Ahlat, R (on the application of) v Secretary of State for the Home Department

In judicial review, the legality and rationality of an administrative decision must ordinarily be assessed on the information available to the decision-maker when the decision was made. Later evidence cannot retrospectively make a rational decision irrational. A negative immigration history, including unlawful presence, may be taken into account under paragraph 4 of HC510, but cannot alone determine the outcome. Paragraph 21 sets out relevant, non-exhaustive requirements for a person seeking consent to establish a business, including evidence of assets devoted to the business and ability to meet liabilities. A refusal may be lawful where the decision-maker considers the relevant circumstances and the applicant fails to provide evidence addressing those requirements.

The claimant, a Turkish national, sought judicial review of the Secretary of State’s refusal of his application to remain in the United Kingdom as a businessman under the ECAA agreement. His original challenge concerned the refusal to apply the 1973 Immigration Rules and the standstill clause in article 41.1 of the Additional Protocol to the EC-Turkey Association Agreement. After permission was granted, the Secretary of State reconsidered the application under HC510 and refused it on 31 March 2009.

The claimant amended his grounds to challenge that later decision, relying on published guidance and alleging irrationality. He also sought to rely on late-produced business records and financial documents. The central issues were whether those documents should be considered and whether the refusal unlawfully treated his immigration history and failure to provide financial evidence.

1. Late evidence. The court refused to consider documents served shortly before the hearing which had not been before the Secretary of State. Judicial review examines the decision on the material available to the decision-maker. A decision may appear wrong in hindsight because of later information, but that does not establish irrationality at the time of the decision. The claimant had had opportunities to provide the material earlier.
2. Immigration history. The guidance for non-fraudulent in-country cases did not create an entitlement to remain merely because an applicant could rely on the standstill clause. It expressly required consideration under paragraphs 4 and 21 of HC510. The guidance that unlawful presence could not “in itself” be conclusive meant that immigration history could nevertheless be taken into account with the other relevant circumstances.
3. Paragraph 4. Paragraph 4 permitted consideration of whether the applicant had observed the time limits and conditions of admission. The Secretary of State was entitled to regard the claimant’s history, including the timing of his business application after his previous leave had expired, as relevant.
4. Paragraph 21. The factors in paragraph 21 were not exhaustive. The claimant had provided no evidence demonstrating that he possessed the funds required for the stated start-up costs or could meet liabilities incurred by the business. Bank statements were not the only possible form of proof, but some satisfactory evidence was required. That failure was a lawful and material basis for refusal.
5. The reference to the absence of significant investment or job creation was neutral rather than adverse. Even disregarding that point, the decision was not irrational, unreasonable or unlawful when the immigration history and failure to satisfy paragraph 21 were considered together. The claim concerning the earlier decision had become academic. The application for judicial review was refused. The Secretary of State was awarded costs, subject to the claimant’s public-funding protection and detailed assessment.

First-instance judicial review. Permission initially refused on the papers, then granted on renewal by Irwin J on 24 February 2009. Following reconsideration by the Secretary of State, the claimant amended the grounds to challenge the decision dated 31 March 2009. The High Court refused the application.