HJT Chapter 2 - General Requirements (reversed)

Question 1

all mandatory requirements, including evidential requirements, must be listed in the Immigration Rules

Answer 1

Alvi [2012] UKSC 33

(largely upholds the earlier decision of Pankina [2010] EWCA Civ 719)

Question 2

Concepts within the Rules (which are not defined within the Rules) should be construed:

“sensibly according to the natural and ordinary meaning of the word used, recognising that they are statements of the Secretary of State administrative policy.”

Answer 2

Mahad [2009] UKSC16

Let’s not go mahad construing these words

Question 3

where there are no transitional provisions, the Rules to be applied to an outstanding application will simply be those in force at the date of decision: whether or not they are the same Rules under which the Applicant applied.

Answer 3

Odelola [2009] 3 All ER 1061

The ode sung is that written today

Question 4

The situation is a little more complicated regarding appeals. It is generally thought that where there are technical requirements in the Rules (as to periods of stay or holding particular sums of money), it is the rule at the date of decision which will be the focus on appeal: anything else would be unfair. However, where the Rule addresses human rights, it may well be the version in force at the date of the appeal hearing which is the focus: see

Answer 4

YM (Uganda) [2014] EWCA Civ 1292 at [39]

Yesterday’s Might be abanda

Question 5

To succeed on the grounds of legitimate expectation a clear promise has to be made that the rules will remain the same (in general such expectation must be “clear, unambiguous and devoid of relevant qualification”: Bingham LJ in

Answer 5

Bingham LJ in MFK [1990] 1 WLR 1545)

Make it Fricking Klear

Question 6

A rare case which succeeded on the grounds of legitimate expectation. Junior overseas doctors who had been lured to the UK by promises of a career here but after arrival were being deprived of an opportunity to apply for jobs.

Answer 6

Bapio Action Ltd[2008] UKHL 27

Question 7

Mr Justice Bean held that a promise was made to those that were enticed to enter the UK under the HSMP scheme and leave behind them their jobs in order to make new lives for themselves and their families in the UK. The promise was that the rules under which they entered the UK would be the rules under which their settlement applications would be decided in four years’ time. In fact, the Home Office tightened up the rules considerably, preventing many from qualifying for settlement. The court held that there was a legitimate expectation on the part of the migrants that they would be able to achieve ILR on the basis of the rules in force when they travelled here

Answer 7

R (on the application of HSMP Forum Ltd) [2008] EWHC 664 (Admin)

Question 8

the court accepts that a legitimate expectation could arise from statements made based on a wrong view of the law, and from positions expressed in Home Office Guidance as well as from the IRs themselves. The law accepts that legitimate expectations arising from official positions can be defeated where there is sufficient public interest in enforcing the change. But for a changes to be proportionate, the regime should consider if a policy change should only apply to future applicants and the extent to which transitional provisions could provide protection. As it happened, no clear representation had been made to the Turkish business community upon which they could found a legitimate expectation as to their future treatment.

Answer 8

Alliance of Turkish Business People [2020] EWCA Civ 553

Question 9

there is no obligation on the HO to take account of late information – though it is best practice to do so.

Answer 9

Mudiyanselage [2018] EWCA Civ 6

Muddy and so laggy

Question 10

the Evidential flexibility policy in the Immigration Staff Guidance (as at March 2013) did provide for more discretion than did the Rules, and seems to indicate that even a failure to supply a specified document might be remediable under the broader guidance

Answer 10

SH (Pakistan) [2016] EWCA Civ 426

some hope for Granny Fran (who failed to supply a specified document)

Question 11

examines another case where a PBS applicant’s application had been refused because the SSHD considered that essential documents specified by the Immigration Rules were missing. The applicant maintained that those documents had been supplied with the application. The Court found that the general position in judicial review proceedings was that the evidence of the government respondent would be accepted. The exceptions were where the relevant individuals responsible for contested evidence were summoned for cross examination, or where the documents before the court showed that the facts asserted by the respondent were simply untenable. Here, no such application for cross examination had been made. Further, none of the supporting material that might be expected to accompany a credible allegation that relevant documents had been truly supplied on the application, for example witness statements from those who had helped with its finalisation, had been supplied

Answer 11

Singh [2018] EWCA Civ 2861

You have to make the person Sing under X-exam

Question 12

clarifies that the balance of probabilities applies to “conducive to the public good” decisions, with the qualification that the seriousness of the allegation is reflected in the quality of evidence which is to be subject to critical and anxious scrutiny.

Answer 12

Hussain [2021] EWCA Civ 2781

Hussies slain? on BOP

Question 13

In 2018 case (preceding Balajigari) the UT explains the approach to tax discrepancy JRs.

The SSHD is entitled to infer dishonesty from a significant difference between the income declared to UKVI and HMRC.
The evidence provided by an applicant must be assessed to determine whether it displaces that natural inference – this is assessed on the balance of probabilities, bearing in mind the severity of the accusation being made and its consequences.
If the explanation is that an accountant made an error, this must be assessed in the context that accountants require individuals to sign off their accounts having checked the accuracy of their contents for themselves – disclosure of correspondence and tax records is to be expected in these cases.
Businesspeople can be expected to appreciate the approximate tax (given their earnings) they should be paying whatever the professional advice they receive.
One would normally expect tax errors to be picked up sooner rather than later.

Answer 13

Khan [2018] UKUT 384 (IAC)

You khan’t wriggle out so easily

Question 14

Landmark case re tax discrepanices. CoA found:
Active dishonesty is required for a good character refusal on tax discrepancy grounds, though misdemeanours did not necessarily have to be criminal in nature, nor have resulted in HMRC penalties
Procedural fairness demands that the dishonesty allegation is clearly made in the decision making process
The UT will have to determine dishonesty allegations for itself in judicial review proceedings where they are relevant to proportionality
In some cases, applicants might still be granted leave despite a finding of dishonesty, e.g. where this is in the best interests of a child
The question of whether unpublished dishonesty allegations (ie the possible damage to reputation caused by the SSHD terminating one’s lawful status in the UK) can infringe private life is left open.

Answer 14

Balajigari [2019] EWCA Civ 673

Question 15

considers the difference between tax discrepancy cases where there has been a finding of dishonest conduct and those where there has merely been some lesser culpability, such as carelessness. The Court emphasises that there must be a balancing exercise which weighs positive features of the migrant’s character against the negatives, in all but the most extreme cases. However, the greater the dishonesty, the stronger the positive factors would have to be to outweigh it. Decision makers were discouraged from using the language of “lack of integrity” in their conclusions, as that was a term that had specialist legal connotations only really appropriate for analysing the conduct of professionals.

Answer 15

Yaseen [2020] EWCA Civ 157

Ya seen the difference

Question 16

UT considers the evidence given by accountants in r322(5) “tax discrepancy” cases. Where a reputable professional takes responsibility for an error, the FTT is very likely to accept their evidence. In this particular case the relevant accountant’s letter was later shown to have been fraudulently obtained (when the supposed author contacted the Tribunal to express their outrage). But accountants taking responsibility for errors that led to mistakes in tax returns should attend the FTT to give oral evidence about their mistake. This was particularly important where their letters accepting responsibility were very brief.

Answer 16

Abbasi [2020] UKUT 27

Professional abbasi-ng themselves

Question 17

People without the right of appeal might wish to consider where a human rights claim is the best way forward – they could argue that the allegation against their good character is part of their private life, and that this combined with their lengthy lawful residence in the UK means they have established private life here. The bad character allegation is essentially relevant to whether it is disproportionate to interfere with that private life. This is essentially the thinking in

Answer 17

Ahsan [2017] EWCA Civ 2009.

Ah! San (honorific). Character is important.

Question 18

there is an implied power held by the HO to defer consideration of an application, as where there is a pending criminal prosecution. This was a procedural power which was necessary for the proper administration of immigration control.

Answer 18

X [2021] EWCA Civ 1480

X no way out - queue

Question 19

The President explains in X that decisions in general refusal reason cases where dishonesty is alleged involve a “moderately complex exercise” in which “the evidential pendulum swings three times and in three different directions”. To quote more of his evocative words directly:
(a) First, where the Secretary of State alleges that an applicant has practised dishonesty or deception in an application for leave to remain, there is an evidential burden on the Secretary of State. This requires that sufficient evidence be adduced to raise an issue as to the existence or non-existence of a fact in issue: for example, by producing the completed application which is prima facie deceitful in some material fashion.

(b) The spotlight thereby switches to the applicant. If he discharges the burden – again, an evidential one – of raising an innocent explanation, namely an account which satisfies the minimum level of plausibility, a further transfer of the burden of proof occurs.

(c) Where (b) is satisfied, the burden rests on the Secretary of State to establish, on the balance of probabilities, that the Appellant’s prima facie innocent explanation is to be rejected.

Answer 19

Muhandiramge [2015] UKUT 675 (IAC)

(Muhan)(di)(ramge) (3 swings)

My hand pointing in three directions at dishonesty

(But this was rejected by the UT in DK and RK in 2022)

Question 20

X rejects the notion that the burden of proof switches between the parties: the burden is assigned by law at the outset of proceedings. It might be judicially convenient to consider the matter in stages but that did not mean the burden moved between the parties. As of early 2022 most immigration practitioners were comfortable with the thinking in Muhandiramge and will have to digest the implications of X with care.

Answer 20

DK and RK India [2022] UKUT 112 (IAC)

Don’t Keep Reversing Kilos

Question 21

If the decision letter raises issues that touch on the general refusal reasons without expressly citing them, the judge may consider them, subject to fairness

Answer 21

MO Ghana [2007] UKAIT 00014)

More - gonna

Question 22

Where factors were known to a decision maker which might have led to their use, but they do not take the point, the judge is entitled to presume that they are not relevant

Answer 22

RM India [2006] UKAIT 00039.

Reasons Missing Indie decision

Question 23

made it clear that published policies should be followed unless there was a good justification for departing from them:

“Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so.”

Answer 23

Nadarajah [2005] EWCA Civ 1363

Nada-raasaa (reason)

Question 24

If both parents are present unlawfully, the starting point is that the family should expect to return to their country of nationality

Answer 24

KO (Nigeria) [2018] UKSC 53

Question 25

The useful case of X explains that:

the duty does not have to be referenced in terms in decision letters, but it needs to have been given effect by the decision overall
the Secretary of State should consider consulting children to ascertain their wishes and feelings in any given case
whilst normally the Tribunal should consider s55 issues based on the material put before it, it may be necessary to seek further information from the migrant’s side, such as expert medical (including mental health) reports, or from the Home Office side where they can be expected to have access to reports emanating from criminal proceedings or social services involvement, or where the views of children have not been sought
Appeals and applications involving children should always be processed with the minimum of delay.

Answer 25

MK [2015] UKUT 223 (IAC)

Mr Garrison teaches children

Question 26

the UT noted that the SSHD’s s55 Guidance did not require reports to be commissioned re a child’s best interests. Ordinarily their best interests were to remain with their parents whilst the family’s immigration position was established. Officials needed to be alive to any signs that the ostensible position of a child was not the truthful one, though even then detailed examination was the role of other agencies than the SSHD. In England and Wales a breach of the section 55(3) duty would be resolved by the Tribunal which was essentially an extension of the SSHD’s decision making process. Essentially a child’s wishes and feelings should be taken into account recognising that it will not always be possible to reach conclusions with which the child would agree. There would be rare and exceptional cases where the Tribunal might call for further evidence: as where it had suspicions that a child’s welfare was at stake due to a parent’s attempt to exploit their relationship for immigration purposes. However in Northern Ireland the precedent of JG applies meaning that a failure to conscientiously apply each element of the statutory Guidance would breach the procedural protection found in ECHR Art 8.

Answer 26

Arturas [2021] UKUT 237 (IAC)

Thinking carefully about children’s best interest is an art

Question 27

One has to have notice of a decision for it be effective

Answer 27

Anufrijeva [2004] 1 AC 604 at 26-28

Question 28

Where the SSHD has made the wrong decision on someone’s case (eg accusing them of dishonesty but where that allegation is subsequently withdrawn or judicially overturned), the SSHD should act creatively to put them back in the same position as they would have been in had the error never occurred

Answer 28

Ahsan [2017] EWCA Civ 2009 §120

Question 29

The SSHD should take account of any clearly established historic injustice in the way the individual or their community has been treated

Answer 29

Mousasaoui[2016] EWCA Civ 50

History of cooking mice into mouse-a-toui

Question 30

Decision makers must interview applicants before refusing them on the basis of allegations of dishonesty, or due to serious concerns as to their character or conduct

Answer 30

see Balajigari

Question 31

It may be unfair not to offer access to the internet in order for an applicant to show their bank statements where the matter became relevant during their interview

Answer 31

De Aquino [2022] EWHC 2730 (Admin).

San Marino bank statements

Question 32

The SSHD must notify an individual reasonably promptly of any matter that stands to defeat their application of which they could not reasonably be aware

Answer 32

Pathan [2020] UKSC 41

Pathos, pathetic otherwise