Vijaylaxmee Kumari Daby v The Secretary of State for the Home Department

Where an in-country application is refused because a supporting document is alleged to be false, and the Secretary of State fails to prove that allegation on the appeal, an allowed appeal requires the Secretary of State to grant leave in accordance with the original application. The Secretary of State cannot avoid that binding determination by issuing a further refusal of the same application on the same allegation, even if evidence later becomes available.

The earlier determination establishes only what it decided. Where it found merely that forgery was not proved, rather than that the document was genuine, the alleged forgery may be considered in determining a later and distinct application.

The appellant, a Mauritian national, applied in 2009 for leave to remain as a Tier 1 (Post Study Work) Migrant. The Secretary of State refused the application on the sole ground that a document relied upon to meet the maintenance requirement was forged.

Immigration Judge Herlihy allowed the first appeal. The Secretary of State had adduced no evidence of forgery, bore the burden of proving it, and had not discharged that burden. Instead of granting the leave sought, the Secretary of State issued a further refusal of the same application on the same ground. On the second appeal, Immigration Judge W L Grant accepted evidence that the document was forged and dismissed the appeal.

The central issue was whether the Secretary of State could re-refuse the original application on the same ground after the first appeal had been allowed.

1. Appeal allowed. Immigration Judge Grant erred in law by determining afresh whether the document was forged. The Secretary of State was bound to implement Immigration Judge Herlihy’s allowed appeal and grant the leave sought under the 2009 application.

2. The principle stated in SSHD v TB (Jamaica) [2008] EWCA Civ 977 applies beyond asylum cases. A party, particularly the Secretary of State, cannot circumvent a Tribunal decision by an administrative decision. That would undermine the statutory appeal system and the rule of law.

3. The first Immigration Judge decided that the Secretary of State had failed to prove forgery. She did not decide that the document was genuine. The Secretary of State’s failure to present the evidence at the first appeal meant that she bore the consequence for that application, notwithstanding that the evidence later satisfied the second Immigration Judge.

4. The Tribunal directed the Secretary of State to grant leave in accordance with the 2009 application, as though it had originally been granted. The binding effect of that conclusion is confined to that application. On a later application to the Secretary of State or an entry clearance officer, the decision-maker may consider whether the document was forged and whether that affects the later application, including through a discretionary refusal if forgery is established.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appellant’s appeal and directed the Secretary of State to grant leave in accordance with the 2009 application.

• Immigration Judge W L Grant: dismissed the second appeal after accepting evidence that the supporting document was forged.

• Immigration Judge Herlihy: allowed the first appeal because the Secretary of State had not proved the allegation of forgery and the appellant met the relevant immigration rules.