Sajith Muhandiramge v The Secretary of State for the Home Department

For refusal under section S-LTR.1.7(b) of Appendix FM to the Immigration Rules, an applicant who failed to provide required information bears the legal burden of proving a reasonable excuse on the balance of probabilities. This is not an allegation of deception requiring the Secretary of State to disprove an innocent explanation. The excuse concerns facts peculiarly within the applicant’s knowledge, and the ordinary rule that the party asserting the relevant condition must prove it applies.

Section S-LTR.1.1 requires mandatory refusal where its conditions are met. The Tribunal nevertheless observed that using a mandatory failure-to-provide-information ground where the facts instead concern non-disclosure of material facts may, in an appropriate case, raise public-law error.

The appellant, a Sri Lankan national, applied for leave to remain as the spouse of a settled person. He answered “No” to a mandatory question asking whether he had criminal convictions, despite convictions for two fraud offences.

The Secretary of State refused the application under section S-LTR.1.7 of Appendix FM to the Immigration Rules and made removal directions. The First-tier Tribunal dismissed his appeal. It rejected his explanation that he had believed the criminal proceedings had ended in a compromise and did not amount to convictions.

Permission to appeal was granted on the issue whether the First-tier Tribunal had erred by placing on the appellant the burden of establishing a reasonable excuse, rather than requiring the Secretary of State to prove the absence of such an excuse.

1. Appeal dismissed. The First-tier Tribunal made no error of law in holding that the appellant bore the burden of proving a reasonable excuse for his non-disclosure. Its dismissal of the appeal was affirmed.

2. Section S-LTR.1.7(b) requires refusal where an applicant has, without reasonable excuse, failed to comply with a requirement to provide information. The words “will be refused” in section S-LTR.1.1 make refusal mandatory, in contrast with the normally discretionary grounds in section S-LTR.2.1 of Appendix FM to the Immigration Rules.

3. The ordinary rule is that a party seeking a legal consequence must prove the facts entitling him to it. The reasonable-excuse qualification was relied on by the appellant and concerned information peculiarly within his knowledge. He therefore had the legal burden of establishing it on the balance of probabilities.

4. The burden-shifting analysis applicable where the Secretary of State alleges dishonesty or deception did not govern this case. Refusal under section S-LTR.1.7(b) did not require proof of dishonesty or an intention to deceive. There was no principled basis for either placing the legal burden on the Secretary of State or treating the appellant’s burden as merely evidential.

5. The Tribunal added, obiter, that it may be inappropriate to use the mandatory failure-to-provide-information ground where the substance of the case is failure to disclose material facts, which attracts discretionary refusal. A capricious or slavishly inflexible use of the mandatory ground could found public-law errors, although that issue was not germane to this appeal.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s error-of-law appeal and affirmed the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appeal against the Secretary of State’s refusal of leave to remain under Appendix FM to the Immigration Rules.