Musarat Bibi, R (on the application of) v The Secretary of State for the Home Department [2025] EWCA Civ 622

[2025] EWCA Civ 622

Case No CA-2023-001881

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION

AND ASYLUM CHAMBER)

Upper Tribunal Judge Kopieczek

JR-2023- LON-000042

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/05/2025

Before

LORD JUSTICE PETER JACKSON

LADY JUSTICE ANDREWS

LORD JUSTICE SNOWDEN

Between

THE KING (on the application of MUSARAT BIBI)Claimant/ Appellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mansoor Fazli (instructed by Chambers of Ahmad Barrister) for Appellant

Hafsah Masood (instructed by Government Legal Department) for Respondent

Hearing Hearing date: 27 March 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 13 th May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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INTRODUCTION

[1]This is an appeal against the refusal by the Upper Tribunal (IAC) (“the UT”) of permission to proceed with a claim for judicial review. The case has a somewhat chequered procedural history. It also provides a graphic illustration of the type of informal case expansion that was deprecated by this Court in R (Talpada) v Secretary of State for the Home Department

[2018] EWCA Civ 841

. In that case Singh LJ made the following observations, with which I respectfully agree:

“[67] …both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation. [68] In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of “evolving” during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed. [69] These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.”

[2]In this case, the ground of appeal which the appellant obtained permission to advance before this Court was never pleaded, though it was raised informally at the time of the oral renewal of the application for permission to proceed with the claim for judicial review. No application was ever made to seek to amend the grounds for judicial review to include it, and yet permission to appeal was sought on the basis that the UT judge had failed to address it.

[3]Moreover, having obtained permission to appeal on this unpleaded ground, around six weeks before the hearing of the appeal, and without seeking permission to do so, the appellant’s legal representatives lodged a new skeleton argument which was clearly intended as a substitute for the skeleton argument used in the application for permission to appeal. That document completely recast the ground of appeal in terms for which permission had never been sought or obtained, and which are conceptually different from and much wider than the ground for which permission was given. They did so notwithstanding the fact that the respondent’s counsel, in her skeleton argument, served many months earlier, had expressly identified that permission had not been granted to raise an argument of that nature.

[4]At the hearing, an informal application was made for permission to serve the substitute skeleton argument, but no application was made to amend the grounds of appeal. We allowed the application to serve the substitute skeleton argument and heard submissions de bene esse, but as the argument developed it became clear that the new case which the appellant wished to raise had wider ramifications which the respondent had not been given a sufficient opportunity to address.

[5]This is not acceptable. Talpada was decided 7 years ago, and although it is a decision that should be well-known by now to those who practice in this field, for some reason it has never been formally reported. It appears that the time has come to reinforce the message conveyed by Singh LJ. For the reasons which I shall explain, I would refuse to allow the appellant to expand her grounds, and I would dismiss this appeal on the ground for which permission to appeal was given.

FACTUAL BACKGROUND

[6]On 11 January 2023 the appellant, who is a national of Pakistan, issued proceedings in the UT for judicial review of the respondent’s decision dated 26 October 2022 refusing her application for entry clearance (“EC”) as a visitor. The appellant had made two previous applications for EC as a visitor, which were refused on 15 July 2008 and 7 March 2010 respectively.

[7]The impugned decision was taken upon reconsideration of an earlier decision, dated 29 November 2021, to refuse a third application for EC as a visitor, which was made by the appellant on 11 July 2021. That application was initially refused on 15 July 2021. The October 2022 decision was therefore the third time that the respondent (“the Secretary of State”) had considered the July 2021 application and representations made about it on behalf of the appellant and had refused it.

[8]In her application form the appellant stated that she wished to visit one of her sons who was living in the UK, that she would stay with him, and that she would return to Pakistan “by end of April”. She stated that she was unemployed and that she received rental income from commercial property which she owned of PKR 40,000 (£175) per month. Her outgoings were PKR 30,000 (£128) per month. One of her sons in the UK regularly sent her money to help with her support in Pakistan. She planned to spend around £1,300 on her trip. She had other assets, including savings of around £10,000. Her sponsors, namely, her two sons who live in the UK, would provide her with accommodation and pay for her maintenance whilst she was in the UK.

[9]The declaration at the end of the application form stated:

“By sending this application, you confirm that to the best of your knowledge and belief the following is correct: • The information relating to the application • The supporting evidence I understand that if false information is given, the application can be refused…”

It was common ground that “false” in this context means knowingly false, i.e. dishonest, see AA (Nigeria) v Secretary of State for the Home Department

[2010] EWCA Civ 773

;

[2011] 1 WLR 564

, especially at [43]. • The information relating to the application • The supporting evidence

[10]The Secretary of State refused the application on the grounds that the appellant did not meet the genuine visitor requirement in Appendix V of the Immigration Rules (set out later in this judgment). One of the matters the decision maker took into account was that, when asked on the visa application form if she had ever been refused a visa for any country, including the UK, the appellant answered “no”.

[11]In the refusal letter of 26 October 2022 the decision maker stated that:

“When asked on your visa application form if you have ever been refused a visa for any country including the UK, you have answered no. However, our records show that you were refused a visa, with Right of Appeal, on 07/03/2010 (ABDH/384740 refers). This is compounded by the documents you have submitted, which do not mention this previous refusal either. This type of discrepancy undermines the credibility of the information provided in your application. Therefore, I am not satisfied that your intention to visit the UK is genuine and that you intend to leave the UK after a limited period.”

[12]This was not the only basis upon which the application was refused. The decision letter went on to refer in separate paragraphs to additional matters which led to the decision maker not being satisfied that the appellant had accurately presented her circumstances or intentions in wishing to enter the UK. These included the following:• You have submitted family certificates. I note this includes your sons who currently reside in the UK and your spouse who you are separated from. Therefore I am not satisfied, on the balance of probabilities, the documents you have submitted demonstrate the whereabouts of any immediate family members in your country of residence. Given this, I am not satisfied, on the balance of probabilities, the documents you have submitted demonstrate substantial family ties to ensure that you would leave the UK at the end of your visit.

• Whilst I acknowledge you have submitted documents and an explanation for the funds in your personal bank, I have to consider that the sale of jewellery and the subsequent funds have been deposited solely to facilitate this application. I consider the act of liquidating substantial personal assets in preparation for this trip to be significantly disproportionate to [a] visit under the circumstances you describe. On the documents before me, I am not satisfied that the balance in your account reflects your usual financial position or that your personal circumstances are as you have indicated. Therefore, I am not satisfied the documents you have submitted demonstrate your circumstances are as you have stated. This undermines the credibility of the information provided in your application and leads me to doubt the intentions of your visit.

[13]In the concluding paragraph, the decision maker summarised the position as follows:• I have considered the documents and information submitted in your application, and on the balance of probabilities, I am not satisfied that you have accurately presented your circumstances or intentions in wishing to enter the United Kingdom. This undermines the credibility of your application to the extent that I am not satisfied that you are genuinely seeking entry as a visitor or intend to leave the UK at the end of your visit. Your application has been refused under paragraph V4.2(a)(c) of the Immigration Rules.

[14]The letter under cover of which the decision was communicated to the appellant stated that:

“any future UK visa applications you make will be considered on their individual merits, however you are likely to be refused unless the circumstances of your application change.”

The same phrase is found in the covering letters which accompanied the two earlier decisions to refuse the application. Ms Masood, who appeared on behalf of the Secretary of State, told us on instructions that this was a standard form of wording, and that it was designed to dissuade the making of repeat applications on identical grounds.

PROCEDURAL HISTORY

[15]The 15 July 2021 decision refused the application on grounds which included an assertion that the rent receipts provided by the appellant were only for the period from January to June 2020 and did not show her current circumstances. The decision maker also noted that there were what they described as “a number of unexplained large deposits into [the appellant’s bank account] on 15/06/21 and 18/06/21 of 700,000 PKR (£3,178.34) and 300,000 PKR (£1,362.15) respectively.” These were said to be inconsistent with her stated income and the account history and it was alleged that there was no information to explain the origin of this money.

[16]The appellant commenced proceedings for judicial review of the July 2021 decision without waiting the usual 14 days for a response to the pre-action protocol letter, which was received by the Secretary of State on 11 October 2021. The claim was issued on 13 October 2021, two days before the expiry of the three-month period for claiming judicial review. One of the complaints was that the decision maker was wrong to suggest that the appellant had failed to provide evidence as to the source of the large deposits because, among other matters, the appellant had provided a receipt for the sale of gold jewellery dated 18 June 2021, and a valuation certificate for jewellery dated 13 June 2021. It appears from the subsequent decision of UT Judge Blum (see [19] below) that documents that had not been before the original decision maker, in particular rent receipts for a longer period from 5 January 2020 to 7 June 2021, were also submitted with that claim.

[17]On 19 October 2021, the Secretary of State wrote to the appellant’s legal representatives in response to the pre-action protocol letter stating that:

“I have reviewed the refusal notice and the decision to refuse is withdrawn in favour of a reconsideration.”

Despite that indication the appellant did not withdraw the claim for judicial review, and the Secretary of State acknowledged service explaining that the claim had become academic because she was going to reconsider the visa application. In the event, UT Judge Gill refused the claim for permission to bring judicial review of the July 2021 decision and gave directions in respect of any claim by the respondent for her costs. By that time, the November 2021 decision had been made.

[18]Unfortunately, the decision maker on that occasion overlooked the fact that the rental receipt slips for the period up to 7 June 2021 had now been provided, and one of the grounds on which the application was refused was an alleged absence of evidence in relation to the receipt of rent after June 2020. In addition, one of the paragraphs of that decision letter read as follows:

“You have declared that you spend PKR 30,000 (£128) per month. You have stated that you are supported by your son in the United Kingdom and provided remittance slips demonstrating that you regularly receive funds from him. To support your application you have provided your personal bank statement. You have stated that you intend to personally spend £1,300 on your visit and have attributed your savings to cash raised by the sale of jewellery. I note that the opening balance of your account on 01/05/2021 was PKR 350 (£1.50). From the documents you have submitted it would appear that you have disposed of assets in order to fund the personal costs of your visit. I am not satisfied that the proposed trip is proportionate to your income and finances and is therefore credible. I am therefore not satisfied that you are genuinely seeking entry to the UK as a visitor for a limited period.

(c) ”

[19]Having been refused permission on the papers, following a contested oral renewal hearing the appellant obtained permission from the UT (UT Judge Blum) to proceed with a claim for judicial review of the November 2021 decision on two grounds. The primary ground on which permission to proceed was granted was the fact that the decision maker had failed to take into account the rent receipts for the period from 5 January 2020 to 7 June 2021. UT Judge Blum then said this:

“It is additionally arguable that the inference drawn by the respondent that the applicant disposed of assets (jewellery) in order to fund the personal costs of her visit had an ambiguous factual basis (the applicant’s “statement of purpose” did not expressly state that she sold her jewellery in order to fund her trip) and that, in these particular circumstances, there was procedural unfairness in the respondent not making his or her concerns known to the applicant, thereby depriving her of the opportunity of engaging with the concern.”

That complaint was not raised in the grounds for judicial review, nor referred to anywhere in the appellant’s skeleton argument. I can only assume that it was raised at the oral hearing.

[20]There was a pleaded complaint of unfairness, but that was on the basis that “the respondent has acted unfairly by using the opportunity of consideration to improve the reason (sic) instead of conducting an objective reconsideration.” The complaint raised under that heading was that neither of the grounds of refusal relied upon in the November 2021 decision had been raised in the July refusal letter, and it was suggested that it was (substantively) unfair of the Secretary of State to raise new grounds for refusal. Nothing was said about procedural unfairness or having an opportunity to respond to concerns about the sale of the jewellery. That complaint of unfairness, which did not obtain permission to proceed, was very similar to the primary basis of complaint raised in the challenge to the October 2022 decision.

[21]The parties settled those proceedings on terms recorded in a Consent Order signed on 3 October and sealed on 4 October 2022. This provided as follows:

“UPON the permission granted by the Upper Tribunal dated 8 August 2022, following the oral permission hearing, which took place on 19 July 2022; AND UPON the Respondent agreeing to reconsider the decision dated 29 November 2021 and to make a new decision within 2 months from the date of the sealing of the consent Order absent special circumstances BY CONSENT, IT IS ORDERED THAT 1. The substantive hearing set on 23 November 2022 is to be vacated; 2. The Applicant has leave to withdraw this judicial review application; 3. The Respondent agrees to pay the Applicant’s reasonable costs in relation to the judicial review claim, to be assessed if not agreed.”

BY CONSENT, IT IS ORDERED THAT

[22]On 7 October 2022 an email was sent on behalf of the Secretary of State to the appellant’s legal representatives notifying them that “we are now in the process of reconsidering your application”. It requested “all recent documentation in support of your (applicant’s) application” and “information of any possible change of circumstances since applicant applied,” setting a deadline for reply. The letter ended:

“if we do not hear from you by the date mentioned above, we will make a decision on your application based on the information we already hold. Please note that this may result in refusal of your application.”

[23]The purpose of the email of 7 October 2022 was to give the appellant the opportunity to inform the Secretary of State of any material change of circumstances since her original application was made, and to submit fresh documents so that the Secretary of State could assess her current circumstances. It was self-evidently not a “minded to refuse” letter which was designed to put the appellant on notice of any concerns about her application and to give her the opportunity to respond to them.

[24]In their response, which was sent to the Secretary of State on 21 October 2022, the appellant’s legal representatives said this:

“We first of all take this opportunity to state on behalf of our client that you have not received a fresh application. The current reconsideration is subject to the consent order dated 3-10-2022 passed in Judicial Review application no JR-2022-LON-000290. The consent order clearly states that you would review the refusal letter dated 29-11-2011. It would be misleading and out of the vires of the consent order to treat this as a completely fresh application whereby the ECO could choose to start finding new reasons for maintaining the decision dated 29-11-2021.”

[25]They then quoted a number of authorities which they contended supported that position. They added:

“In addition, and without prejudice to the above-said, after having taken instructions from our client, we can confirm that there is no adverse change in the circumstances of our client. And therefore, we invite you to proceed on the basis that the circumstances are the same as at the time of the decision of the refusal letter dated 29 November 2021.”

The letter annexed a short witness statement from the appellant dated 10 October 2022 in which she stated that there had been no change of circumstances, that her son would pay all her expenses, and that she relied on the observations of UT Judge Blum when granting permission to proceed with the claim for judicial review of the 29 November 2021 decision. The letter ended by saying:

“Our client would be willing to address any enquiries/issues and clarifications, should there be any. In such a case, we remain available to assist further.”

[26]The decision letter refusing the visa application following further reconsideration was dated 26 October 2022 and I have already referred to its terms at [11] to [13] above.

[27]The claim for judicial review of the October 2022 decision raised five grounds. I need not refer to Grounds 2, 4 or 5. Ground 1 was that it was “fundamentally unfair” of the Secretary of State to raise three grounds for refusal which it was alleged she had not raised on the two previous occasions, namely(1) the presence of the family members of the applicant in the UK

(2) the allegation of non-disclosure of the previous refusal and

(3) the allegation of selling jewellery to fund the trip, which it was said had not been raised at all in the previous considerations of the visa application (despite the contents of the refusal letter of 29 November and Ground 3, set out at [29] below). It was alleged that raising those new grounds now amounted to an “unfair litigation advantage” on the basis that:

“if the respondent had not withdrawn the first refusal letter or had not agreed to reconsider through the consent order dated 4-10-22 the applicant would have obtained a judicial determination of the facts which would have prevented the respondent from raising the instant issues.”

[28]Ground 1 did not complain that it was procedurally unfair of the Secretary of State to raise any of these “new” points in the decision without first giving the appellant forewarning and an opportunity to comment. The complaint was, in essence, that in the light of the terms of the recitals to the consent order, the Secretary of State was confined to reconsidering the grounds on which she had already refused the application in November 2021.

[29]By contrast, Ground 3 complains of procedural unfairness in the “repetition of old reasons despite the grant of permission in JR”. It was put in these terms:

“The repeating of the reasons concerning the jewellery by the respondent was fundamentally unfair and possibly an abuse of process because on the very same reason, the upper tribunal had granted permission on the 8th August 2022. However the respondent despite the grant of the said permission by the upper tribunal and despite the recording of the grant of permission in the consent order, completely ignored the said ground and repeated the reason/allegation that the applicant sold the jewellery to fund the proposed trip. It is pointed out that the respondent did not raise the said issue again with the applicant when the respondent requested further information from the applicant on the 7 October 2022. Instead the respondent simply repeated the same reason in the latest refusal letter which is under challenge. It is further contended that the above-said conduct of the respondent whereby the respondent gave no notice of her concerns regarding the same known to the applicant nor did the respondent give an opportunity to the applicant to address the said issue is unlawful unfair and in violation of the principles settled in ASHISH BALAJIGARI v SSHD [2019] EWCA Civ 673. [2019]1 WLR 4647. ” [Emphasis added, capitalisation as in the original].

[30]An Acknowledgment of Service and Summary Grounds of Defence was filed responding in some detail to each of the five grounds for judicial review.

(c) the Secretary of State asserted that:

“in all fairness and given a number of previous reconsiderations and the contents of the permission grant order dated 8 August 2022, on 7 October 2022 the SSHD offered a fair opportunity to the Applicant to submit any further evidence or submissions she wished to rely upon in support of her EC application on 11 July 2021. The Applicant did not seek to submit any further evidence. Instead, she simply filed a response dated 21 October 2022 via her legal representatives stating that a fresh EC application was not being made and therefore she would not be submitting any new documentation. In addition it was stated that there was no change in the Applicant’s circumstances and that the reconsideration should be completed on the documents submitted at the time of her original application.”

The letter of 21 October 2022 was annexed to the Summary Grounds of Defence.

[31]In answer to Ground 1, at paragraph 11 (h) and (i), the Secretary of State pointed out that two of the matters which were supposedly “new” had in fact been considered in the 29 November 2021 decision, namely, the presence of family members in the UK and the sale of the jewellery to fund the trip. Indeed, the point about the jewellery had even been referred to specifically in UT Judge Blum’s order. It was submitted that the Secretary of State was entitled to rely on the failure to declare the previous entry clearance refusal decisions, and it was pointed out that there was a power to impose a 10 year ban on submitting further applications because of that non-disclosure, although it had not been exercised. The Secretary of State contended that since she had agreed to withdraw the earlier decision and reconsider the matter afresh, the Applicant should not have expected the decision maker to limit consideration of the application to the reasons raised in the earlier refusal decision. She stated that an objective, lawful and fair reconsideration was made.

[32]In answer to Ground 3, in paragraph 11 (m) (n) and (o) the Secretary of State pointed out that this complaint was factually at odds with the complaint in Ground 1 that the point about the sale of the jewellery had never been raised before. In this Ground it was admitted that it had. It was submitted that the Secretary of State was entitled to view the sale of the jewellery and the subsequent funds as having been deposited solely to facilitate the entry clearance application of July 2021. The appellant could have used the opportunity she was given after the settlement of the previous claim for judicial review to address the Secretary of State’s previous concern in respect of the sale of the jewellery but chose not to engage with this earlier reason for refusal. It was asserted that “a fair process has been followed in accordance with Balajigari v SSHD

[2019] EWCA Civ 673

.”

[33]Finally, in paragraph 13 the Secretary of State said this: “However, in case the Judge would think that the SSHD has failed to expressly state or consider anything during the decision making process or should have omitted any of her reasons for refusal, the SSHD respectfully asks for the Upper Tribunal to consider whether the outcome for the Applicant would have been substantially different if the conduct complained of had not occurred (see s.16(3C) of the Tribunals, Courts and Enforcement Act 2007).” (“the 2007 Act”). [Emphasis in the original].

[34]Section 16 of the 2007 Act provides, so far as is material:

“(3C) In cases arising under the law of England and Wales, when considering whether to grant permission to make the application, the tribunal— (a) may of its own initiative consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the respondent asks it to do so. (3D) In subsection (3C) “the conduct complained of” means the conduct (or alleged conduct) of the respondent that the applicant claims justifies the tribunal in granting relief. (3E) If, on considering the question mentioned in subsection (3C)(a) and (b), it appears to the tribunal to be highly likely that the outcome for the applicant would not have been substantially different, the tribunal must refuse to grant permission. (3F) The tribunal may disregard the requirement in subsection (3E) if it considers that it is appropriate to do so for reasons of exceptional public interest. (3G) If the tribunal grants permission in reliance on subsection (3F), the tribunal must certify that the condition in subsection (3F) is satisfied.” [Emphasis added].

(a) may of its own initiative consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the respondent asks it to do so.

[35]Permission to proceed with the claim for judicial review was refused on the papers by UT Judge Frances on 22 June 2023. She decided that the Secretary of State’s decision was not arguably unfair, unlawful, irrational or contrary to guidance on any of the grounds. She said, among other things:

“The burden is on the applicant to satisfy the immigration rules. The applicant was represented and was well aware from the previous refusals that the respondent did not accept she was a genuine visitor who intended to leave the UK at the end of her visit…. There was no arguable unfairness in the respondent’s reconsideration of the decision to refuse entry clearance.”

She did not need to, and therefore did not address section 16(3C) of the 2007 Act.

[36]The application was renewed to an oral hearing before UT Judge Kopieczek. In the grounds for renewal it was stated, in terms:

“the Applicant repeats the grounds raised in the paper-based application to file a judicial review.”

[37]The first three paragraphs of that document contain a response to paragraph 11(n) of the Summary Grounds of Defence – which was one of the paragraphs answering Ground 3. There was then a heading “Unfairness – breach of Natural Justice – Alleged previous refusal”. Under that heading it was stated at paragraph 4:

“It is contended that it was particularly unfair to raise an allegation of previous refusal because Applicant was not on notice that 1 – this was no live issue in previous refusals because the Respondent had not raised this in previous considerations (on application refusal, pre actions stages, Consent order stage ) 2 – a long period of time passed, the Applicant could not remember as to what was or was not said in a Visa form filled in several years ago. Hence, it amounted to procedural fairness (sic) as settled in Ashish Balajigari v SSHD [2019] EWCA Civ 673. Lastly, that there was no evidence submitted with AOS, or otherwise to the UT, nor was shared with Applicant, that showed as a matter of fact, that there was a previous refusal and that Applicant did fail to dishonestly mention it.”

That is the first mention of any complaint that it was procedurally unfair for the Secretary of State to have relied on the failure to disclose the earlier refusal(s) of the appellant’s visa applications. However, and consistently with the statement that the appellant was renewing her existing grounds, no application was made for permission to amend the grounds for judicial review.

[38]In his skeleton argument in support of the renewed application the appellant’s previous counsel submitted, as per Ground 1, that the introduction of three new issues in the refusal letter was unfair in and of itself, and that there was a breach of the Consent Order which required reconsideration of the November 2021 refusal letter which only included two reasons. He then added, under a heading “no notice to the Applicant”, the following:

“9. An email from the respondent dated 7 October 2022 made no reference to previous issues (see page 101). Therefore the applicant was not on notice while submitting evidence and the statement dated 10th October 2022 (see page 108) regarding the new issues, including the old refusal letter. Furthermore, there is no evidence of any dishonesty regarding her failure to mention the previous refusal letter.” (Emphasis as in the original).

[39]On the face of it, that is a specific argument that in the letter that was sent on 7 October 2022 the appellant was not put on notice of the “new” issues “including the old refusal letter” (i.e. all three issues) and that she was not put on notice that the Secretary of State might seek to rely on previous reasons for refusal. In other words, it was being alleged that the letter of 7 October 2022 did not suffice to alert the appellant to the possibility that either “new” or “old” points might be taken against her. This therefore appears to be also part of the response to the Secretary of State’s point in answer to Ground 3 referred to at [32] above. Then it was said that there was no evidence of dishonesty regarding the non-disclosure of the previous refusal letter. However, dishonesty had not been alleged. That appears to be a response to the reference in the Summary Grounds of Defence to the potential 10-year ban. In context, the “old refusal letter” and “previous refusal letter” must be a reference to the refusal of entry clearance, but this is not treated any differently from the other reasons that were given for refusal.

[40]At that stage, therefore, the appellant was raising an argument that the letter of 7 October 2022 did not alert her or her legal representatives to the possibility that any reasons for refusal (new or old) might be relied on besides the ones relied on in the 29 November 2021 decision. In consequence, nothing was done to disabuse them of the impression that the reconsideration of the November 2021 decision would be confined to the reasons for refusal given in that letter (which she still contended was the right impression because that was what the Consent Order required).

[41]Following an oral hearing, at which both parties were legally represented, Judge Kopieczek’s decision refusing permission to proceed was promulgated on 20 September 2023. He dealt comprehensively (and, in my judgment, impeccably) with each of the pleaded grounds for judicial review. He said there was no arguable merit in any of them. In respect of Ground 1 he said that: “the present decision dated 26 October 2022 is avowedly a reconsideration of the previous decision to refuse entry clearance as a visitor. The respondent did not represent, and the applicant had no reason to suppose, that the decision would not potentially include additional reasons for refusal that had not previously been raised.” (He went on to accept that there was force in the Secretary of State’s point that there was a direct conflict between Grounds 1 and 3 on the factual issue about whether the sale of the jewellery was a new or old point).

[42]The judge then said that another ground alleging a violation of the principle of finality of litigation had no arguable merit because the Secretary of State’s decision was a reconsideration of the earlier refusal, which is what was expected and which was the subject of the Consent Order. Likewise, he dismissed the complaint that there had been any violation of the terms of the Consent Order, on the basis that the Consent Order required reconsideration of the earlier decision and that was what was done. He dealt at paragraph 6 with Ground 3, on the basis that UT Judge Blum had not decided that the reason for refusal was arguably unlawful in itself, but only that the point raised [at that time] was one of procedural fairness. He concluded that:

“the respondent was entitled to come to the view that she did on the reconsideration of the application for entry clearance for the reasons she gave.”

[43]In the light of that conclusion, UT Judge Kopieczek understandably did not go on to consider section 16(3C) of the 2007 Act.

[44]UT Judge Kopieczek made no mention in his determination of the specific point made in paragraph 4 of the renewed grounds and echoed in paragraph 9 of the skeleton argument. No criticism can be attached to him for that. Even if it could be treated as a specific complaint of procedural unfairness relating to a lack of notice that the Secretary of State was going to rely on the failure to disclose the previous refusal of a visitor’s visa, the point was not pleaded and technically, unless the grounds were amended, it was not open to the appellant to advance it.

[45]When an application for permission to proceed is refused on the papers and renewed to an oral hearing, the renewed grounds are not an opportunity to raise new points or to amend the grounds for judicial review without making an application for permission to do so. The same applies to counsel’s skeleton arguments. Moreover, because of the unorthodox manner in which this complaint emerged, the Secretary of State had had no opportunity to address it in the Summary Grounds of Defence. The respondent’s skeleton argument for the oral renewal hearing is not in the bundle, so we do not know what, if anything, that said about the alleged procedural unfairness.

[46]Despite this, a complaint that the UT judge had failed to adequately consider the point about procedural unfairness was put at the forefront of the grounds for seeking permission to appeal to this court against the refusal of permission to proceed with the claim for judicial review. In paragraph 10 it was put in these terms:

“In the application for reconsideration at an oral hearing, the appellant raised a ground regarding the alleged non-disclosure of the previous refusal letters, namely, that the respondent breached the principles of natural justice by not providing notice to the appellant, as these refusal letters were never mentioned to the appellant during the issuance of the initial refusal letters dated 15 July 2021 and 29 November 2021. Furthermore, when seeking additional information via email on the 7October 2022, the respondent did not notify the appellant of these refusal letters or invite her to address these concerns or the new reason for refusal. The appellant could not therefore have been on notice of these refusal letters.”

The grounds stated (reflecting what is said in the appellant’s latest witness statement) that it was the appellant’s contention that she did not remember the refusal letters, and stated that there “was no allegation of dishonesty because those refusals were several years old”.

[47]The previously pleaded allegation of procedural unfairness in failing to adopt a Balajigari type process in respect of the inference drawn about the reasons for the sale of the jewellery (Ground 3) was dropped completely in favour of a complaint that the decision maker could not draw an inference about the reason for the sale because the appellant had stated in her witness statement of 10 October 2022 that she did not sell jewellery for the purpose of funding the trip, and it was alleged that in the July 2021 refusal letter it had been accepted that the trip was funded by her son in the UK. It was alleged that the decision maker must have failed to have regard to the witness statement.

[48]The skeleton argument for the permission application addresses the point about lack of notice of reliance on the previous visa refusals under the heading “No notice to the Applicant of the new issues particularly the allegation of concealment of the previous refusal letters”. It first points out at paragraph 13 that the 7 October 2022 letter made no mention of the previous refusal letters and therefore “the Appellant was not on notice that she had to reply to a new allegation of non-disclosure of previous refusal letters”. In paragraph 14 the point is made that the Secretary of State had not raised this matter as an issue previously, and therefore the Appellant had no reason to believe that whilst responding to the letter of 7 October 2022 she had to respond to anything other than the reasons for refusal which had been relied on in the 29 November 2021 letter.

[49]The Secretary of State did not serve a statement under PD52C paragraph 19, which would have been an opportunity to point out that what had now become the principal ground on which permission to appeal was being sought had never been formally pleaded (nor even the subject of an application to amend the pleadings) and was therefore not a ground on which UT Judge Kopieczek had been asked to grant permission to proceed with the claim for judicial review.

[50]On 18 April 2024 permission to appeal to this Court against the refusal of permission to proceed with judicial review was granted by the single

judge on the sole ground that it was arguable that the decision was procedurally unfair because:

“the appellant was not put on notice that her failure to refer to the refusal of a visa in 2010 might be taken into account and so was not given an opportunity to comment on the point”

. Permission was refused on all other grounds. In the reasons for the permission decision it was explained that there was no question of the respondent being barred from raising new issues in the refusal letter of 26 October 2022; the order for reconsideration did not preclude the respondent from taking additional issues into account, and there was no substance in the allegation that the respondent failed to consider the appellant’s witness statement of 10 October 2022 which in any event “did not add anything important.” However, the single

judge explained that:

“In contrast the complaint that the appellant was not warned that her failure to refer to the refusal of a visa in 2010 might be taken into account seems to me to have sufficient substance to warrant the grant of permission to appeal.”

[51]That means that none of the other aspects of the UT judge’s decision is open to challenge. The terms of the order shed no light on whether the single judge was conscious that the ground for which permission to appeal was granted was not one of the pleaded grounds for judicial review.

[52]After permission was granted, the Secretary of State served a skeleton argument dated 24 June 2024 which responded in substance to the way in which the ground had then been formulated. In paragraph 30 of the skeleton argument Ms Masood said this:

“It is not suggested (or at least, the Appellant does not have permission to argue) that the Respondent should have given her advance notice and an opportunity to [address] his concerns generally about the Appellant’s intentions and ability to meet the genuine visitor requirements. Rather, the particular complaint is that “…during the reconsideration process… the Respondent in their email dated 7 October 2022 made no reference to the previous refusal letter… Therefore, the Appellant was not on notice that she had to reply to a new allegation of non-disclosure of previous refusal letters, while submitting evidence and the statement dated 10 October 2022.” [Emphasis in the original.]

[53]In paragraph 31 Ms Masood noted that the purpose of the letter of 7 October 2022 was not to give the Appellant notice of the Secretary of State’s concerns and an opportunity to respond, but rather, to give her an opportunity to provide updated evidence so that the reconsideration could be made on the basis of current circumstances. It was then denied that procedural fairness required the Secretary of State to put the Appellant on notice, and it was submitted that this was far from the type of case in which such a duty had previously been found to exist. Ms Masood made four broad points, namely: i) The Secretary of State did not refuse the application on suitability grounds or otherwise allege fraud or dishonesty (which would have engaged the separate provisions of Part 9 of the Immigration Rules). Rather, the failure to refer to the previous refusal of a visa went to the appellant’s credibility and was part of the overall assessment of whether the genuine visitor requirement was met. The principles of procedural fairness do not compel the decision maker to communicate evolving concerns about truthfulness, see R (Taj) v Secretary of State for the Home Department

[2021] EWCA Civ 19

;

[2021] 1 WLR 1850

, (“Taj”) particularly at [73]. ii) This particular allegation did not have far-reaching or serious consequences in the same way as a decision which would remove rights or subject a person to the serious consequences of being an overstayer; cf. Balajigari. iii) It would have been clear to the appellant from the application form that giving false or incorrect information could lead to the refusal of her application, and iv) In any case (and despite what was said in the covering letter) the appellant has the opportunity to make a fresh application addressing any concerns raised by the Secretary of State in the context of previous refusals. If she were to provide an explanation for the failure to mention the previous refusals in 2008 and 2010 the Secretary of State would consider it.

[54]That was how matters stood until around 6 weeks before the hearing. However, on 7 February 2025 the appellant filed and served a document which it is accepted was inaccurately entitled “Appellant’s Replacement Skeleton Argument.” An appellant is entitled to rely upon the skeleton argument for permission to appeal or to file an “appeal skeleton argument” within the timetable set in the practice directions: PD 52C para 31(1)(3). However, as the notes to CPR 52.2 at 52.2.3 make clear, a replacement skeleton argument is an updated skeleton argument which contains cross-references to documents in the bundles. If a party wishes to file a supplementary skeleton argument, particularly if they wish to substitute a new document for an earlier skeleton argument, the permission of the court is required.

[55]In the document in question, counsel newly instructed for the appellant reframed the ground of appeal in these terms: “prior to making a finding of bad faith and/or a finding of acting disreputably the respondent failed to invite the appellant to respond either in an interview or in writing to her failure to declare her 2010 visa refusal in her application form and/or to refer to that fact in the materials submitted in support of her application”. [Emphasis added]. It was therefore now contended (contrary to the grounds of appeal that had been filed with this court – see [46] above) that in the decision letter the decision maker had made a finding of bad faith or disreputable conduct in that they were questioning the sincerity and honesty of the appellant’s intentions, and thus accusing her of acting disreputably. It was submitted that the allegation in the final paragraph of the decision letter that she had “not accurately presented her circumstances or intentions” was at the very least an accusation of disreputable conduct. That way of putting the case was completely new, and went well beyond the formulation of the ground of appeal in the order which granted permission.

[56]Unfortunately, as Ms Masood explained, her instructing solicitor assumed from its title that the “Replacement Skeleton Argument” was simply an annotated version of the original skeleton argument and therefore did not read it at the time when it was served. The Secretary of State’s legal team only appreciated that the argument was being put differently when Ms Masood herself began to prepare for the hearing. Ms Masood opposed the application to file the supplementary skeleton argument, but she did not suggest that the Secretary of State was prejudiced save to the extent that she might have wished to file evidence in response to the new case. The court took the pragmatic approach of granting Mr Fazli’s oral application for permission to rely on the latest iteration of the skeleton argument, and hearing how both counsel developed the arguments orally, but still no application was made to us to amend the ground of appeal for which permission had been granted.

[57]There was a further procedural issue which emerged at the hearing. Ms Masood made it clear that the Secretary of State wished to maintain the fallback position pleaded in her Summary Grounds of Defence relying on the provisions of section 16(3C) of the 2007 Act. However, she very fairly drew our attention to the fact that there was no Respondent’s Notice seeking to uphold the decision to refuse permission for different or additional reasons. The point had not been referred to in the skeleton argument which Ms Masood had settled in June 2024. However, it had been raised fairly and squarely in the Summary Grounds of Defence (see [33] above) and it was therefore a mandatory consideration for any judge dealing with the application for permission to proceed. If the UT judge had taken the view that the ground with which we are concerned crossed the permission threshold, he would have been obliged to consider whether the outcome for the appellant would have been substantially different if the Secretary of State had not behaved in the manner complained of, namely, if she had put the appellant on notice that the failure to mention the previous refusal of a visa might be held against her.

[58]The 2007 Act makes it clear that this must be addressed at the permission stage. Similar considerations may arise at a later juncture if the substantive claim for judicial review succeeds and the UT is considering what, if any, relief should be granted. Section 15(5A) of the 2007 Act provides that in cases arising under the law of England and Wales, subsections (2A) and (2B) of section 31 of the Senior Courts Act 1981 apply to the UT when deciding whether to grant relief in an application for judicial review in the same way as they would apply to the High Court. However, once one gets to that stage the scenario is different. By then it will have been established after hearing full argument that there was indeed a public law error.

[59]Ms Masood submitted that irrespective of the merits of the ground for which permission was granted, it was highly likely that the outcome for the appellant would not have been substantially different if the conduct complained of had not occurred, i.e. if the appellant had been afforded an opportunity to provide her explanation for the non-disclosure/inaccurate statement in the application form before the impugned decision was taken.

[60]We investigated with Mr Fazli whether the Secretary of State’s reliance on this argument created any prejudice to the appellant. On the face of it, it seemed to be possible to address it; the evidence that the UT had before it when considering the issue of permission to proceed is limited, and the key document for assessing what the outcome would have been on the counterfactual basis raised by the 2007 Act is the decision letter itself. Mr Fazli said, quite understandably, that he was not expecting to have to deal with this point. However, he did not seek to persuade the court that we should refuse to allow it to be raised. In those circumstances we permitted the Secretary of State to rely on this as an additional or alternative ground for upholding the UT judge’s decision. LEGAL FRAMEWORK A. The Immigration Rules

[61]Appendix V to the Immigration Rules provides, so far as is relevant:

“Immigration Rules Appendix V: Visitor This route is for a person who wants to visit the UK for a temporary period, (usually for up to 6 months) for purposes such as tourism, visiting friends or family, carrying out a business activity, or undertaking a short course of study. Each Visitor must meet the requirements of the Visitor route, even if they are travelling in, for example, a family group, a tour group or a school party. A visa national as set out in Appendix Visitor: Visa National list must obtain entry clearance as a Visitor (a visit visa) before arrival in the UK… Suitability requirements for all Visitors V 3.1 The applicant must not fall for refusal under Part 9: grounds for refusal. V 3.2 If applying for permission to stay the applicant must not be: a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or b) on immigration bail. Eligibility requirements for Visitors V 4.1 The decision maker must be satisfied that the applicant ... meets all the eligibility requirements in V 4.2 to V 4.6. Genuine visitor requirement V 4.2 The applicant must satisfy the decision maker that they are a genuine visitor, which means the applicant (a) will leave the UK at the end of their visit; and … (c) is genuinely seeking entry or stay for a purpose that is permitted under the Visitor route as set out in Appendix Visitor: Permitted Activities and at V 13.3… Decision V 16.1 If the decision maker is satisfied that all the suitability requirements are met, and that the relevant eligibility requirements for a Visitor are met, the application will be granted, otherwise the application will be refused.”

The Rules thus make it clear that it is for the applicant to satisfy the decision maker that they are a genuine visitor. Suitability requirements for all Visitors a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or b) on immigration bail. Genuine visitor requirement

Decision

[62]Part 9 of the Immigration Rules sets out general grounds of refusal which apply to many different types of application, not just an application for entry clearance as a visitor. If the Secretary of State relies upon any of the grounds in Part 9 this must be spelled out in the relevant decision: this is made clear in the relevant Home Office Guidance.

[63]Paragraph 9.7.1 provides that:

“An application for entry clearance… may be refused where, in relation to the application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application: a. False representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant’s knowledge); or b. Relevant facts are not disclosed.”

In the present case those provisions were not relied upon. a. False representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant’s knowledge); or b. Relevant facts are not disclosed.” B. The Published Guidance

[64]The Secretary of State has issued Guidance for Home Office staff making decisions on applications for a Visitor’s visa which is published on the Government’s website and readily available to the public. The operative version in this case is version 14.0, which contains the following relevant guidance:

“Visit: genuineness and credibility … Assessing an applicant’s personal circumstances See: paragraph V 4.2 of Appendix V: Visitor. The following factors will help you assess if an applicant is a genuine visitor: • Their previous immigration history, including visits to the UK and other countries; • the duration of previous visits and whether this was significantly longer than they originally stated on their visa application or on arrival – if this is the case, you should not automatically presume that the visitor is not genuine, but this may be a reason to question the applicant’s overall intention. • their financial circumstances as well as their family, social and economic background; • their personal and economic ties to their country of residence; • the cumulative period of time the applicant has visited the UK and their pattern of travel over the last 12-month period, and whether this amounts to de-facto residence in the UK; • whether, on the balance of probabilities, the information and the reasons for the visit or for extending their stay provided by the applicant are credible and correspond to their personal, family, social and economic background. Reasons for doubting whether the applicant is a genuine visitor See: paragraph V4.2 of Appendix V: Visitor This is not an exhaustive list but may help with your assessment. If: • the applicant has few or no family and economic ties to their country of residence; and has several family members in the UK – for example a person with most of their family in the UK and no job or studies in their own country may be considered to have few ties to their home country • the applicant, their sponsor (if they are visiting a friend or relative) or other immediate family member has, or has attempted to deceive the Home Office in a previous application for entry clearance, permission to enter or stay; • there are discrepancies between the statements made by the applicant and the statements made by the sponsor, particularly on points where the sponsor could reasonably be expected to know the facts but does not • it has not been possible to verify information provided by the applicant despite attempts to do so • the information that has been provided or the reasons for the visit stated by the applicant are not credible • a search of the applicant’s baggage and vehicle at the border reveals items which demonstrate they intend to work or live in the UK.”

Assessing an applicant’s personal circumstances • Their previous immigration history, including visits to the UK and other countries; • the duration of previous visits and whether this was significantly longer than they originally stated on their visa application or on arrival – if this is the case, you should not automatically presume that the visitor is not genuine, but this may be a reason to question the applicant’s overall intention. • their financial circumstances as well as their family, social and economic background; • their personal and economic ties to their country of residence; • the cumulative period of time the applicant has visited the UK and their pattern of travel over the last 12-month period, and whether this amounts to de-facto residence in the UK; • whether, on the balance of probabilities, the information and the reasons for the visit or for extending their stay provided by the applicant are credible and correspond to their personal, family, social and economic background. See: paragraph V4.2 of Appendix V: Visitor • the applicant has few or no family and economic ties to their country of residence; and has several family members in the UK – for example a person with most of their family in the UK and no job or studies in their own country may be considered to have few ties to their home country • the applicant, their sponsor (if they are visiting a friend or relative) or other immediate family member has, or has attempted to deceive the Home Office in a previous application for entry clearance, permission to enter or stay; • there are discrepancies between the statements made by the applicant and the statements made by the sponsor, particularly on points where the sponsor could reasonably be expected to know the facts but does not • it has not been possible to verify information provided by the applicant despite attempts to do so • the information that has been provided or the reasons for the visit stated by the applicant are not credible • a search of the applicant’s baggage and vehicle at the border reveals items which demonstrate they intend to work or live in the UK.” C. The relevant case law

[65]The common law duty to act fairly does not always require a particular process to be followed before a decision is reached. The question of what procedural fairness requires is always context and fact-specific. As Lord Mustill observed in R v Secretary of State for the Home Department, ex parteDoody

[1994] 1 AC 531

at 560:

“… 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.”

[66]Those sentiments were echoed by Green LJ in his leading judgment in Taj when rejecting the submission that there was a generic obligation on the Secretary of State, when deciding applications under the points-based system (“PBS”) for leave to remain as a Tier 1 (Entrepreneur) Migrant, to put the applicant on notice of any concerns entertained as to the genuineness of the application and the business in question, regardless of whether those concerns related to the truthfulness of the applicant’s account.

[67]The Court of Appeal went on to decide that there was no procedural unfairness on the facts of that case. In doing so, they rejected the submission that there is a hard-edged principle that if a decision-maker is intending to refuse an application upon the basis that the truth of an applicant’s account is to be disbelieved, then that emerging conclusion should be put to the applicant before an adverse decision is taken [72] and [73]. It was held to be significant in that case that the claimant had both access to and control over every fact relevant to the success or failure of his application [54]. The PBS was open and transparent, and the applicant knew the evidence that needed to be provided and the relevance of each evidential matter to the test to be applied [55]. That case was not at its core about the veracity of the applicant but about the paucity and inadequacy of the evidence which he had submitted about his business [65].

[68]Balajigari, which was decided two years before Taj, concerned applications for indefinite leave to remain (“ILR”) made by individuals who had entered the UK under the PBS and carried on business for five years, where a significant discrepancy had been discovered between the earnings declared to the revenue in their tax returns and the earnings claimed in the applications for ILR. The relevant provision of the Immigration Rules on which the Secretary of State sought to rely, paragraph 322(5), was premised on the “undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct”.

[69]The Court of Appeal accepted that in order to engage paragraph 322(5) the conduct relied on had to be sufficiently reprehensible, and that in an earnings discrepancy case that meant that the discrepancy had to be the result of dishonesty on the part of the applicant. They held that where the Secretary of State was minded to refuse ILR on the basis of paragraph 322(5) on the basis of the applicant’s dishonesty or other reprehensible conduct, they are required as a matter of procedural fairness to follow a “minded to” process which would give the applicant the opportunity to respond to the concerns raised and to take that response into account when making the decision. Although the Secretary of State had a discretion under the rules to hold an interview with the applicant, the court did not consider an interview to be necessary in all cases. They stated that a written procedure may well suffice in most cases [56].

DISCUSSION

[70]Neither the original formulation of the ground for which permission to appeal was granted nor Mr Fazli’s recasting of it accurately reflect the substance of the relevant paragraph of the impugned decision, which I have set out in full at [11] above, because the decision maker was not simply complaining of an oversight or omission to mention something material, but of an inaccurate answer to an express question on the application form which was “compounded” by the failure to mention the earlier refusals in any of the ensuing correspondence. However, as they are facets of the same identified “discrepancy” I will proceed on the basis that both the positive and the negative elements of the appellant’s behaviour are encompassed in the complaint of procedural unfairness.

[71]It is important to bear in mind that the question with which the court is concerned on this appeal is whether the UT judge was wrong to refuse permission to proceed with the claim for judicial review on the (unpleaded) ground for which permission to appeal was granted, namely that: “the appellant was not put on notice that her failure to refer to the refusal of a visa in 2010 might be taken into account and so was not given an opportunity to comment on the point”.

[72]That complaint, in context, related specifically to the period between the signing of the Consent Order and the 26 October 2022 decision, and was in essence a complaint that:(i) if the Secretary of State was not going to confine her reconsideration of the November 2021 refusal to the previous reasons for refusal, and

(ii) if (contrary to the appellant’s primary case) she was lawfully permitted to do so,

(iii) she had an obligation to notify the appellant of any other matters of concern on which she might rely and give her the opportunity to comment on them. It was in effect a transposition of the point relating to the jewellery sale which was specifically raised in Ground 3 but no longer pursued in respect of that matter. Crucially it was not a complaint that if this had been the first refusal of the application, the Secretary of State would have been obliged to raise any of these potential reasons for refusal with the appellant or to follow some kind of “minded to” process.

[73]Logically the complaint as thus formulated would extend to any reasons for refusal that had not been aired in the November 2021 decision letter, and not just the failure to mention the previous refusals of a visitor visa. Indeed, that was the way in which it had been articulated in the skeleton argument for the permission hearing before the UT, see [38] and [39] above.

[74]However it was clear from the way in which Mr Fazli developed his arguments both in writing and orally that the appellant wished to pursue a different and much wider (but still unpleaded) ground of alleged procedural unfairness which focused upon the juxtaposition of the following sentences in the paragraph of the October 2022 letter addressing the incorrect answer to the question on the application form and the ensuing non-disclosure:

“this type of discrepancy undermines the credibility of the information provided in your application. Therefore I am not satisfied that your intention to visit the UK is genuine and that you intend to leave the UK after a limited period.” (Emphasis added).

That language is not confined to that paragraph. It also appears in the paragraphs which are not (and cannot be) impugned. This manner of expressing the views of the decision maker is no doubt a product of the way in which the Rules (and Guidance) are formulated, with the use of the expression “genuine” and reference to the “credibility” of the information provided, rather than simply referring to the accuracy of the information.

[75]In R (Karagul and others) v Secretary of State for the Home Department

[2019] EWHC 3208

[2019] All ER (D) 178

(Nov), Saini J considered the judgment in Balajigari as an application of well-established general principles which he sought to summarise at [103]. The first of these was heavily relied on by Mr Fazli:

“Where a public authority exercising an administrative power to grant or refuse an application proposes to make a decision that the applicant for some right, benefit or status may have been dishonest in their application or has otherwise acted in bad faith (or disreputably) in relation to the application, common law fairness will generally require at least the following safeguards to be observed. Either the applicant is given a chance in a form of interview to address the claimed wrongdoing or a form of written “minded to” process, should be followed which allows representations on the specific matter to be made prior to a final decision.” [Emphasis added.]

[76]Whilst he accepted that the Secretary of State had not explicitly accused the appellant of dishonesty, Mr Fazli argued that what was said in the decision letter about the failure to disclose the previous visa refusals was an implicit accusation of disreputable conduct or bad faith because it conveyed the message that the identified ‘discrepancy’ “undermined the credibility of the information provided”, with the result that the decision maker does not believe that the applicant has a genuine intention to visit for a short holiday and then return to her country of residence. He argued that a statement that information provided was not credible and that a professed intention was not genuine was tantamount to a determination that the applicant had been untruthful.

[77]In his oral submissions, Mr Fazli did not press the point that an interview would be required. He submitted that even if, in the light of Taj, the decision maker’s scepticism about the applicant’s real intention would not be sufficient to trigger a requirement for a formal “minded to” process, the appellant should still have been put on notice that her failure to mention the previous refusal of a visa was a matter of concern and given an opportunity to respond before the decision was taken.

[78]Mr Fazli agreed, when it was put to him, that if his overarching submission was correct, then it would be tantamount to introducing a requirement that in every case in which the decision-maker (in practice, an Entry Clearance Officer) proposed to refuse leave to enter under Appendix V paras 4.2(a) and (c) they would have to give the applicant an opportunity to address the matters which gave rise to a concern about the credibility of the information provided or the genuineness of that person’s intentions (irrespective of whether it was the first decision to refuse the application or a decision taken on reconsideration). That would be the consequence of following the argument through to its logical conclusion, although in this specific case there is and can be no allegation of procedural unfairness in respect of any of the other matters specified in the decision letter which gave rise to that concern.

[79]Mr Fazli did accept that if that opportunity to provide an explanation was given and taken, then, if the decision maker disbelieved the applicant’s explanation, there would be no requirement for any further procedural step to be taken and the decision would only be open to challenge on rationality grounds.

[80]Bearing in mind what was said in Talpada and the procedural history which I have set out in detail above, I have no hesitation in concluding that the appellant should not be allowed to raise this new unpleaded argument for which permission to appeal was neither sought nor granted, and that we should therefore refuse to engage with its substance.There is no unfairness to the appellant in taking this course. This argument involves a complete recasting of her case in a manner which has very wide implications (including practical implications) for the whole system of refusing applications under Appendix V of the Immigration Rules. She and her legal advisers have had more than ample opportunity to decide what their grounds of challenge should be. Moreover, the appellant’s failure to plead any point about procedural fairness relating to the non-disclosure of the earlier visa refusals has to be viewed in the light of the fact that her legal representatives chose to plead that procedural fairness required a Balajigari type process to be followed only in relation to the jewellery sale allegation.

[81]I shall therefore proceed to consider the ground for which permission was granted, but which Mr Fazli did not pursue in those terms. The short answer, it seems to me, is that the UT judge cannot be said to have been wrong to refuse to address or to fail to give permission to proceed on a ground that was never properly formulated, let alone pleaded as one of the grounds of judicial review, particularly when the appellant had expressly stated in the grounds for renewal that she was relying on the same grounds as she had previously raised on the papers. The fact that permission to appeal to this court was granted is no answer to that point, particularly when no steps were taken even in the light of the grant of permission to seek permission to amend the claim form and the Statement of Facts and Grounds to raise it as a ground for judicial review.

[82]However, in fairness to the appellant I have also considered whether there would have been any merit in this appeal if the ground for which permission to appeal to this court was granted had been pleaded – i.e. if the UT judge had treated paragraph 4 of the grounds for renewal as an independent ground for judicial review. The test for granting permission to proceed is whether the court/tribunal is satisfied that there is an arguable case that a ground for seeking judicial review exists which merits full investigation at an oral hearing. The purpose of the requirement for permission is to eliminate, at an early stage, claims which are hopeless, frivolous or vexatious. If this court considers that there is a viable argument which should proceed to a full judicial review, then it is best to leave it to be determined by the specialist immigration tribunal, and it would be unwise to express any views about its merits.

[83]Speaking for myself, despite the relatively modest threshold at the permission stage, I am not satisfied that this matter was sufficiently arguable to merit full consideration by the UT. The Secretary of State’s promise to reconsider the November 2021 decision may well have been misunderstood by the appellant’s legal advisors as confining the reconsideration to the particular reasons for refusal referred to in that decision letter, but the UT judge has held (and the single judge has confirmed) that the promise to reconsider meant that a fresh decision would be taken on the application for a visitor’s visa and the Secretary of State was not constrained by any earlier decisions. That means that the Secretary of State’s obligations in terms of procedural fairness were no different from those which arose on the initial consideration of the application. The fact that the decision maker might rely on other grounds was not only a possibility, but it was a possibility that the appellant’s legal advisors were aware of because they sought to argue pre-emptively in the letter of 22 October 2022 that this course was not open to the Secretary of State.

[84]There would have been no basis for complaint if the decision maker on the first occasion back in July 2021 had relied on the inaccurate answer to the question about previous refusals without first asking the applicant for an explanation. The appellant was asked a specific question on the application form which she answered inaccurately. The very fact that the question was asked is indicative that it was a matter to which some importance was likely to be attached. I therefore cannot accept the implication that the appellant was somehow unfairly ambushed by this point being raised on the third consideration of her application simply because it had not been raised on two previous occasions, and thus she or her advisers assumed that it was not an issue and therefore did not address it.

[85]Even if that is what happened, that is not a justification for concluding that procedural fairness required the Secretary of State to alert the appellant to this or any other matter of concern that might be relied upon and which had not been previously mentioned, and give her an opportunity to address it. That would have been the position had dishonesty been alleged and Part 9 of the Immigration Rules had been relied upon, but one cannot equate what procedural fairness requires in that situation with what is required when dishonesty is not alleged.

[86]Therefore, subject to section 16(3C) of the 2007 Act, if he had addressed this ground, my view is that the UT judge would have been entitled to refuse permission to proceed with the claim for judicial review. However, since the matter was argued, I should also consider how section 16(3C) would affect the position on the hypothetical assumption that the ground for which permission was granted would get over the threshold for permission to proceed (and the Statement of Facts and Grounds were amended to remove all other grounds and replace them with this one).

[87]Mr Fazli very helpfully referred us to a number of cases which emphasised that the “highly likely” threshold is difficult to overcome, particularly in a case where procedural unfairness is established. The most pertinent of these was R (New Hope Care Ltd) v Secretary of State for the Home Department

[2024] EWHC 1270

at [111] to [113], a judgment following a substantive judicial review. In that case, a decision to revoke a sponsor’s licence was held to have been taken in a procedurally unfair manner, indeed in a manner which departed from the Secretary of State’s own commitments as to what a fair and appropriate process would look like in a case of that particular kind.

[88]In the passage relied on by Mr Fazli, the judge, David Pievsky KC, was considering the argument that any procedural unfairness was immaterial at common law (because revocation of the licence was said to have been inevitable), and the alternative submission that it was highly likely that the outcome would not have been substantially different had the conduct not occurred, applying section 31(2A) of the Senior Courts Act 1981. The judge referred to a number of earlier authorities, including R (Cava Bien) v Milton Keynes Council

[2021] EWHC 3003 (Admin)

which stressed the difficulty of upholding such an argument where there has been a decision-making process which is not in accordance with the law. He concluded on the evidence before him that whilst revocation of the licence was a “serious possibility” that was a long way from being satisfied that revocation was “highly likely”, which he described as a “high hurdle.”

[89]Mr Fazli also cited R (Grinham) v Parole Board

[2020] EWHC 2140 (Admin)

in which Spencer J (dealing with a common law immateriality argument) concluded that the case before him was not one of those “exceptional” cases in which it could safely be said that the outcome would inevitably have been the same had there been no procedural unfairness. Mr Fazli said that if he had had more time to research the point, he may have wished to refer to further authorities.

[90]Mr Fazli also referred to observations made by Sales LJ in R(Harvey) v Mendip District Council

[2017] EWCA Civ 1785

at [47], in the context of an argument that section 31(2A) applied to a planning decision, that none of the decision makers had put in witness statements to support the contention that they would have granted planning permission even if they had known that the proposed development was in breach of the Local Plan.

[91]Whilst that may have been fair comment in that specific context, it does not readily read across to the present situation. In a claim for judicial review, particularly at the permission stage, no one would expect the decision maker to put in a witness statement to say what they would have done if the applicant had explained that the reason why she ticked the “no” box on the application form was that she had forgotten her earlier applications for a visitor’s visa because they were made more than 10 years previously. That is particularly true in the present case, because the complaint of procedural unfairness was not raised in the grounds for judicial review.

[92]The question for this court is whether the UT judge was wrong to refuse permission to proceed. He would not have been wrong to do so, if he would have been obliged to refuse permission on the basis that he considered that it was “highly likely” that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. This case is plainly not of the type which might afford some justification for the disapplication of the mandatory rule, and that was not suggested to us.

[93]Of course, this court cannot see into the UT judge’s mind, and it cannot send the matter back. It seems to me that we must approach the matter objectively and decide how a reasonable judge faced with this evidence would have resolved the matter.

[94]The question which the UT judge would have had to consider is what would have happened if the explanation provided by the appellant for not mentioning the previous refusals/answering “no” to the question in the form had been put before the decision maker. There are only two possibilities; either the decision maker would have accepted her explanation, or they would have disbelieved it. If they would have disbelieved it, then the decision would obviously have been the same. If they would have believed it, then they would either have treated the oversight as an indication of unreliability, in which case the decision would have been the same, or they would have decided to place no reliance on her failure to mention the previous refusals.

[95]Taking the latter approach, which is the most favourable to the appellant, what impact would it have had on the outcome of her visa application? It seems to me that the only rational answer to that question is “none”. The decision maker would still not have been satisfied of the appellant’s intentions, for all the other independent reasons given in the remaining paragraphs of the decision letter. She would still not have discharged the burden which lay on her under the Rules of satisfying the decision maker that she was a genuine visitor.

[96]Mr Fazli submitted that the court could not be sure that the approach taken in the impugned paragraph did not “infect” the decision-maker’s approach in the subsequent paragraphs of the decision letter, so that a different approach might have been taken to the rest of the matters mentioned in the letter if it were accepted that she had forgotten the previous visa refusals. However, on re-reading those paragraphs (see [12] above) I cannot see how that could be the case. Each of them deals with a different aspect of the application and each gives a rational and credible explanation of why the decision maker is not satisfied with the documentary evidence or explanations relied upon by the appellant. They provide independent reasons why the decision maker has decided to refuse the application. Even if the decision maker was satisfied that there was a mistake in completing the application form and that this should be completely disregarded, it would have made no difference to the outcome. One only needs to be satisfied that it would have been “highly likely,” but here I would regard that as inevitable.

CONCLUSION

[97]For these reasons, I am not persuaded that the UT judge’s decision to refuse permission to proceed with the claim for judicial review was wrong. Even if the ground for which permission to appeal was granted had been pleaded, and even if it had crossed the threshold for permission to proceed, it was at least highly likely that the outcome for the appellant would have been the same even if the conduct of which she complains in that ground had not occurred. UT Judge Kopieczek would therefore have been obliged to refuse permission on that ground as well as on those which he rightly found did not cross the permission threshold.

[98]I would therefore dismiss this appeal.

[99]I agree that the appeal should be dismissed for the reasons given by Andrews LJ.

[100]I also agree.