KA v Secretary of State for Work and Pensions
[2024] UKUT 248 (AAC)
Ahmad Zarrin Ghadam, R (on the application of) v Secretary Of State For The Home Department
12 July 2024
[2024] UKUT 281 (IAC)
Upper Tribunal
An Iranian man's UK visa was refused due to the Home Office's mistakes in applying the rules and being unfair. While the Home Office made errors, a court decided it's unlikely the result would change even if the mistakes were corrected, so the visa refusal stayed.
Key Facts
- •Applicant (Iranian citizen) applied for renewal of Tier 1 Entrepreneur leave to remain in the UK.
- •Respondent refused the application due to insufficient points under Appendix A of the Immigration Rules.
- •Applicant challenged the decision through judicial review, arguing misapplication of rules and procedural unfairness.
- •Applicant's business, Level Three, had only one client, Level Three Trading FZE, with a similar name.
- •Respondent's decision was based on concerns about the genuineness of the business, including website discrepancies and the client relationship.
Legal Principles
When a rule permits, but doesn't require, consideration of certain matters, a decision not to make further inquiries should only be struck down if no reasonable decision-maker could deem their inquiries sufficient.
R (Khatun) and others v London Borough of Newham [2004] EWCA Civ 55; R v Nottingham City Council ex parte Costello (1989) 21 HLR 301
Under Section 31(2A) of the Senior Courts Act 1981, the court has a duty to refuse relief if it's highly likely the outcome wouldn't have been substantially different without the complained-of conduct, subject to a discretion to grant a remedy in exceptional public interest.
R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; Section 31(2A) Senior Courts Act 1981
In points-based systems, the duty of fairness is attenuated; mere existence of an interview doesn't automatically satisfy procedural fairness.
R (Taj) v SSHD [2021] EWCA Civ 19; Balajigari and others v SSHD [2019] EWCA Civ 673
The materiality test under Section 31(2A) is different from the test for statutory appeals; it requires a high likelihood that the outcome wouldn't be substantially different, not that any rational tribunal would reach the same decision.
ASO (Iraq) v SSHD [2023] EWCA Civ 1282; Section 31(2A) Senior Courts Act 1981
Outcomes
Applicant's appeal succeeds on grounds (1) and (2) (misapplication of rules and failure to consider relevant factors).
Respondent misapplied the Immigration Rules, added a misleading gloss, and failed to consider its discretion in evaluating factors under Paragraph 245DD(l), despite having relevant material. The inconsistency between awarding points for some aspects and zero for others, coupled with a failure to explain the decision not to consider other factors, constituted a public law error.
Applicant's appeal succeeds on ground (3) (procedural unfairness and perversity).
The Respondent's decision was procedurally unfair due to its failure to address concerns about the Applicant's website and its misrecording of the website address. The decision was also partially perverse due to relying on the Applicant's failure to correct the Respondent's error.
The court does not quash the decision under Section 31(2A) despite finding errors.
While errors were found, the court determined it could not conclude that it was highly likely the outcome would have been substantially different had the Respondent considered its discretion under Paragraph 245DD(l) and addressed procedural unfairness. The court found that addressing this would involve it trespassing into the fact-finding role of the decision-maker.
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