valiant attempts made by Ms Anderson on behalf of the Secretary of State before us to argue the contrary, we consider (as Martin Spencer J did) that the concept of standard of proof is not inappropriate in the present context. This is because what is being asserted by the Secretary of State is that an applicant for ILR has been dishonest. That is a serious allegation, carrying with it serious consequences. Accordingly, we agree with Martin Spencer J that the Secretary of State must be satisfied that dishonesty has occurred, the standard of proof being the balance of probabilities but bearing in mind the serious nature of the allegation and the serious consequences which follow from such a finding of dishonesty.
(3): THE REQUIREMENTS OF PROCEDURAL FAIRNESS
"68. That the common law will 'supply the omission of the legislature' has not been in doubt since Cooper v Wandsworth Board of Works (1863) 4 CB (NS) 180 (Byles J); see also the more recent decision of the House of Lords in Lloyd v McMahon  AC 625. Accordingly, the duty to act fairly or the requirements of procedural fairness (what in the past were called the rules of natural justice) will readily be implied into a statutory framework even when the legislation is silent and does not expressly require any particular procedure to be followed.
69. The requirements of procedural fairness were summarised in the following well known passage in the opinion of Lord Mustill in R v Secretary of State for the Home Department, Ex p Doody  1 AC 531, 560 in which he summarised the effect of earlier authorities:
'From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.'
70. In R v Hackney London Borough Council, ex p Decordova (1995) 27 HLR 108, 113, Laws J said, in the context of a housing decision but by reference to immigration law as well:
'In my judgment where an authority lock, stock and barrel is minded to disbelieve an account given by an applicant for housing where the circumstances described in the account are critical to the issue whether the authority ought to offer accommodation in a particular area, they are bound to put to the applicant in interview, or by some appropriate means, the matters that concern them. This must now surely be elementary law in relation to the function of decision-makers in relation to subject matter of this kind. It applies in the law of immigration, and generally where public authorities have to make decisions which affect the rights of individual persons. If the authority is minded to make an adverse decision because it does not believe the account given by the applicant, it has to give the applicant an opportunity to deal with it.'
71. The origins of the duty to act fairly in the context of an immigration decision can be traced back to the decision of the Divisional Court in In re HK (An Infant)  2 QB 617, 630 (Lord Parker CJ)."
"73. Ms Kilroy is further entitled to place reliance on the decision of the Court of Appeal in R v Secretary of State for the Home Department, Ex parte Fayed  1 WLR 763, in particular at p 777, where Lord Woolf MR said:
'I appreciate there is also anxiety as to the administrative burden involved in giving notice of areas of concern. Administrative convenience cannot justify unfairness but I would emphasise that my remarks are limited to cases where an applicant would be in real difficulty in doing himself justice unless the area of concern is identified by notice. In many cases which are less complex than that of the Fayeds the issues may be obvious. If this is the position notice may well be superfluous because what the applicant needs to establish will be clear. If this is the position notice may well not be required. However, in the case of the Fayeds this is not the position because the extensive range of circumstances which could cause the Secretary of State concern mean that it is impractical for them to identify the target at which their representations should be aimed.'
74. At p 786, Phillips LJ said, after referring to the decision of the Court of Appeal in R v Gaming Board for Great Britain, Ex p Benaim  2 QB 417 that:
'That decision demonstrates two matters. (1) The duty to disclose the case that is adverse to an applicant for the exercise of a discretion does not depend upon the pre-existence of any right in the applicant. (2) The nature and degree of disclosure required depends upon the particular circumstances.'"
"In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute."
"any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals - before the mind of the executive becomes unduly fixed."
(4): THE SUGGESTED TAMESIDE DUTY
(B) THE ENGAGEMENT OF ARTICLE 8
"Persons who require, but no longer have, leave to enter or remain may be liable to removal from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014).
You may be detained or placed on reporting conditions.
You do not have to leave the United Kingdom during the time period in which you may apply for administrative review. If you apply for administrative review you do not need to leave the United Kingdom until we decide your application. If you do not apply for administrative review, or extend your leave to remain on another basis, you will soon be giving further notice that you must leave the United Kingdom."
Mr Biggs acknowledged that, as the final sentence of that passage makes clear, if the applicant did not leave voluntarily further formal steps would be taken to enforce removal: specifically, current Home Office practice is to notify a person liable to removal of a "removal window" during which enforcement action will be taken. But he submitted that those steps were simply administrative consequences which it is said would occur "soon" of the substantive decision to refuse ILR, which is what terminates the applicant's leave to remain.
"A person ('P') may appeal to the [First-tier] Tribunal where the Secretary of State has decided to refuse a human rights claim made by P ".
" a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to the [ECHR])".
D. THE INDIVIDUAL CASES
"The Secretary of State has further noted that you have amended your tax returns ahead of making an application for settlement in the United Kingdom and you have not submitted any justification for such amendments from a qualified accountant or a qualified tax consultant explaining the errors, if any, made in previous tax returns and what transpired to identify those errors in April 2016. The Secretary of State is therefore not satisfied that you have demonstrated the desired level of good conduct and character due to a substantial variation in your earnings claims to Home Office in immigration applications and your earnings declared to HMRC for personal income tax purpose and later amending the tax returns without having a valid justification to do so.
The fact that you have retrospectively declared these claimed earnings to HMRC is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with HMRC and/ UK Visas & Immigrations.
Having considered the fact that your declared earnings to the Home Office compared to what you declared to HMRC for a similar period differ significantly, the Secretary of State is satisfied that your earnings claims made in your Tier 1 application are not consistent with your declarations made to HMRC in the relevant tax period/s. The discrepancy between your declarations to both the government bodies casts doubts over your declared earnings in your previous applications and your conduct and character in doing so.
It is acknowledged that Paragraph 322(5) of the Immigration Rules is not a mandatory refusal, however the evidence submitted does not satisfactorily demonstrate that the failure to declare to HMRC at the time any of the self-employed earnings declared on your previous application for leave to remain in the United Kingdom as a Tier 1 General Migrant was a genuine error. It is noted that there would have been a clear benefit to yourself either by falsely representing your earnings to HMRC with respect to reducing your tax liability or by falsely representing your earnings to UK Visas & Immigration to enable you to meet the points required to obtain leave to remain in the United Kingdom as a Tier 1 General Migrant.
The Secretary of State considers that it would be undesirable for you to remain in the United Kingdom based on the fact that you have been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration by failing to declare your claimed self-employed earnings to HMRC at the time and/or by falsely representing your self-employed income to obtain leave to remain in the United Kingdom. Your application for indefinite leave to remain in the United Kingdom as a Tier 1 General Migrant is therefore refused under Paragraph 245CD (b) with reference 322 (5) of the Immigration Rules."
The Judgment of the UT
" The Respondent was fully entitled to regard that as reliable evidence of reprehensible behaviour."
" unarguably open to the Respondent to conclude that he could not have done so inadvertently. The difference in figures is not a typographical error, it is not a mathematical error: it is quite clearly either an over- or under-declaration of a substantial part of his self-employment income."
"I am not persuaded, having looked at the covering letter but not the documents from 27th January 2017, that an examination of the enclosed documents by the respondent was likely to have taken matters any further at all. To the extent that there was any procedural and fairness by her, I am satisfied it would have made no difference to the outcome of the application."
"[The Secretary of State] is asked to confirm whether in all or any of the cases he intends to argue that, even if he acted unfairly in not giving the appellant in question any, or any sufficient, opportunity to respond to the allegation of dishonesty (or acted unlawfully in any of the other ways alleged), relief should be refused on the basis that the only possible conclusion is that he had in fact acted dishonestly. If such a case is being advanced, the Secretary of State should state succinctly the legal basis for it and the evidence particularly relied on."
"Further, and in any event, any procedural issues were immaterial to the outcome given that the explanation provided was considered but found to be unsatisfactory for legally sustainable reasons. Since relief in judicial review (and in this Court) is discretionary, interference will not be justified where any alleged breach of natural justice was not material to the outcome (see Spahiu v Secretary of State for the Home Department  EWCA Civ 2604, at  to ). Where yet a further reconsideration of AB's explanation for the accepted discrepant personal declarations is highly unlikely to yield the contrary outcome, the procedural unfairness allegations do not provide a sound basis to allow AB's appeal."
That passage appears although the first sentence is not quite in line with what follows to constitute a submission that any procedural breaches were not "material" because it was "highly unlikely" that the decision would be any different if properly taken. It is necessary to say a little more about the legal basis for that submission.
"While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity. There are a number of reasons for this:
1. Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance.
2. As memorably pointed out by Megarry J in John v Rees  Ch 345 at p.402, experience shows that that which is confidently expected is by no means always that which happens.
3. It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant's position became weaker as the decision-maker's mind became more closed.
4. In considering whether the complainant's representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision.
5. This is a field in which appearances are generally thought to matter.
6. Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied."
That passage was approved by the Privy Council in Permanent Secretary, Ministry of Foreign Affairs v Ramjohn  UKPC 20 (see para. 39 of the judgment of the Board delivered by Lord Brown). A more recent authority to the same effect is R (Shoesmith) v Ofsted  EWCA Civ 642,  ICR 1195: see per Maurice Kay LJ at paras. 69-74 (pp. 1215-7), who emphasises at para. 70 that the test is one of inevitability and that "probability is not enough".
"if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred".
Sub-section (3B) provides that the Court may disregard sub-section (2A) (a) "if it considers that it is appropriate to do so for reasons of exceptional public interest", though by sub-section (2C) it must formally certify that that is the case. Section 15 (5A) of the Tribunals, Courts and Enforcement Act 2007 provides that section 31 (2A) should apply also to the UT in the exercise of its judicial review jurisdiction and section 16 (3F), (3G) and (6B) provide for an exception to substantially the same effect as sub-sections (2B) and (2C). There are provisions applying the same test as sub-section (2A) (a) to applications for permission to apply for judicial review, as well as to the substantive claims: see section 31 (3C) and (3D) of the 1981 Act and section 16 (3C) (3E) of the 2007 Act.
Immigration History and Decision
"I have been informed that the purpose of the interview was to obtain further details on the information which I provided in my application for further leave to remain in the UK."
"Q5: Our records show that you declared to HMRC a figure of £12,000 from dividends, for the tax year 2012/2013. Yet, you have produced a SA302 for the tax year 2013 showing a figure of £29,555.00. Can you explain the discrepancy.
A: Initially that was the amount declared to HMRC (£12,000). Later we discovered that it was wrong (by we, accountant). The accountant in the same week in October we applied for an amendment. I can provide you with the proof of what we have declared to HMRC. Only when the amendments were made by HMRC in Dec.15/Jan.16 we were provided with the SA302's.
Q6: When did you realise this mistake?
A: October 2015.
Q7: How did it come about?
A: Before preparing this application I was sorting through the documents from my 2013 extension. I gave this document to my accountant and it's at that point the error came to light.
Q8: Is this same accountant used today?
Q10: So, as far as you're concerned all relevant earnings have now been declared to HMRC?
A: Yes. Everything. Honestly.
Q11: Can you provide evidence to show the error was picked up in October 2015 ?
A: Yes. I should have the documents in my car. Give me 10 mins."
Despite that last question and answer it was Mr Kawos's evidence in the proceedings that he was not asked to obtain the documents to which he referred and was instead given a letter telling him that further enquiries needed to be made.
"However, 'HMRC' records show that you earned/declared and paid tax on dividends of £8,000 for the financial year of 2011/12 and dividends of £12,000 for the financial year 2012/13.
You were interviewed at Solihull Premium Service Centre on 3 February 2016. At the interview, you were asked to explain, at question 5, the reasons for discrepancies in 'HRMC' records in respect of your claimed earnings for 2012/13 (a copy of which you were provided with on the same day). You stated that your accountant discovered in October 2015 that the incorrect amount had been submitted and you subsequently made amendments. You provided HMRC returns at this interview to confirm that dividends of £8,888.00 were received for 2011/12 and dividends for £29,555.00 for 2012/13.
It is apparent that you have mislead 'UKVI' by declaring the amount of £37,402 as a Self-Employed person in support of your [T1GM] leave to remain application on 17 January 2013, which you claimed to have earned during the period 25 December 2011 to 24 December 2012. However, according to 'HMRC' records you only declared £8,000 for 2011/12 and £12,000 for 2012/13 as Dividends.
The fact that you have retrospectively declared part of these claimed earnings to HMRC is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration.
As the 'HMRC' records show considerable discrepancies in the amounts of Self-Employed earnings you have declared/paid tax on over the financial years, 2011/12 and 2012/13, it is apparent that you deliberately and wilfully mislead both the 'UKVI' and the 'HMRC' in order to inflate your earnings as part of the requirements to score points for previous earnings whilst pursuing your [T1GM] leave to remain applications."
The Reasons conclude with three standard-form paragraphs in identical terms to those which conclude the Reasons in Mr Balajigari's case (see para. 111 above.)
"16. Firstly, it was argued that the respondents' refusal under paragraph 245 CD (b) with reference to paragraph 322 (2) was Wednesbury unreasonable; illegal (in that the respondent misdirected herself in law); procedurally unfair and failed to take into account relevant considerations. The applicant's amended tax return was accepted as a genuine error by HMRC; did not result in any additional tax liability and was consistent with his previous earnings. It was contended that the respondent was required to show that the applicant deliberately and dishonestly made false representations as to his previous earnings, AA (Nigeria) v SSHD 2010 EWCA Civ 77 applied.
17. Secondly, it was further argued that the Secretary of State's decision on the paragraph 322 (5) contained the same flaws. The point was made that the serious nature of the allegation and consequences for the applicant meant that the requirements of fairness were exacting in his case. It was contended that no allegation of dishonesty was put to the applicant during his interview with the respondent; the respondent failed to make adequate enquiries with HMRC and the response to the pre-action protocol incorrectly stated that a late payment was made.
18. Thirdly, the respondent was alleged to have misdirected herself in law in relation to Appendix AR 2.4 in rejecting the evidence from the applicant's accountant. The said letter was submitted to demonstrate a case working error as defined in paragraph 2.11 (a) (i) of Appendix AR. It was said that AR 2.4 (a) and (b) were met.
19. Fourthly, and lastly, it was said that in assessing whether the applicant's earnings were from genuine employment, the respondent misdirected herself in law in relation to paragraph 19 (j) of Appendix A and failed to take into account relevant considerations."
No claim was advanced under article 8.
"The questions posed during the interview regarding the mismatch between the sums declared to UKVI and HMRC could not have come as a surprise to the applicant. Furthermore, the interviewing officer, after asking for an explanation, probed further by asking how the mistake had come about. The applicant, unarguably, had every opportunity to provide an explanation. The respondent was not required to go further and put an allegation of fraud to the applicant during the interview."
"1. The UTJ misdirected herself in law when judicially reviewing the Respondent's decisions and alternatively, misapplied the law following the case of R (Giri) v SSHD  EWCA Civ 784;
2. The UTJ was wrong to find that the Respondent's decisions were not vitiated by procedural unfairness;
3. The UTJ erred in upholding the Respondent's decision under para. 245CD (g) of the Immigration Rules ..."
Immigration History and the Decision
"Were it accepted that the figures declared to the Home Office were an accurate representation of your self-employed earnings between 20 January 2012 and 19 January 2013, your actions in failing to declare your earnings in full to [HMRC] would lead your application to be refused under Paragraph 322(5) of the Immigration Rules based on your character and conduct.
The Secretary of State considers that it would be undesirable for you to remain in the United Kingdom based on the fact that you have been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration by failing to declare your claimed self-employed earnings to HMRC at the time and/or falsely representing your self-employed income to obtain leave to remain in the United Kingdom. Your application for indefinite leave to remain in the United Kingdom as a [T1GM] is therefore refused under Paragraph 322(5) of the Immigration Rules."
It will be noted that the Secretary of State's conclusion was based not on a declaration of false earnings but on a failure to submit tax returns at all.
"We have checked the HMRC records we hold for yourself and they have confirmed that at the time of your application the total self-employed earnings declared for the tax years 2012/3 was £0. It is noted you submitted a tax calculation from HMRC with your application, which was printed on the 17/02/2016. However, the fact that you may have retrospectively amended your earnings is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with UKVI, HMRC or both organisations.
It is noted that you have submitted further documentation with your administrative review. However, we are unable to accept this as we deem it to be fresh evidence. Your application was considered and decided on the basis of the evidence submitted before the date on which the application was decided. We will not consider new evidence or information when reconsidering a decision that was provided after that decision has been taken, unless it meets the requirements specified in paragraph AR2.4 of Appendix AR of the Immigration Rules. It is your responsibility to ensure that all appropriate evidence is submitted with the application for leave to remain.
The evidence that you have provided with this application was not sent with the original application. It is not eligible for consideration because it is not evidence that:
- was supplied previously but was not considered or considered incorrectly
- proves that documents we assessed to be false were in fact genuine
- proves the date of the previous application.
We are satisfied that the records we hold from HMRC are accurate and reflect your declarations to them. As a result, we maintain that it is not acceptable to submit earnings to UKVI and then subsequently not declare your full earnings to HMRC. We maintain that you had a personal responsibility to ensure that earnings submitted to UKVI to gain leave to remain corresponded with those declared to HMRC.
You claim in your administrative review that the UKVI has failed to exercise discretion when considering your case. You claim that as your application was refused under 322(5), the caseworker was obliged to seek an explanation or information from yourself before refusing your application. However, it is noted that during your appointment at Sheffield Premium Centre on the 19 July 2016 you completed a questionnaire in relation to your previous earnings. Question 9 asked: Are you satisfied that the self-assessment tax returns submitted to HMRC accurately reflected your self-employed income? to which you answered 'yes'. We therefore maintain that you were given an opportunity to provide reasons as to why your tax returns were submitted late which you failed to do. We therefore maintain that your application has been considered fairly and in line with the Immigration Rules.
You claim that the Secretary of State has asserted that from the evidence your actions were deliberate which you claim 'is irrational'. Careful consideration has been given to this point. However, our response is that the refusal under paragraph 322(5) is appropriate due to your conduct in declaring inconsistent earnings to UKVI and HRMC. Moreover, we are satisfied that a decision has been reached on your application fairly and in line with the Immigration Rules.
Further in your administrative review, you claim that we should [have] exercised evidential flexibility under paragraph 245AA of the Immigration Rules and requested an explanation from yourself for the discrepancy. However, as outlined above we maintain that you were provided with an opportunity to provide an explanation in the questionnaire you completed at Sheffield Premium Centre which you failed to do so. Moreover, it is noted that in your administrative review you have not provided an explanation as to why your tax returns were submitted significantly late."
(1) The Secretary of State acted unfairly in failing to afford Mr Majumder an opportunity to put forward an explanation as to why his tax return was submitted late, to rebut the allegation that he had been dishonest, prior to making the decision.
(2) The Secretary of State had acted irrationally in concluding that the Applicant fell within paragraph 322 (5).
(3) The Secretary of State had erred in exercising his discretion to refuse the application under paragraph 322 (5).
No reliance was placed on Mr and Mrs Majumder's article 8 rights.
(1) There was no duty on the Secretary of State to seek further information from Mr Majumder nor to offer him an opportunity to put forward an explanation for his failure to declare his income to HMRC and pay his tax on time, particularly as the 2016 questionnaire and the administrative review gave him such an opportunity which he failed to take (see paras. 18 and 22 of his determination). He was well aware of the situation at the time he made his 2016 application for ILR, and he failed to put the relevant information before the Secretary of State (para. 23).
(2) In the absence of any explanation at the time that the application was refused, the Secretary of State had not acted irrationally in finding Mr Majumder dishonest in failing to declare his income to HMRC at a time when he was relying on that income for the purposes of his application for leave to remain.
The Judge consequently refused the application for judicial review and ordered Mr and Mrs Majumder to pay the Secretary of State's costs of the claim in the sum of £4,079.
"It is arguable that the respondent may have failed to take into account relevant matters, in particular the applicant's explanation for having filed incorrect tax returns and the fact that he has since filed amended returns and paid the outstanding tax The respondent refused an earlier application in February 2016 for the same reason and it is at least arguable that in deciding the second application she has relied too heavily on her earlier decision and not given proper scrutiny to the documents and submissions accompanying the current application."
The Decision Letters
The First Decision: 25 April 2016
" The fact that you have retrospectively declared these claimed earnings to HMRC is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration."
"Were it accepted that the figures declared to the Home Office were an accurate representation of your self employed earnings between 22 December 2011 until 25 November 2012, your actions in failing to declare your earnings in full to HM Revenue & Customs would lead your application to be refused under Paragraph 322(5) of the Immigration Rules based on your character and conduct, as it would be considered that you have been deceitful or dishonest in your dealings with HM Revenue & Customs.
As your HM Revenue & Customs record of income is not consistent with the income you declared to the Home Office and the documents you submitted confirm the data the Home Office held in relation to your income, then it is considered you have used deception when submitting your application of 02 March 2013 as you have claimed points for earnings from self employment which were not declared to HM Revenue & Customs and are therefore deemed as fabricated.
It is acknowledged that a refusal under Paragraph 322(5) would not be mandatory, however the evidence submitted does not satisfactorily demonstrate that the discrepancy between the amount of self employed earning declared to HM Revenue & Customs and the amount declared on the application for leave to remain in the United Kingdom as a Tier 1 (General) Migrant for the tax years ending April 2012 and April 20133 were genuine errors. It is noted that there would have been a clear benefit to yourself either by failing to declare your full earnings to HM Revenue & Customs with respect to your tax liability or by falsely representing your earnings to UK Visas & Immigration to enable you to meet the points required to obtain leave to remain in the United Kingdom as a Tier 1 (General) Migrant. Given these factors it is considered a refusal under Paragraph 322(5) of the Immigration Rules is justified.
It is not considered a credible explanation that a [sic] you had previously submitted a self-assessment tax return with in-accuracies [sic] which have been corrected for the following periods; 06 April 2011 to 05 April 2012 and 06 April 2012 to 05 April 2013 and the declared earnings at the time were considerably lower that [sic] the actual amount you claimed on your application. Information on tax return liabilities and laws is publicly available and it is your responsibility to familiarise yourself with them before making an application. It was your responsibility to ensure that your tax return was submitted on time with the correction."
Again, the structure, and some of the detailed drafting, is rather opaque; but the overall effect is that the Secretary of State concluded that Mr Albert had been "deceitful or dishonest [sic]" in his tax returns for 2011/12 and 2012/13.
The Second Decision: 2 March 2017
"You state that you became aware of the errors in your tax returns after the refusal of your settlement application and contacted FSL Accountancy to review your income and expenses for the tax years 2009/10, 2010/11 and 2012/13.
You state you had initially submitted your tax return without the assistance of an accountant and that you made errors on your original HMRC tax return for 2012/13 by including non-allowable expenses, and have provided a list of those expenses. You have not provided a specific explanation for the errors on your original tax return for 2010/2011, nor for your failure to initially declare income from self-employment in 2009/10.
Consideration has been given to the explanation provided, and to your statement that HMRC are not pursuing any action with regard to the amended submissions. However it is clear that when applying for your Tier 1 General visa in February 2011 and again in March 2013 you were certain of the level of profit you had made from self employment and that it did not contain expenses where the payment constitutes a reimbursement for monies the applicant has previously outlaid, which are classed as unearned income and thus not considered as part of earnings when considering an application for leave to remain, but when submitting your tax returns over the same periods, you would have included such expenses. Your explanation that this was a genuine error when completing your self-assessment tax return is therefore not accepted.
Your actions in declaring different amounts of income to HMRC and UKVI lead to the conclusion that in light of your character and conduct it would be undesirable to allow you to remain in the United Kingdom. Your character and conduct with regards to declaring your income would lead to a refusal of your application under General Grounds Paragraph 322(5) of the Immigration Rules. Whilst a refusal under Paragraph 322(5) of the Immigration Rules is not a mandatory decision, the evidence submitted does not satisfactorily demonstrate that the discrepancy between the amount of self employed earnings declared to HM Revenue and Customs and the amount declared on the application for leave to remain in the United Kingdom as a Tier 1 (General) Migrant were genuine errors. It is noted that there would have been a clear benefit to yourself either by failing to declare your full earnings to HM Revenue & Customs with respect to your tax liability or by falsely representing your earnings to UK Visas & Immigration to enable you to meet the points required to obtain leave to remain in the United Kingdom as a Tier 1 (General) Migrant. Given these factors it is considered a refusal under Paragraph 322(5) of the Immigration Rules is justified."
The Administrative Review Decision: 6 April 2017
"You have argued that the caseworker who produced the reconsidered decision letter has simply reproduced the same refusal reasons as included on the initial decision letter, without taking into account the findings of the JR permission hearing. However we note that Judge Martin only granted permission to proceed with the JR. No conclusive determinations were promulgated following any substantive hearing regarding the issues in dispute. The SSHD agreed to reconsider the case, but as with any reconsideration, no new evidence is introduced. It is therefore entirely unsurprising that, based on exactly the same evidence, another caseworker evaluating your case arrived at the same conclusions and refused your application for the same reasons."
"The caseworker has correctly identified undesirable conduct and therefore 322(5) would be an appropriate rule when considering this conduct. The initial failure of you [sic] to correctly provided [sic] accurate information to government departments cause the caseworker to question your character and conduct As previously stated, the initial discrepancies in the income you submitted to UKVI and declared to HMRC were enough to cast doubt in the Secretary of State's mind on your character and conduct. It is deemed that due to your character and conduct it would not be conducive to the public good to allow you to remain indefinitely in the UK."
After making a particular criticism of the plausibility of one aspect of Mr Albert's explanation of the discrepancy, the Reasons continue:
" This casts doubt further doubt on your credibility, adding to the concerns of the Secretary of State ... Whilst all the evidence provided with your applications has been assessed accurately, the information you have provided is insufficient to relieve the Secretary of State of doubts regarding your income discrepancies declared to HMRC. The benefits of this are clear and as such, we maintain that based on your character and conduct when dealing with other government departments it is not desirable to allow you to remain in the UK."
After referring again to the information that shows the discrepancies, the Reasons continue:
"Based on this and taking into account the clear advantage to you either by reducing your income to reduce your tax liability, or by inflating your earnings to insure a grant of leave, it is deemed that your character and conduct when dealing with government departments is questionable. This justifies a refusal under Paragraph 322 (5)."
The Decision of the Upper Tribunal
Note 2 There is no right of appeal as such against a refusal of ILR under the PBS but if the decision falls to be treated as the refusal of a human rights claim an appeal will lie. We return to this in Part C below. [Back] Note 5 We were not referred to any particular offences concerning the dishonest making of false tax returns, but such cases would appear to fall within section 2 of the Fraud Act 2006 in the absence of any more specific provision. Section 24A of the Immigration Act 1971 makes it an offence to use deception in order to seek to obtain leave to remain. [Back] Note 6 Aspects of the provisions in question have recently been made the subject of a declaration of incompatibility under section 4 of the Human Rights Act 1998 see R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWHC 452 (Admin) but it is not necessary for us to consider that decision. [Back] Note 7 Ms Anderson said that the concession in Ahsan was made in the context of the pre-2014 Act scheme of appeal rights, which is no longer in force. We are not sure that that is correct, but in any event it appears to have been maintained inShrestha, which concerned the current scheme.
[Back] Note 8 We assume for these purposes that the Secretary of State would have followed a fair procedure first time round, and so considered any explanation proffered for the earnings discrepancy; but there might occasionally be cases where the applicant adduced convincing evidence of honest error for the first time in support of his or her fresh application. [Back] Note 9 We should note that Ms Anderson points out in her skeleton argument that the Amended Grounds of Appeal do not explicitly allege procedural unfairness; but she fairly acknowledges that the point had been argued in the UT and was developed in the skeleton argument covering the cases of the other Appellants, and she addresses it accordingly.
[Back] Note 10 It is convenient throughout this judgment to refer to the Secretary of State as he, the current incumbent being a man, although that was not so at the time of the decisions under challenge. [Back] Note 11 As we understand it, it is not standard to interview ILR applicants, whether they are using the premium service or otherwise, but an interview will be conducted if the immigration officer decides to do so. [Back]
Note 2 There is no right of appeal as such against a refusal of ILR under the PBS but if the decision falls to be treated as the refusal of a human rights claim an appeal will lie. We return to this in Part C below. [Back]
Note 5 We were not referred to any particular offences concerning the dishonest making of false tax returns, but such cases would appear to fall within section 2 of the Fraud Act 2006 in the absence of any more specific provision. Section 24A of the Immigration Act 1971 makes it an offence to use deception in order to seek to obtain leave to remain. [Back]
Note 6 Aspects of the provisions in question have recently been made the subject of a declaration of incompatibility under section 4 of the Human Rights Act 1998 see R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWHC 452 (Admin) but it is not necessary for us to consider that decision. [Back]
Note 7 Ms Anderson said that the concession in Ahsan was made in the context of the pre-2014 Act scheme of appeal rights, which is no longer in force. We are not sure that that is correct, but in any event it appears to have been maintained inShrestha, which concerned the current scheme. [Back]
Note 8 We assume for these purposes that the Secretary of State would have followed a fair procedure first time round, and so considered any explanation proffered for the earnings discrepancy; but there might occasionally be cases where the applicant adduced convincing evidence of honest error for the first time in support of his or her fresh application. [Back]
Note 9 We should note that Ms Anderson points out in her skeleton argument that the Amended Grounds of Appeal do not explicitly allege procedural unfairness; but she fairly acknowledges that the point had been argued in the UT and was developed in the skeleton argument covering the cases of the other Appellants, and she addresses it accordingly. [Back]
Note 10 It is convenient throughout this judgment to refer to the Secretary of State as he, the current incumbent being a man, although that was not so at the time of the decisions under challenge. [Back]
Note 11 As we understand it, it is not standard to interview ILR applicants, whether they are using the premium service or otherwise, but an interview will be conducted if the immigration officer decides to do so. [Back]