Ullah v The Secretary of State for the Home Department

Following an unappealed tribunal decision granting indefinite leave to remain, the Secretary of State may reopen the matter on discovering fresh evidence of deception. Before cancelling the resulting leave, the Secretary of State must apply principles analogous to the Ladd v Marshall test.

The evidence must be apparently credible, likely to have an important influence on the decision, and such that it could not have been obtained earlier with reasonable diligence. The resulting decision is reviewable on ordinary public law grounds. Where legislation provides no right of appeal, judicial review does not supply a full factual rehearing.

The appellant obtained indefinite leave to remain after the First-tier Tribunal allowed his appeal against its refusal. The Secretary of State later received evidence indicating that the appellant had made overseas visa applications during the period in which he claimed continuous residence in the United Kingdom. His leave to enter was cancelled under the Immigration Act 1971 and the Immigration Rules.

The Upper Tribunal dismissed his judicial review claim after applying the three-part test associated with fresh evidence under Ladd v Marshall. The Court of Appeal confined the appeal to whether that was the correct legal test where leave granted following a successful tribunal appeal was later cancelled for alleged deception.

1. Appeal dismissed. The Upper Tribunal had applied the correct legal test when reviewing the Secretary of State’s decision. McCombe LJ gave the judgment, with which Hamblen and Haddon-Cave LJJ agreed.

2. An unappealed tribunal determination is binding. The Secretary of State cannot circumvent the statutory appeal system by simply reconsidering the same matter administratively. Different considerations arise, however, where relevant fresh evidence of deception was unavailable when the tribunal decided the appeal. Although the relevant statement in TB [2008] EWCA Civ 997 was obiter, it accorded with the earlier authorities.

3. Where the Secretary of State proposes to take action effectively revoking indefinite leave granted after a tribunal determination, the decision-making process must apply by analogy the principles governing fresh evidence on appeal. The evidence must have been unobtainable earlier through reasonable diligence, must be likely to have an important influence on the result, and must be apparently credible although not incontrovertible. Saribal [2002] EWHC 1542 (Admin), which adopted this approach, had been approved in TB and should be followed.

4. The Secretary of State had statutory power under paragraph 2A(8) of Schedule 2 to the Immigration Act 1971 to cancel leave in the circumstances specified by rule 321A(2) of the Immigration Rules. The practical effect was equivalent to revoking indefinite leave.

5. The Upper Tribunal reviewed the decision through the prism of the Ladd v Marshall criteria. Those criteria were consistent with TB. Permission to appeal did not extend to the Upper Tribunal’s application of the criteria to the facts, so that application was not open to challenge.

6. Parliament had removed the former right of appeal against this category of immigration decision. The court had to respect that legislative choice, notwithstanding the serious consequences of disputed allegations of fraud. The remaining remedy was judicial review on public law grounds, not an independent factual rehearing. Ahsan [2017] EWCA Civ 2009 concerned an existing out-of-country appeal right and was materially different.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2019] EWCA Civ 550. The Upper Tribunal had applied the correct fresh-evidence test.
2. Upper Tribunal (Immigration and Asylum Chamber): The judicial review claim was dismissed on 13 December 2017. The tribunal found the three Ladd v Marshall requirements satisfied and rejected the procedural unfairness ground.
3. First-tier Tribunal: On 11 June 2012, the tribunal allowed the appellant’s appeal against refusal of indefinite leave to remain. Indefinite leave was subsequently granted.