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

An entry-clearance decision based on an earlier finding of deception is subject to Wednesbury review, applying the ordinary civil standard of proof. Where a later application supplies significant new evidence bearing on whether deception was in fact used, the decision-maker must consider it. The earlier finding may carry considerable weight, but it cannot be treated as automatically conclusive.

A refusal under paragraphs 320(7A) and 320(7B) of the Immigration Rules is unlawful where the decision-maker ignores relevant fresh material and it is not inevitable that proper consideration would have produced the same result. Later explanations cannot retrospectively cure that flaw.

The appellant, an Indian businessman, applied for a business visitor visa. His first application was refused because a letter concerning his business was treated as false, engaging paragraph 320(7A) of the Immigration Rules. His second application was refused under paragraph 320(7B), which imposed a ten-year bar following the alleged earlier deception.

The second application included further material, including a registration certificate connecting the business to the Mumbai address which had prompted the verification concerns. The Upper Tribunal refused permission to bring judicial review proceedings. The appeal concerned whether the second refusal was unlawful for irrationality or procedural unfairness, notwithstanding the unchallenged first refusal.

1. Appeal allowed. The court granted permission to apply for judicial review, set aside the decision of 23 January 2014 and remitted the matter to the Secretary of State.

2. Following R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784, the court did not determine for itself whether deception had in fact occurred as a jurisdictional fact. The question was whether the Entry Clearance Officer's decision was Wednesbury unreasonable, applying the ordinary civil standard. On the material then available, the first refusal was not arguably unreasonable.

3. That did not make the first refusal conclusive for all later applications. An applicant may provide an innocent explanation supported by evidence that was not before the original decision-maker. When deciding whether paragraph 320(7B) of the Immigration Rules applies, the Secretary of State must consider that explanation and evidence. Considerable weight may properly be given to the earlier decision.

4. The second refusal relied automatically on the earlier finding of deception. It did not address the substantial additional material, particularly the registration certificate linking Unique Express to the Mumbai premises. This was a failure to consider relevant considerations. It was not inevitable that proper consideration would have produced the same conclusion, and the decision was therefore outside the Secretary of State's lawful discretion.

5. The court did not decide the separate procedural-fairness issue. Fairness in a case involving a proposed or previous finding of deception is intensely fact-sensitive. The Entry Clearance Manager's later explanation could not retrospectively justify the defective decision: the court had to assess the decision when made and communicated.

6. Under section 16(8)(c) of the Tribunals, Courts and Enforcement Act 2007, the court itself decided the application for relief. Reconsideration was remitted to the Secretary of State as primary decision-maker, taking account of the material submitted with the second application and any further relevant material.

• Court of Appeal (Civil Division): Allowed the appeal in [2016] EWCA Civ 156, granted permission to apply for judicial review, quashed the second entry-clearance refusal and remitted reconsideration to the Secretary of State.
• Upper Tribunal (Immigration and Asylum Chamber): On 21 November 2014, refused permission to bring judicial review proceedings and permission to appeal.