Singh v Secretary of State for the Home Department

Where evidence is disputed in judicial review proceedings, the defendant’s evidence is ordinarily accepted unless the claimant applies to cross-examine the relevant witness or shows that the evidence cannot be correct. The absence of particularised evidence from the claimant may therefore be decisive.

Under paragraph 245AA of the Immigration Rules, an applicant may correct missing information or documents only in the circumstances expressly specified. A document containing the same information as a required document does not qualify as that document in the wrong format where it is a wholly different kind of document. A challenge based on misleading wording in an official form also requires evidence that the applicant was actually misled.

The appellant, an Indian national with Tier 1 (Entrepreneur) leave, applied for further leave under the Points-Based System. The Secretary of State refused the application because, among other deficiencies, the required employee payslips had not been supplied. The appellant maintained that they had accompanied his application and sought judicial review in the Upper Tribunal.

The Upper Tribunal found on the balance of probabilities that the payslips had not been sent. It also rejected the claim after considering the application form and the Secretary of State’s case record. The appellant appealed, contending that the factual finding was wrong and that paragraph 245AA of the Immigration Rules required an opportunity to remedy the omission. He additionally sought to argue that the official form’s reference to “pay statements” was misleading.

1. The appeal was dismissed unanimously. The Upper Tribunal was entitled to find that the payslips had not been submitted. Although the Court of Appeal was as well placed as the Upper Tribunal to assess the documentary evidence, it could intervene only if persuaded that the factual finding was wrong.

2. Where evidence is disputed in judicial review proceedings, the facts stated in the defendant’s evidence are accepted unless the claimant applies to cross-examine the relevant witness or the evidence cannot be correct. The Court applied R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518. The appellant neither sought to cross-examine the caseworker responsible for the database record nor supplied particularised evidence from himself or his accountants about compiling and sending the application. That omission was effectively fatal. An unrelated error in the database record did not establish that the entry concerning the missing payslips could not be correct.

3. The failure to seek administrative review was not central. Such a review might have prompted an early investigation, but it did not permit the submission of missing documents. The Tribunal still had to determine what had accompanied the original application.

4. Paragraph 245AA of the Immigration Rules obliged the Secretary of State to permit correction only in its specifically prescribed circumstances, consistently with Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65. Schedules showing employees’ monthly gross and net pay were not payslips in the wrong format. They were wholly different documents from the duplicate payslips required by paragraph 46-SD(h)(iv). The omission was therefore a “wrong document” rather than a “wrong format” case, and paragraphs 245AA(b)(ii) and 245AA(d)(i) did not apply.

5. Permission to advance the new argument concerning “pay statements” was refused because the argument had no merit. Section 8 of the Employment Rights Act 1996 uses “pay statement” as the statutory name for what is generally called a payslip. Even if the form could mislead some applicants, the appellant produced no evidence that he or his accountants had actually been misled. His case before the Tribunal had instead proceeded on the basis that they understood payslips were required and asserted that they had supplied them.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The Upper Tribunal’s factual finding was upheld, the evidential-flexibility argument was rejected, and permission to advance the new ground was refused: [2018] EWCA Civ 2861.

2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Freeman dismissed the judicial review claim, finding that it had not been shown on the balance of probabilities that the payslips were submitted with the application.

3. Upper Tribunal permission stage: Upper Tribunal Judge Kekic granted permission to apply for judicial review after an earlier refusal on the papers by Upper Tribunal Judge Smith.