Naidu, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 156

Case No C2/2015/0041[2016] EWCA Civ 156
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
UTJ Lane
JR54162014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/03/2016
Before
LORD JUSTICE LLOYD JONESLORD JUSTICE BEATSON
Between
The Queen on the application of Prashant Shankar NaiduAppellantSecretary of State for the Home DepartmentRespondent
Amaka Nnamani (instructed by AH Law Ltd) for AppellantWilliam Hansen (instructed by Government Legal Department) for RespondentHearing Hearing date: 1 March 2016
JudgmentLord Justice Beatson :Introduction
[1]This is the appeal of Prashant Shankar Naidu, a citizen of the Republic of India, against the decision by Upper Tribunal Judge Peter Lane dated 21 November 2014 refusing him permission to bring judicial review proceedings and refusing him permission to appeal to this court. Permission was given by Burnett LJ on 2 April 2015. Mr Naidu’s challenge is to the decision made by an Entry Clearance Officer in Mumbai on behalf of the Secretary of State on 23 January 2014 to refuse him a business visitor visa to the United Kingdom.[2]The application for a visa which resulted in the refusal on 23 January 2014 was Mr Naidu’s second application. The second application was refused because of the basis on which the Entry Clearance Officer refused an earlier application. The earlier application had been refused on 17 December 2013 on two grounds flowing from the decision of the Entry Clearance Officer that Mr Naidu submitted a false document relating to his business, Unique Express with that application. The first ground was that Mr Naidu had not satisfied the requirements of paragraphs 46G of the Immigration Rules because the Entry Clearance Officer was not satisfied that he intended to undertake a genuine business visit. The second ground was that Mr Naidu had used deception in his application by submitting the false document so that the application had to be refused under paragraph 320(7A) of the Immigration Rules (“the Rules”).[3]The consequence of a refusal of leave under paragraph 320(7A) is to bar those so refused from being given leave for specified periods of time, which in the case of the use of deception is for 10 years: see paragraph 320(7B)(ii). In Mr Naidu’s case he would thus be barred until December 2023. It was the second ground on which Mr Nadu’s first application was refused that led to the refusal of his second application pursuant to paragraph 320(7B).[4]Mr Naidu is the proprietor of a courier and logistics business, Unique Express, established in 2002. Its registered head office is in Pune, India, and it has branch offices. These proceedings concern the status of the firm’s operation in Mumbai at a specified address. On 29 November 2013, Mr Naidu applied to the Entry Clearance Officer at the British Deputy High Commission in Mumbai for entry clearance to attend business meetings with Paragon Courier and Cargo (“Paragon”) at an address in Hounslow. As well as his application form, he submitted a copy of the invitation letter from Paragon and a letter relating to Unique Express’s business. The letterhead to the letter on Unique Express’s paper gives two addresses for Unique Express, one in Mumbai and one in Bangalore. The Mumbai address is “Parle Coloy … Vie Parle, (East) Mumbai 400057”. The foot of the document contains the address of “HO”, i.e. head office, which is an address in Pune. The address of the firm in the application form was the Pune address.

The decisions refusing entry clearance

[5]A letter dated 17 December 2013 refused the November application for entry clearance. The Entry Clearance Officer’s letter stated that the onus is on applicants to demonstrate that they meet the requirements of the Rules. It referred to Mr Naidu’s declaration in the application that the information he provided is complete and true to the best of his knowledge, and then stated:
“In support of your application you have submitted a letter relating to your business, Unique Express. As a result of checks made by this office, detailed in a Document Verification Report, I am not satisfied, on the balance of probabilities, that this document is genuine. This fact has damaged the credibility of your application and I am therefore not satisfied that you intend to undertake a genuine business visit or that you will be maintained and accommodated without recourse to public funds or taking employment (paragraph 46(g)(i) - (ii) of HC 395 as amended. Furthermore, because in your application you submitted what I am satisfied to be a false business letter, your application is refused under paragraph 320(7a) [sic] of the Immigration Rules. You should note that because this application for entry clearance has been refused under paragraph 320(7a) [sic] of the Immigration Rules, any future applications may also be refused under paragraph 320(7b) [sic] of the Immigration Rules until 17 December 2023 (subject to the requirements set out in paragraph A320).”
Mr Naidu was given no further details of the document verification process at that time. The process was summarised in an email response dated 20 February 2014 by the Secretary of State to an emailed letter before claim from Mr Naidu’s solicitors and a redacted copy was provided with the Secretary of State’s Acknowledgement of Service dated 19 June 2014. I will summarise its contents later in this judgment.[6]After Mr Naidu received the notice of refusal, on 6 January 2014 he submitted a second application online. In part 8, question 88, he referred to the refusal of his previous application on the ground of a false invitation letter and stated that he wished to “appeal and clarify so [the ECO] can consider my application for visa approval”. He stated that he was enclosing the invitation letter from Paragon and also adding an invitation letter from “an additional counterpart”.[7]In addition to his online application, Mr Naidu wrote to the Deputy High Commission. His letter, dated 8 January 2014, stated that he wished to provide clarity on the business relationship between Unique Express and Paragon as he felt the decision rejecting his application was based on “less documentation”. Later in the letter, he expressed his surprise and shock that the application had been rejected on the ground that the invitation letter submitted was not genuine. He stated that he was also a director of Total Courier and Cargo Logistics PBT Ltd, which had business relations with Paragon, and enclosed clarification by Paragon and what he described as “an additional invitation” from another freight forwarding company, Maina, which is based in Middlesex.[8]The explanation for Mr Naidu’s covering letter focusing on the status of the invitation rather than the genuineness of the covering letter relating to Unique Express may have been that there was nothing in the decision letter to indicate that the problem related to the address given for Unique Express’s office in Mumbai. Although he did not refer to them in the covering letter, Mr Naidu also submitted an unsigned and undated document on Unique Express’s paper. It was headed “Additional Documents” and listed documents under six headings. At one stage, Ms Nnamani maintained these documents had been submitted with the first application. In view of the terms of the letter dated 8 January and the reference to the submission of “an additional invitation” from Maina, she accepted they were only submitted with the second application.[9]The other documents were submitted in order to show that Unique Express was a genuine and subsisting business. They included many documents relating to the Pune address, the financial status of Mr Naidu and Unique Express, other property owned by him, his relationship with Total Courier, and documents about his family status. The documents relating to Unique Express showed that there was a business of that name which was registered as such with the Indian Ministry of Commerce and was also registered with the Central Board of Excise and Customs, had an import/export code number, and filed income tax returns. Given the particular concern of the Entry Clearance Officer, then unknown to Mr Naidu, those documents do not directly assist this application although they do provide evidence that the business was genuine. But another document, of direct relevance to the particular concern, was also submitted. It is a registration certificate of establishment under the Bombay Shops and Establishments Act 1948 dated 30 November 2012, giving the same Mumbai address for Unique Express as that on the letterhead with the applications.[10]Ms Nnamani’s case was initially presented on the basis that two other relevant documents, an “Agreement of Leave and Licence” dated 4 September 2012 in which a Mr Nishar granted Mr Naidu a licence over those premises for the business, and a bill from Tata Teleservices for Unique Express at the Mumbai address, were submitted to the Entry Clearance Officer at that time. Neither of these is mentioned on the list of documents or the documents that were listed as submitted with the second application in an email dated 18 February 2014, which is stated to be a letter before claim. The bill from Tata is dated 7 January 2014, and relates to the period between 15 December 2013 and 14 January 2014. Mr Hansen is wrong to state that the bill could not have been submitted under cover of the letter dated 8 January, because it may have arrived just before that letter was posted. But the failure to refer to it in either list means the court cannot be satisfied that it was then submitted. The same is true of the Agreement of Leave and Licence.[11]Mr Naidu’s second application was refused on 23 January 2014. The Entry Clearance Officer’s notice of the decision stated inter alia:
“ … I am aware from records held that you were refused a visa on 17 December 2013 because you submitted a false document relating to your business, Unique Express. Specifically, the Mumbai address you provided for your business was found to be that of a different courier company. The fact that you previously employed deception leads me to doubt the veracity of your statement and your latest visa application. In light of this, I am not satisfied that you plan to leave the UK at the end of your visit or that you are genuinely seeking entry as a business visitor … Furthermore, because you submitted a false document in your previous application, I have considered your application under paragraph 320(7B) and am satisfied that your application falls to be refused under paragraph 320(7B) of the Immigration Rules. You should note that any future applications will continue to be refused under paragraph 320(7B) of the Immigration Rules until 17 December 2023.”
[12]Following the second refusal, there were further exchanges, including two letters before claim dated 18 February and 6 March 2014. The response to that dated 18 February is the email dated 20 February, to which I have referred. There was also a briefer response dated 24 February 2014 to a subsequent email. The Secretary of State stated that the letter before claim dated 6 March 2014 had been received on 24 March, and a reply was sent to it by post, but that letter was not before the court. These proceedings challenging the decision dated 23 January 2014 were filed on 16 April 2014.

The investigation by the respondent

[13]In the email dated 20 February 2014 responding to the letter before claim dated 18 February 2014, the Entry Clearance Manager at Mumbai stated that during the process of the first application, investigations were conducted into Mr Naidu’s claimed business, Unique Express. It is stated: “Firstly, a telephone call was placed to the business and the person who answered stated it was Total Couriers. Secondly, a field trip was conducted to the premises themselves on 11 December 2013. At the given address, it was found there were two other courier companies, Total and GMS. A business called Unique Express was not present. Conversations with the workers within Total and GMS revealed that Unique Express did not occupy that address, and it was suggested it may be nearby. However, despite searching nearby, there was no such by the name of Unique Express found”.[14]The response referred to the documents submitted with the second application, which is stated to have been made on 9 January 2014. The Entry Clearance Manager stated:
“I note that the address on most of the documents all relate to an address in Pune, but that one document alone relates to an address in Vie-Parl, Mumbai. It appears that all correspondence relating to the business of Unique Express is sent to the applicant’s home address in Pune, and not to either the Mumbai or Bangalore business addresses. The business letters submitted with both these visa applications give branch addresses in Mumbai and in Bangalore. Unfortunately, none of the documents received so far explain why it was found on a visit by our officers that the business premises itself in Mumbai did not exist.”
[15]The email concluded that, in the light of what was said, the writer was satisfied that “the higher standard of proof required for refusals under paragraph 320(7A) and (7B) has been met … and that the decision to refuse Mr Naidu’s second business visit visa application was correct”. The Secretary of State’s summary grounds and acknowledgement of service stated that the response stated that the results of the field trip had been documented in a Document Verification Report held by the Secretary of State.[16]I have stated that the Document Verification Report was not provided at the time of the decision. It was not in the bundle filed when the judicial review proceedings were lodged, but it was attached to the Secretary of State’s acknowledgement of service. The verifier had worked for the Deputy High Commission’s visa department since 2011 and had been trained for forgery detection. He stated in his report that when he called the telephone number for Unique Express found on JustDial and the local search engine the person who answered the call stated that it was the number for Total Couriers. When the verifier visited the address, the person he spoke to informed him that the office was that of Total Couriers and GMS Couriers but not that of Unique Express. Despite checking in the nearby vicinity, the verifier found no courier service by the name of Unique Express.[17]The summary grounds conclude by stating that, although Mr Naidu had claimed that his application was reliant on the head office in Pune and that he is the director of MS Total Courier and Cargo Logistics, operating from the same Mumbai office premises as are on the letterhead, that did not explain why the documents stated that Unique Express is located at those premises.

The refusal of permission

[18]When refusing permission and certifying the application as totally without merit, UTJ Peter Lane stated:
“The application is bound to fail. The respondent has shown unarguably that false documents were submitted in connection with the application for entry clearance, with the result that the application had to be rejected. The application material included letters from ‘Unique Express’ … on which it was clearly stated that the business has premises at addresses in Mumbai and Bangalore. Whether its head office is in Pune is immaterial. Both a telephone check and a site visit disclosed that the Mumbai address was false.”
[19]UTJ Peter Lane amplified these reasons when refusing permission to appeal. He stated that whether the applicant had a connection with some other company operating from those premises is immaterial as far as the Rules are concerned. There was, he observed, no explanation as to why, on the applicant’s story, the person contacted would have answered as he did to the respondent’s representative or why the site visit did not reveal what is claimed to be the position. It is also stated that the grounds missed the point that this is a judicial review, not an appeal.[20]The appellant’s notice was filed in this court on 6 January 2015. A witness statement by Mr Naidu dated 9 January 2015 and an undated statement by Mr Eshwarappa, the Managing Director of GMS Express Ltd, have also been filed. These stated that, at the material time, GMS occupied the ground floor of the premises and Unique Express occupied the first floor. Mr Naidu stated that he was a director of Total Couriers and had a 50% interest in it, and that the building had numerous offices which are mainly courier service companies, including Unique Express’s.

The legal framework

[21]The position of business visitors is dealt with in paragraph 46G of the Immigration Rules (HC 395). The requirements of the category are that the person is genuinely seeking entry as a business visitor for a period not exceeding six months, and intends to attend meetings, conferences and interviews.[22]Paragraph 320(7A) of the Immigration Rules provides that entry clearance or leave to enter should be refused where the applicant has submitted false documents or information in relation to an application. Paragraph 320(7B) provides that where a person has previously breached the UK’s immigration laws by: “ … (d) using deception in an application for entry clearance, leave to enter or remain, whether successful or not, unless the applicant … (iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months previously entry clearance or leave should be refused for a period of 10 years: see paragraph 320(7B)(ii). Paragraph 6 of the Immigration Rules defines “deception” in paragraph 320(7B) as “making false representations or submitting false documents (whether or not material to the application)”. (iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months previously

Discussion

[23]There are two grounds of appeal. The first ground is that both decisions refusing Mr Naidu entry clearance were unlawful because the Secretary of State had failed to prove to the requisite standard that Mr Naidu had used deception. The second ground has two limbs. The first limb is that the decisions were procedurally unfair because of the failure to contact the Pune head office or Mr Naidu about the concerns raised by the investigation and to ascertain the facts. The second limb is that the Secretary of State’s approach to assessing the applications was Wednesbury unreasonable having regard to the consequences of a refusal on the grounds of deception and the prejudice to Mr Naidu’s reputation and business.[24]In respect of ground 1, in Ms Nnamani’s skeleton argument (dated 18 January 2015) she relied on authorities which state that the Entry Clearance Officer and the Secretary of State bear the burden of proving that deception has been used by an applicant: see JC (Part 9, HC 395, Burden of Proof) (China) [2007] UKIAT 00027 at [10] and [13] and Shen (Paper Appeals: Proving Dishonesty) [2014] UKUT 00236 at [25] – [26]. Her written submissions maintain that those cases show that the validity of the decision rests on the decision-maker being able to establish a precedent or jurisdictional fact: see R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74. She argued that, if an application is false in a material way, while that may be prima facie evidence which assists in establishing dishonesty, it is not dispositive and it is open to the person involved to proffer an innocent explanation which, once proffered, shifts the burden back to the Secretary of State.[25]At the hearing, Ms Nnamani accepted that, in the light of this court’s decision in R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784, it was not open for her to argue that the role of the court, in considering a decision about leave by the Secretary of State or her officials, including a decision that deception has been used, is to determine for itself as a “precedent” or “jurisdictional” fact whether deception in fact was used. She accepted that the standard of review is the Wednesbury test. She, however, submitted that, although the burden of proof is the ordinary civil standard, particular care is needed in a case where the finding is deception because of the stigma and the serious consequences of making such a finding.[26]Ms Nnamani submitted that, in relation to the verification checks, there was no evidence regarding who was spoken to at the Mumbai premises and whether the verification officer asked for Mr Naidu by name or asked whether he was known to the people at the address, and there was no attempt to contact the head office or Mr Naidu himself. She also submitted that the second decision does not take account of the various documents provided to demonstrate the appellant’s connection with Total Courier and Cargo Services and the documents showing the link of Unique Express to the Mumbai premises. The consequence of these failings, she submitted, is that the decision that deception was used by Mr Naidu in his applications was unlawful.[27]The Secretary of State’s case was based on three overarching submissions. The first is that the decision challenged, the second refusal of entry clearance, met the requirements of Wednesbury reasonableness. The second is that there was nothing procedurally unfair about the decision-making process. The third is that, in any event Mr Naidu did not challenge the first refusal of entry clearance and the decision that that application was supported by a false document.[28]In relation to ground 1, unlawfulness, it is clear in the light of Giri’s case that the role of the court is to consider whether the Entry Clearance Officer’s decision was Wednesbury unreasonable in the sense that no reasonable decision-maker could have made it, applying the ordinary civil standard of proof: see Giri at [34] – [38]. In my judgment, in the light of the material submitted with the application that was before the Entry Clearance Officer and the result of the verification exercise, it is unarguable that the first decision in the Notice dated 17 December 2013 was Wednesbury unreasonable. The first decision was not challenged, but the second decision in the Notice dated 23 January 2014 refers to and relied on it. As will be seen, that makes the position more complicated.[29]Mr Hansen placed considerable weight on the failure to challenge the first decision that deception had been used. He maintained that, where such a decision has not been challenged, the Secretary of State is entitled to rely on that decision when dealing with a further application. He argued that the structure of the Immigration Rules means that, where a decision that false representations have been made or false documents or information have been submitted in relation to an application for leave under paragraph 320(7A) in the past, the effect of paragraph 320(7B) is that the Entry Clearance Officer is required to refuse a subsequent application within the prohibited period (here 10 years). The Secretary of State’s ability to rely on the earlier decision followed from the fact that paragraph 320(7B) provides that “where the applicant has previously breached the UK’s immigration laws … (d) using deception in an application … (whether successful or not) the application for leave must be refused”. It is also, he maintained, clear from the definition in paragraph 6 of the Immigration Rules of “deception” in paragraph 320(7B) (see [22] above) that this was the position in relation to the second application in Mr Naidu’s case.[30]Mr Hansen acknowledged that the position was what he described as “austere”. At one stage during the hearing he had appeared to accept that, where a second application was made and overwhelming evidence was provided to show that there had in fact been no deception in the first application, the Rules did not require the decision-maker to refuse it. He maintained that there was, however, no overwhelming evidence in this case. Mr Hansen submitted, in relation to the second decision, that “having carried out a site visit and found no evidence of the business at that address”, “the SSHD was unarguably entitled to conclude as she did”: skeleton argument, paragraph 18. The documentary evidence submitted with the second application did not assist Mr Naidu because, as the Entry Clearance Manager stated when maintaining the refusal, Mr Naidu had not explained “why the business letter he submitted for Unique Express contains an address in Mumbai which, when visited, did not appear to be associated with this company”.[31]Ultimately, however, Mr Hansen’s submission was that paragraph 320(7B) of the Rules required the Secretary of State to refuse a second application where a previous application had been refused pursuant to paragraph 320(7A). He argued that a case where overwhelming evidence was provided to show that there had in fact been no deception in the first application could be catered for by the power of the Secretary of State to grant leave outside the Rules. He maintained that the Secretary of State’s residual discretion tempered the “austerity” of the Rules in the way recently described by this court in R (Sayaniya) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department [2016] EWCA Civ 85, although he recognised that in the present case, unlike that case, the notice of decision did not state that it is open to a person to submit a fresh application with full supporting evidence.[32]At this point, I make two observations. The first is that where there is different material before the Entry Clearance Officer the position of the second decision in a case such as this is not on all fours with the first decision. On the facts of this case, it may be that, notwithstanding the documentation supplied with the second application, it would have been open to the Entry Clearance Officer to reach the same conclusion on deception. But in my judgment, leaving aside what is required by paragraph 320(7B) of the Rules, the additional documentation about Unique Express and its links to the Mumbai address on the letterhead affected the factual matrix against which the Entry Clearance Officer had to make his decision on that second occasion. The second observation is that the consequences of a finding that deception has been used are draconian if the position is that such a finding can only be challenged on Wednesbury grounds, and at the time of the relevant decision.[33]My reason for using the term “draconian” is the effect if, at the time of the first decision, it is not possible to say that on the material before the decision-maker the decision was Wednesbury unreasonable. This would be that, even where it is conclusively shown at a later stage that there had in fact been no deception at the time of the first decision under paragraph 320(7A), it would not be open to a court to find that a subsequent finding that paragraph 320(7B) applies is Wednesbury unreasonable. The position Mr Hansen ultimately took would mean that the Secretary of State is thereafter entitled to treat the earlier, unchallengeable but in fact factually mistaken (and possibly fundamentally mistaken) earlier decision, as a correct decision rather than a decision that, while not Wednesbury unreasonable, is factually and possibly fundamentally mistaken. That, in substance, involves reading the definition of “deception” in paragraph 6 of the Rules and thus the word “deception” in paragraph 320(7B) as glossed by qualifying the reference to “false representations” and “false documents” to include findings of such falsity which, although mistaken, are not so flawed as to be Wednesbury unreasonable.[34]I have stated (at [32] above) that on the facts of this case, it may be that, notwithstanding the documentation supplied with the second application and the different factual matrix, it would have been open to the Entry Clearance Officer to reach the same conclusion on deception. In this case, the second decision makes no reference to those documents. It focuses exclusively on the fact that Mr Naidu’s previous application was refused because he submitted a false document. These factors are relevant to the procedural unfairness and Wednesbury unreasonableness limbs of ground 2, to which I now turn.[35]The general principle is that it is for an applicant to provide the evidence to support an application and for the Secretary of State to make a decision on that evidence. In R (Kaur) v Secretary of State for the Home Department [2013] EWHC 1538 (Admin), on which Mr Hansen relied, the Deputy Judge stated at [31] that the selection of documentation to support an application is a matter within the responsibility of the applicant. The Secretary of State is not required to communicate doubts about a document to an applicant or to give him or her a further opportunity to supply more documents or more explanations.[36]In Kaur’s case the claimant’s application for leave to remain as a Tier 1 (General) migrant under the points-based system was refused as a result of a verification report which had failed to verify reference letters said to be from a client and a firm of chartered accountants and a degree certificate from Maharaj University, Kampur. The application was refused on the ground that the Secretary of State was not satisfied that the specified documents had been produced. It was not, however, refused under paragraph 320(7A) or (7B) of the Rules.[37]Mr Hansen also relied on the decision of this court in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517. That case concerned an application for leave to remain as a Tier 4 (General Student) where, as a result of an administrative error for which the applicant had no responsibility (see [24]) the college withdrew its CAS letter. The applicant did not know this had happened, and the Secretary of State did not know that there had been a mistake. But the result was that the applicant did not have the requisite number of points to be granted leave.[38]This court rejected the applicant’s argument that the Secretary of State was required to give her the opportunity to regularise her application. It recognised that the general public law duty which rests on the Secretary of State to act fairly when discharging her functions is not excluded by the fact that an application falls within the points-based system under the Immigration Rules. But it rejected the applicant’s argument that fairness required the Secretary of State to give her the opportunity of regularising her application.[39]EK (Ivory Coast) is now frequently invoked by those representing the Secretary of State. This is because Sales LJ stated (at [31]) that the general public law duty of fairness ought not to be applied in such a manner as to undermine the intended mode of operation of the points-based system in a substantial way. He also stated (at [32]) that, where there is no way in which the Secretary of State can tell whether what appears to be problematic in an application is the result of some administrative error by a third party, it would be an intrusion on “the intended straightforward and relatively automatic operation of decision-making by the Secretary of State under the PBS if in every case of withdrawal of a CAS letter she had to make enquiries and delay making a decision”. Sales LJ referred (at [40]) to the need to strike a fair balance between the public interest in having the points-based system operated in a simple way, and the interest of a particular individual, who may be detrimentally affected by such obligation.[40]It should be noted that EK (Ivory Coast) did not concern a problem for which the Secretary of State was responsible, and she did not know or have reason to know the college had made an administrative error in withdrawing EK’s CAS letter. Where the problem is one of the Secretary of State’s making and within her knowledge, as where it is she who has revoked the sponsoring institution’s licence, it is clear from the decision in Patel (Revocation of Sponsor Licence – Fairness) (India) [2011] UKUT 00211 that, even in a case not involving a finding of deception, the failure to give the individual an opportunity may be unfair. While EK (Ivory Coast) disapproved the breadth of some of what was said in Patel’s case, it did not disapprove of the basic principle stated in it.[41]Although, the issue in this case does not directly concern the points-based system, Mr Hansen argued that the number of applications and the policy in favour of efficient and expeditious decisions means that, when considering the impact of a finding under paragraph 320(7A), the Secretary of State should not be required to go back to an applicant in the position of Mr Naidu. Ms Nnamani recognised that the decision in Kaur’s case meant that the Secretary of State is not obliged to enter into a dialogue with an applicant. She, however, submitted that, in circumstances such as these, once enquiries suggest that a business is not genuine or there is a problem with a document, fairness requires the Secretary of State to engage with the applicant about the evidence before making a decision that deception has been used.[42]The question is thus whether there should be a distinction between the position where a decision is to be refused for non-compliance with the Rules but consideration is not being given to making a finding of deception, and a case in which, as a result of the investigations, the Secretary of State is minded to make a finding of deception. Both Kaur’s case and EK (Ivory Coast) were in the first category.[43]A scenario based on the facts of this case illustrates my concern about the breadth of Mr Hansen’s submission about the effect of a previous unchallenged finding of deception on a later application. I have stated that on the material before the decision-maker, the first decision dated 17 December 2013 was not arguably susceptible to review on Wednesbury grounds. That decision was unassailable on Wednesbury grounds because the material before the decision-maker at that time was evidence which assists in justifying a decision that deception has been used. Given the evidence before the decision-maker then, that decision cannot even be seen to be arguably perverse or irrational.[44]Mr Hansen’s argument involves contending that the fact that the first decision was itself not reviewable is dispositive whatever happens in the future and however compelling the evidence subsequently put before the decision-maker. For example, subsequently indisputable evidence may be provided as to the location within the Mumbai address in which Unique Express’s business was conducted, or that several corporate entities were sharing single premises at the relevant time. There may then be a clear explanation of why the persons spoken to by the verifier did not know about Unique Express. I do not consider that the first decision should be regarded as dispositive in such circumstances. In my judgment it is open to the person involved to proffer an innocent explanation in a further application supported by evidence which was not before the decision-maker at the time of the first decision. Once proffered, that explanation and that evidence must be considered by the Secretary of State when deciding the further application. It must be addressed when considering whether to maintain the decision that deception was used on the earlier occasion. In making the further decision, weight, indeed considerable weight, can properly be given to the first decision.[45]In determining what is required by the duty to act fairly it is relevant to take into account the fact that the decision-maker is considering making a finding of deception or acting on the basis that a previous finding of deception is true. The resolution of what fairness requires in a case where the Secretary of State is minded to make a finding that deception has been used in the past and to refuse an application under paragraph 320(7B) is, as Sales LJ stated in EK (Ivory Coast) (at [40]), an intensely fact-specific matter because the general common law public law duty of fairness operates in a “highly modulated and fact-sensitive way”.[46]It may be that, as Mr Hansen submitted, despite the particular severity of the consequences of a decision to refuse an application under paragraph 320(7B) of the Immigration Rules, the Secretary of State is not bound to communicate doubts about a representation, document or information to an applicant. I recognise the force of his argument that to require her to do this in all cases where she is minded to refuse an application under paragraph 320(7A) or (7B) would significantly increase delays in operating the points-based system. I do not, however, consider it necessarily impractical for her to do so. But I do not consider that it is either necessary or appropriate to decide whether, on the facts of this case, the failure to go back to Mr Naidu was unfair.[47]It is not necessary to decide whether the failure to go back to Mr Naidu was unfair because it is possible to resolve this case by focussing on the Wednesbury unreasonableness limb of the challenge to the second decision. It is, in my judgment, not appropriate to do so in the context of an appeal against a refusal to grant permission to apply for judicial review because of the fact-sensitive nature of the content of fairness because Mr Hansen suggested that, if permission is given, the Secretary of State might wish to place more material before the court. I therefore make no decision on the submissions based on the general common law public law duty of fairness.[48]I turn to the Wednesbury unreasonableness limb of ground 2. How should an Entry Clearance Officer deal with a second application based on different evidence to that furnished where an earlier application has been refused under paragraph 320(7A) of the Rules before making a decision under paragraph 320(7B)? I do not consider that where a decision has previously been made refusing an earlier application under paragraph 320(7A) which, on the material before the decision-maker at the time of that decision is not Wednesbury unreasonable, the decision-maker can simply rely on that decision in an automatic way. I do not consider he can refuse a second application under paragraph 320(7B) whatever additional material is put before him in the second application to show that on the previous occasion there was in fact no deception.[49]In this case the applicant, Mr Naidu, placed considerable additional material before the Entry Clearance Officer when making the second application, in particular the registration certificate dated 30 November 2012 for Unique Express under the Bombay Shops and Establishments Act giving the Vie Parle address. I have stated that, notwithstanding the documentation supplied with the second application, it may have been open to the Entry Clearance Officer to conclude that there was deception in the first application. But the problem in this case is that the notice of decision dated 23 January 2014 refers to none of the additional documentation.[50]The second decision simply reiterates that an earlier decision was made that deception was used in a previous application. It relied on the first decision in an automatic way despite the different evidence. In these circumstances, I consider that the second decision was one that was made without taking account of relevant considerations; that is the documentation relating to the existence of Unique Express, and to the Mumbai premises and its link to Unique Express and Mr Naidu. As such, it was flawed on ordinary public law grounds. I am not able to say that, had the decision-maker considered and taken account of the additional documentation, he would inevitably have reached the same decision as to whether a false document and deception had been used in the first application.[51]I reject the suggestion that the email response by the Entry Clearance Manager that, even considering the additional evidence, she would have maintained her decision about deception, means that this is not an appropriate case for permission or relief. I do not consider that such ex post facto and retrospective justification suffices in the circumstances of this case, which is concerned with a finding that a document was false and deception has been used. There is an analogy with the approach of the courts to reasons given after a decision has been given. In R (Goldsmith) v Wandsworth LBC [2004] EWCA Civ. 1170, at [91] it was stated that “the court has to look at the decision at the time it was made and at the manner in which it was communicated to the person or persons affected by it”. See also the cases summarised in Fordham’s Judicial Review Handbook, 6th ed 62.4.6.[52]The flaw of making a decision without taking account of a relevant consideration is generally regarded as one of the limbs of the Wednesbury principles and so explained. It should, however, not be forgotten that in his rigorous analysis in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 (“the GCHQ case”) Lord Diplock put this flaw under his rubric of “illegality”. However it is classified, the failure to have regard to that material in my judgment took the Entry Clearance Officer and thus the Secretary of State outside the wide ambit of her power. I therefore conclude that the appellant succeeds on ground 2, albeit on its Wednesbury limb and for the reasons I have given rather than the procedural fairness limb, which was the primary way in which the case for him was put in the written and oral submissions. It is thus not necessary to decide whether, had the Entry Clearance Officer considered and taken account of the evidence before him on the second occasion, it would have been reasonable for him to conclude that the document submitted with the first application was a false document and that deception was used in that application. It suffices that it was not inevitable that he would have so concluded. For these reasons, I would allow this appeal.[53]As to the order, section 15 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) deals with the Upper Tribunal’s judicial review jurisdiction. Section 16(8) of the 2007 Act deals with the position where the Tribunal has refused to grant leave to apply for judicial review, the applicant appeals against the refusal, and the Court of Appeal grants permission to appeal. It provides that the Court of Appeal may go on to decide the application for relief: see section 16(8)(c) and R (NB (Algeria)) v SSHD [2012] EWCA Civ 1050 per Lord Neuberger MR at [14].[54]Mr Hansen submitted that, in this case, when granting permission, Burnett LJ did not reserve the substantive application for this court and that the Secretary of State has not therefore filed evidence. He argued that this court should remit the matter to the Upper Tribunal for a hearing of the substantive judicial review and fuller consideration of the issues. He argued that it is evident from the email response by the Entry Clearance Manager that there is material which the Secretary of State could put before a court hearing the matter to justify the decision. He also referred to the expertise of the Immigration and Asylum Chamber of the Upper Tribunal where these applications for judicial review are considered. The email was, however, before the court and he was not able to point to any additional material that would be put before the court.[55]I have closely examined what the Entry Clearance Manager stated about the decision and why, as at the date of her email response, she would have maintained the decisions. I have also taken into account the expertise of the specialist appellate tribunal which would determine the case if remitted. In the context of a decision which has not taken account of relevant material, I do not consider either factor to justify remitting this case. I have therefore concluded that this is a case in which this court should decide the application for relief pursuant to the power given to it by section 16(8)(c) of the 2007 Act. Had the issue been what procedural fairness required in this situation, the case for remission would have been much stronger because of the fact-sensitive nature of the content of the duty to act fairly.[56]The consequence, if my Lord agrees, is that permission will be granted, the decision will be set aside, and the matter remitted to the Secretary of State. She (through her officials) is the primary decision-maker and it is she who should reconsider whether Mr Naidu is to be regarded as barred from applying for entry clearance or leave to enter the United Kingdom for a 10 year period in all the circumstances of his case. Those circumstances include both the material before the Entry Clearance Officer when the second decision was made and the material not before or possibly not before him, such as the “Agreement of Leave and Licence” and the telephone bill. The question before her will be whether the material provided at the time of the second decision and when she remakes her decision suffices to show that deception was not in fact used on the first occasion, even though the original decision that the document containing the covering letter was a false document was one which, at the time of that first decision, could not be said to be Wednesbury unreasonable.

Lord Justice Lloyd Jones:

[57]I agree.

Cited in 1 later judgment