Baldha & Anor, R (On the Application Of) v The Secretary of State for the Home Department

Where an appeal seeks to introduce grounds that were not advanced below, the Court of Appeal must ask whether the lower court was wrong on the case actually presented. An appellant cannot ordinarily abandon that case and replace it with new challenges under the same proceedings, particularly where the new issues have not been considered by the decision-maker or tribunal. The cessation of statutory leave under section 3 C of the Immigration Act 1971 after an applicant leaves the United Kingdom does not, by itself, establish unfair disadvantage requiring reinstatement or return. Access to justice is assessed by reference to the practical circumstances of the individual case. An out-of-country remedy may be adequate, including where an article 8 claim or appeal is contemplated.

Two linked judicial review claims concerned refusals of indefinite leave to remain under paragraph 322(5) of the Immigration Rules. The Secretary of State considered that discrepancies between income declarations to the Home Office and HMRC showed dishonesty. Upper Tribunal Judges Kebede and McGeachy refused permission to proceed, holding that the dishonesty conclusions were unarguably open to the Secretary of State.

The applicants appealed. After Balajigari, the Secretary of State accepted that the refusal decisions should be withdrawn or quashed and lawfully remade through a procedure allowing further evidence and submissions, including on dishonesty and article 8. The issues were whether the appeal grounds should be amended, whether permission to appeal should be granted, and whether the applicants should be allowed to return to the United Kingdom while the applications were reconsidered.

1. Applications to amend and permission to appeal. The original challenge was confined to whether the Secretary of State was entitled to find dishonesty on the evidence. The Upper Tribunal judges were unarguably right to reject that Wednesbury challenge. The proposed amendments abandoned the case advanced below and introduced procedural fairness and article 8 grounds for the first time in this court. That was not an appropriate or sensible way to proceed, especially because those matters had not yet been determined by the Secretary of State or the First-tier Tribunal. The applications to amend were therefore refused and permission to appeal was refused in each case.
2. Section 3 C leave. Section 3 C(3) of the Immigration Act 1971 provides that leave extended by section 3 C lapses when an applicant leaves the United Kingdom. The applicants had left voluntarily. The statutory cessation applied even though the refusal decisions were legally erroneous. Withdrawal of those decisions could not resurrect the statutory leave, although the outstanding applications had to be considered without treating the applicants as overstayers in accordance with the Secretary of State’s guidance.
3. Return and access to justice. The fact that section 3 C leave had ended did not itself amount to the disadvantage required to justify reinstatement of leave or a mandatory order for return. The relevant question was the practical disadvantage in the particular circumstances. The applicants remained represented and were able to participate remotely from India. There was no compelling evidence that they could not pursue reconsidered applications or any further claims effectively from outside the United Kingdom. Access to justice remained protected by the common law and article 6 of the ECHR, and any later need for return could be addressed if a real issue arose.
4. The Secretary of State’s acceptance that the original decisions were unlawful meant that the applications would be reconsidered under a procedurally fair process. The agreed costs order required payment of the applicants’ costs from the dates when procedural unfairness was first alleged, with no other order as to costs apart from the costs of the hearing, which the applicants were ordered to pay.

• Court of Appeal (Civil Division): refused permission to amend and refused permission to appeal in both linked cases.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kebede refused permission to proceed in Baldha on 21 September 2018; Upper Tribunal Judge McGeachy did so in Dhamodharan on 27 September 2018, holding that the Secretary of State’s dishonesty findings were unarguably open to her.