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

Judicial review of immigration decisions applies ordinary public-law principles. The 28-day overstaying period in paragraph 276B(v) is applied strictly; solicitor negligence does not extend it, particularly where the explanation was not before the decision-maker.

In deception cases, the Secretary of State must identify evidence of deception, the applicant must raise an innocent explanation, and the Secretary of State must then prove deception on the balance of probabilities. A fresh claim requires consideration of whether an adjudicator applying anxious scrutiny would have a realistic prospect of success, rather than whether the Secretary of State personally considers the claim meritorious.

The claimant, a Botswana national, sought judicial review of the refusal of indefinite leave to remain and a related detention decision. Only the refusal of indefinite leave to remain remained in issue.

The refusal relied on overstaying beyond the 28-day period in paragraph 276B(v), alleged deception in obtaining a TOEIC certificate under paragraph 322(2), and the absence of an Article 8 basis for leave outside the Rules. Further submissions were rejected as not amounting to a fresh claim under paragraph 353.

The central issues were whether those conclusions were irrational or procedurally unfair and whether the Secretary of State applied the correct approach to the alleged deception and fresh claim.

1. Overstaying. Paragraph 276B(v) had to be interpreted strictly. The 28-day period expired on 29 April 2016, whereas the application was not received until 13 June 2016. The explanation that former solicitors had delayed filing was not before the Secretary of State when the decision was made. In any event, the later response made clear that the outcome would have been unchanged because of the deception finding.
2. Article 8. The Secretary of State had considered both family and private life. There were no insurmountable or significant obstacles to family life continuing in Botswana and no proper basis for concluding that removal would breach Article 8 ECHR.
3. Deception. Applying R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784 and the approach in SM & Qadir [2016] EWCA Civ 1167, the court considered three stages: whether the Secretary of State identified evidence shifting the evidential burden; whether the claimant raised an innocent explanation; and whether deception was proved on the balance of probabilities. ETS evidence, Ms Green’s evidence and Professor French’s report shifted the evidential burden. The claimant’s educational qualifications constituted, with hesitation, a sufficient innocent explanation to require consideration of the legal burden. The Secretary of State nevertheless proved deception on the balance of probabilities. The refusal under paragraph 322(2) was therefore unimpeachable.
4. Fresh claim. Paragraph 353 required the Secretary of State to ask whether the further submissions, taken with earlier material, created a realistic prospect that a First-tier Tribunal judge applying anxious scrutiny would reach a different conclusion. The Secretary of State’s own view could be only the starting point. Applying R (WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the court concluded that the deception argument was hopeless and that there were no real prospects of success. The fresh claim ground therefore failed.
5. The judicial review application was refused.