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

Where an Immigration Rule makes refusal mandatory upon proof of a specified characteristic, the issue may properly be approached as one of precedent fact rather than ordinary Wednesbury review. The court provisionally considered that this approach could apply to the deception provisions in Part 9 of the Immigration Rules. It nevertheless applied the ordinary balance of probabilities, rather than a heightened standard. Deception requires more than objectively false information: the false representation must have been dishonestly made. A claimant’s credibility and the surrounding evidence may establish that requirement. A judicial review claim may therefore fail even where the Secretary of State’s reasoning was unsatisfactory, if the court itself is satisfied that the relevant deception occurred.

The claimant, a Nepalese citizen, challenged the Secretary of State’s refusal of his application for further leave to remain and the indication that future entry-clearance applications would be refused. The refusal relied on his failure to disclose, or false answer concerning, his use of forged bank documents in an earlier student-entry application. The claimant had admitted using forged documents in an interview in 2006, but was nevertheless granted entry clearance and later obtained successive grants of leave. Permission for judicial review was granted on the question whether the decision complied with paragraph 322(1A) of the Immigration Rules. The central issues were whether deception was a precedent fact requiring determination by the court, what standard of proof applied, and whether the claimant had dishonestly answered the relevant question in 2011.

1. The application for judicial review was dismissed. The court was able to decide the case without finally determining whether the relevant issue was a precedent fact or merely whether the Secretary of State’s decision was Wednesbury unreasonable. It proceeded on the claimant’s more favourable assumption that the court had to determine the fact for itself.

2. The court provisionally inclined to the view that the mandatory wording of paragraph 320(7B), and similarly worded provisions, required relevant facts to be established before the refusal duty arose. The reasoning in Khawaja v Secretary of State for the Home Department was potentially applicable beyond illegal-entry cases. The point was left open because fuller argument would have been required.

3. Even on that approach, the applicable standard was the ordinary balance of probabilities. The heightened standard associated with Khawaja v Secretary of State for the Home Department had been modified by later Supreme Court authority. The court therefore asked whether the 2011 answer to question D21 was dishonestly false.

4. The answer was objectively false because the claimant had used deception in his 2006 entry-clearance application. The interview notes were accepted as accurate, and the claimant’s later witness statement was unconvincing. On the balance of probabilities, the answer was also dishonest. The court’s dissatisfaction with the caseworker’s simplistic reasoning did not prevent the court reaching that conclusion itself.

5. The court expressed concern about the Secretary of State’s failure to explain why entry clearance had been granted in 2006 despite the known deception, and about the later grants of leave. It invited a senior immigration officer or caseworker to reconsider the refusal, but made no direction and dismissed the claim.