Court of Appeal’s judgment in the case THE QUEEN ON THE APPLICATION OF BALAJIGARI v SSHD (‘‘Balajigari’’)
The Court of Appeal (‘‘Court’’) in the Balajigari case heard four appeals together on 23/24th January 2019. These four appeals had earlier been linked together by the Court as they raise similar issues arising out of applications for Indefinite Leave to Remain (‘‘ILR’’) made by Tier 1 (General) Migrants under paragraph 245 (CD) of the Immigration Rules. The claimants were successful in their appeal, and the case has had wide reaching effects. The judgment can be read here.
ITN Solicitors’ Head of Immigration, Syed Naqvi, acted for Migrant Rights Network in their application to intervene in this case.
At the centre of these appeals was the Home Office’s allegation that the appellants’ conduct, rendered their presence in the UK ‘undesirable’ and justified an outright refusal of their ILR applications based on tax-related issues with the HMRC under paragraph 322(5) of the Immigration Rules.
We had, along with Migrant Rights Network, Highly Skilled Migrants Group lobbied Parliament and campaigned determinedly on this issue. Our campaign, finally resulted in the Home Affairs Select Committee questioning the Minister for Immigration about the use of paragraph 322(5). This in turn led to the Home Office conducting an internal review into these cases, the results of which were published on 22nd November 2018.
What this judgement means in terms of how the Home Office should or can apply 322(5) in future?
The Court handed down judgment on 16th April 2019 allowing all four appeals. Whilst allowing the four appeals, the Court said that the Home Office’s approach in all earnings discrepancy cases was ‘‘legally flawed’’ as the Home Office had not provided the appellants with an opportunity to put forward an innocent explanation before coming to a conclusion that their income discrepancy was a direct result of their dishonesty.
The Court also found that the Home Office did not address the questions of whether the alleged dishonesty made the presence of the applicants in the UK undesirable. The Court found that the Home Office did not consider the question of whether there were other factors which may have outweighed the presumption in favour of the applicants’ removal, or provide the applicants with an opportunity to raise any matters relevant to the above questions.
The Court has recommended a “minded to refuse” procedure which informs applicants of the Home Office’s concerns and gives them an opportunity to show cause why ILR should not be refused by offering an innocent explanation of the discrepancies and/or drawing attention to matters relevant to the “undesirability” or “discretion” issues.
What’s the most critical part of the judgement (by the judges, against the government)?
Paragraph 14 of the judgment is the most critical part of the judgment, Underhill LJ specifically states that “great injustice” had been done in cases where paragraph 322(5) was applied in relation to those who were innocent.
Overall, the judgment is a very damning indictment of the Home Office’s unfair use of paragraph 322(5) which has brought untold misery to many applicants and their families. The Court agrees that the Home Office did not give the applicants an opportunity to explain themselves before subjecting them to the consequences of the hostile environment.
In terms of the Home Office’s supposed safeguards such as their ‘‘Administrative Review’’ process, the Court has said that the ‘‘Admin Review’’ process was not an answer for a number of reasons principally because the applicants were not normally allowed to produce evidence that was not produced before the caseworker who made the original decision.
The Court criticised the Home Office’s self-assessment questionnaires that were being sent to the applicants. The Court said that these questionnaires did not represent a fair opportunity to address the Home Office’s allegation of dishonesty as these questionnaires simply did not seek to put the allegation of dishonesty to the applicants.
The allegation of dishonesty and not being provided with an opportunity to make representations in response to the allegation of dishonesty before the decision was made was specifically deemed by the Court as a “serious procedural unfairness.”
The Court expressed concern about the Home Office’s interview process. The Court made the observation that an applicant should not be expected to give detailed and definitive answers at an interview to accusations of dishonesty without any prior notice. Whilst making this point, the Court highlighted one of the appellants - Mr. Kawos’ predicament. Mr. Kawos who was invited to an interview and was asked to explain how the tax related error in his case was detected and when he volunteered to go to his car in order to collect the documents to corroborate his stance, he was not then given the opportunity to do so.
The Court was also critical of the Home Office’s use of template refusal letters by saying that they ‘‘betrayed a failure to engage with the issue’’ at stake.
Further, the Court felt that the Home Office’s failure to not conduct a balancing exercise when assessing applicants’ desirability including any substantial positive contribution made by the applicant was not a good practice.
Our campaign had sought to highlight some of the above problems at the outset with the Home Office repeatedly justifying their improper and heavy-handed approach. The Court’s endorsement and acknowledgment of the same points that we had painstakingly been making during our campaign is a great vindication of our campaign.
What happens now?
The four applicants have been vindicated. Their claim that the Home Office’s approach in their cases was procedurally improper and ‘‘legally flawed’’ has been accepted.
The Home Office’s decision in one of the four appeals was formally quashed. The remaining three appeals have been remitted to the Upper Tribunal for the Upper Tribunal to simply consider the question of ‘‘materiality’’ i.e. whether the result would have been the same even if the applicants had been given an opportunity to explain the discrepancies?
The Home Office sought permission from the Court of Appeal to appeal this judgment to the Supreme Court. However, this application was turned down by the Court of Appeal. The Home Office then sought permission to appeal directly from the Supreme Court before informing the Supreme Court that they no longer wished to appeal the Court of Appeal’s decision in Balajigari.
The immigration judgment is overall very helpful for the wider cohort affected by the Home Office’s use of paragraph 322 (5). Applicants with pending First-tier Tribunal (FtT) appeals can now rely on this judgment at their forthcoming hearings.
As for those with judicial review cases in the Upper Tribunal and the Court of Appeal, the Home Office has stated that they ‘‘will shortly be publishing supplementary guidance relating to refusals of leave on the basis of false representations’’ which ‘‘will be applicable to the new decision in each case.’’
Please feel free to contact us if you require any assistance in forthcoming FtT appeals in light of the Balajiari judgment or require assistance in addressing new Home Office decisions or the Home Office’s proposed new guidance arising from their settlement of such cases or tactical assistance in settling your judicial review claims.