Akram, R (On the Application Of) v Secretary of State for the Home Department

Reopening a final determination under CPR rule 52.30 is an exceptional jurisdiction. All three conditions in rule 52.30(1) must be met: reopening must be necessary to avoid real injustice, the circumstances must be exceptional and make reopening appropriate, and there must be no alternative effective remedy. A prior decision being wrong is insufficient; there must be a powerful probability that the result would have differed because the earlier proceedings were critically undermined. In dishonesty-based refusals under paragraph 322(5) of the Immigration Rules, procedural fairness does not invariably require an interview. A proper opportunity to explain the discrepancy may suffice, provided the material is considered and undesirability and residual discretion are addressed.

The applicant’s application for indefinite leave to remain was refused under paragraph 322(5) of the Immigration Rules because of an alleged discrepancy between income declared to the Secretary of State and income declared to HMRC. The Upper Tribunal refused permission to proceed with judicial review on 16 November 2016. The Court of Appeal refused permission to appeal on 18 July 2017.

Following the decision in Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673, the applicant sought to reopen the first appeal under CPR rule 52.30. He relied on alleged procedural unfairness and failure to consider undesirability and residual discretion. The central issue was whether those matters created a sufficiently exceptional case involving real injustice to justify reopening.

1. Application refused. Per Hickinbottom LJ, with Carr LJ agreeing, the requirements for reopening the final determination were not met. CPR rule 52.30 requires all three conditions to be satisfied before the court has power to reopen. The jurisdiction is exceptional and rare. Mere error is insufficient; there must be a powerful probability that the decision would have been different because the integrity of the earlier proceedings was critically undermined, and the injustice must outweigh the pressing claim of finality.
2. The procedural fairness complaint did not establish real injustice. Although Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673 emphasised the need to give an applicant a proper opportunity to respond to suspected dishonesty, an interview was not indispensable. The applicant had explained the discrepancy in his application and administrative review, supplied supporting material, and relied on the same matters later. The decision-maker considered those submissions. The absence of a separate minded-to-refuse procedure therefore caused no possible injustice.
3. Paragraph 322(5) of the Immigration Rules required the decision-maker, after finding dishonesty, to consider whether the applicant’s presence was undesirable and whether the residual discretion should nevertheless be exercised in his favour. The refusal and administrative review decisions made clear findings on both matters. The applicant’s single-year under-declaration, compliance in other years, otherwise good character and length of residence were either expressly or effectively taken into account.
4. The later acceptance that a different 2017 refusal was unlawful did not assist. That decision was in materially different terms, was reconsidered by consent without an admission of a specific defect, and could not establish injustice in the 2016 decision. The pending further application and the delay in seeking reopening were additional factors against the application.

1. Court of Appeal (Civil Division). On 12 August 2020, the court refused the application to reopen the final determination under CPR rule 52.30: [2020] EWCA Civ 1072.
2. Court of Appeal (Civil Division). On 18 July 2017, Hickinbottom LJ refused permission to appeal against the Upper Tribunal’s refusal of permission for judicial review.
3. Upper Tribunal (Immigration and Asylum Chamber). Upper Tribunal Judge Kebede refused permission to proceed with judicial review on 16 November 2016. Judge Gleeson had previously refused permission on the papers on 13 September 2016.