Giri, R (On the Application Of) v Secretary of State for the Home Department

A factual finding of deception made when deciding whether to grant or refuse leave to remain is ordinarily part of the Secretary of State’s statutory decision-making function. On judicial review, the court does not determine that fact afresh as a precedent or jurisdictional fact. It asks whether the finding was reasonably open to the decision-maker on the evidence.

The position differs where the statutory power to remove depends upon deception having occurred. A finding of deception must be scrutinised carefully, but dishonesty does not create a heightened civil standard of proof. There is one civil standard: proof on the balance of probabilities. Serious allegations and consequences may require evidence of greater strength and quality.

The appellant applied for leave to remain as a Tier 1 (Post-Study Work) Migrant. The Secretary of State refused the application under paragraph 322(1A) of the Immigration Rules because he had answered negatively when asked whether he had previously used deception, despite a previous entry-clearance application involving false documents.

Jay J dismissed the appellant’s judicial-review claim: although inclined to regard deception as a precedent fact, he found both that the refusal was not Wednesbury unreasonable and that deception was proved on the balance of probabilities. The appellant appealed from the Administrative Court decision, [2014] EWHC 1832 (Admin).

The principal questions were whether the court should determine deception for itself, and, if so, whether dishonesty required a heightened standard of proof.

1. Appeal dismissed. The refusal concerned the exercise of the Secretary of State’s power under section 3 of the Immigration Act 1971 to grant or refuse leave to remain. The factual questions arising under the Immigration Rules, including whether deception had been used for paragraph 322(1A), were matters for the Secretary of State in exercising that power.

2. The court followed the distinction in R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74 and Bugdaycay v Secretary of State for the Home Department [1987] AC 514. A fact is for the court to determine where it is a condition of the existence of the statutory power, such as the fact of illegal entry for a detention or removal power. By contrast, factual questions that arise while the Secretary of State decides whether to grant leave are reviewable on ordinary public-law grounds.

3. Paragraph 320(7B) of the Immigration Rules did not alter that conclusion. The use of the expression “illegal entrant” in a Rule governing future applications did not make it a precedent fact. The judge below had therefore asked himself the wrong question when he decided whether deception was proved on the evidence before the court. However, he had also correctly found that the Secretary of State’s decision was not Wednesbury unreasonable. That finding justified dismissal of the claim.

4. The appropriate review was whether it had been reasonably open to the decision-maker, on the available material, to find deception. The finding required careful scrutiny, but proportionality did not arise in assessing that factual finding. The Immigration Rules themselves were not challenged.

5. The standard-of-proof issue did not arise for decision, but the court gave guidance for tribunal appeals. There is a single civil standard, namely the balance of probabilities. The seriousness of dishonesty or its consequences affects the strength and quality of evidence required in practice, not the degree of probability that must be established. The expression “heightened scrutiny” should be avoided if it risks suggesting a heightened standard of proof.

• Court of Appeal (Civil Division) dismissed the appellant’s appeal: [2015] EWCA Civ 784.
• Administrative Court, High Court Jay J dismissed the application for judicial review of the refusal of leave to remain: [2014] EWHC 1832 (Admin).