Adnan Mushtaq, R (on the application of) v Entry Clearance Officer of Islamabad, Pakistan

Common-law procedural fairness applies to entry-clearance decisions. A credibility interview must both enable the Entry Clearance Officer to investigate the application and give the applicant a fair opportunity to answer matters which may be relied upon adversely.

An adverse finding is unlawful where it rests on matters not fairly put to the applicant, or where the assessment is irrational in the Wednesbury sense. A breach of the applicable Case Worker Guidance may also invalidate a decision, but a challenge based on guidance will generally require irrationality or a material procedural irregularity.

The applicant, a Pakistani national, applied for entry clearance as a Tier 4 student. He obtained the necessary points and satisfied the maintenance requirements, but the Entry Clearance Officer refused the application under the genuine-student requirement in paragraph 245ZV(k) of the Immigration Rules.

The refusal relied on five adverse conclusions drawn from the applicant’s interview, concerning his reasons for study, knowledge of the college and London, and the proposed funding. Permission for judicial review was initially refused on paper, but was granted after a renewed inter partes application on grounds concerning compliance with the guidance and procedural fairness.

The central issue was whether the interview and ensuing refusal fairly gave the applicant an opportunity to answer the adverse concerns relied upon.

1. The judicial-review claim succeeded. The Upper Tribunal quashed the Entry Clearance Officer’s decision. The decision-making process was manifestly unfair and was also tainted in part by Wednesbury irrationality.

2. The common-law duty of procedural fairness applies to Entry Clearance Officers. Following T (Entry Clearance) Jamaica [2011] UKUT 483 (IAC), Miah (Interviewer’s Comments: Disclosure: Fairness) [2014] UKUT 515 (IAC), and the principles in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, an applicant must have an opportunity to make representations and be informed of the gist of the case to answer.

3. The interview questions did not fairly support several adverse findings. The applicant was not told that he had to identify a specific personal reason for study, nor was he given a fair opportunity to address the interviewer’s intended meaning of college “facilities”, general knowledge of London, the costs of long-term study, or the asserted mismatch between expenditure and family finances. Those matters were either not put at all or not sufficiently clarified or probed.

4. The conclusions that the applicant had no real idea how the qualification would assist his plans, and had given no specific personal reason for studying in the United Kingdom, were irrational because they contradicted or disregarded material answers he had given.

5. The applicable Case Worker Guidance required an applicant ordinarily to have a chance to answer interview questions before refusal under paragraph 245ZV(k). That requirement was breached by the mismatch between the interview and the adverse reasons. Other alleged breaches of the guidance were not established. Ordinarily, a guidance challenge succeeds only upon proof of Wednesbury irrationality or a material procedural irregularity.

The applicant was entitled to costs, subject to any contrary representations. Permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review allowed and the Entry Clearance Officer’s refusal decision quashed.
• Upper Tribunal (permission stage): Permission to apply for judicial review was refused on paper on 22 September 2014, then granted after a renewed inter partes hearing on 9 January 2015.