Tahir Yaseen v Secretary of State for the Home Department

Under paragraph 276B(ii) of the Immigration Rules, proof of an adverse character or conduct matter does not ordinarily determine whether indefinite leave to remain should be refused. Except in the most extreme cases, the decision-maker must balance the misconduct against all relevant favourable circumstances.

Paragraph 276B(ii) and paragraph 322(5) establish discrete tests. A policy governing paragraph 322(5), including its treatment of dishonesty in earnings-discrepancy cases, does not necessarily govern paragraph 276B(ii). Deliberate and persistent failure to file tax returns may justify refusal without proof of dishonesty, but the applicant's explanation and positive character evidence must be considered.

The appellant, a Pakistani national who had completed ten years' lawful residence, applied for indefinite leave to remain. His application was refused under paragraphs 276B(ii) and 322(5) of the Immigration Rules after he filed three overdue tax returns only when his immigration position came under scrutiny.

The First-tier Tribunal found persistent conduct lacking integrity but made no finding of dishonesty. It dismissed his appeal under paragraph 276B. The Upper Tribunal upheld that decision, notwithstanding the First-tier Tribunal's immaterial error concerning paragraph 322(5).

The issue before the Court of Appeal was whether paragraph 276B(ii) required the adverse character and conduct findings to be balanced against the appellant's favourable evidence and other relevant circumstances.

1. Appeal allowed. The First-tier Tribunal had lawfully found a persistent and deliberate failure to file tax returns, but it moved directly from that adverse finding to refusal. Except in the most extreme cases, where the balance must inevitably fall against the applicant, paragraph 276B(ii) of the Immigration Rules requires a balancing exercise after a sufficient character or conduct issue has been established. The decision-maker must assess the extent and weight of any favourable evidence: per Irwin LJ, Simler LJ and Sir Jack Beatson agreeing.

2. Paragraphs 276B(ii) and 322(5) contain similar language but establish discrete tests that may be applied successively. A policy concerning paragraph 322(5), including the requirement of dishonesty in earnings-discrepancy cases, does not necessarily apply with the same effect under paragraph 276B(ii). The First-tier Tribunal's inaccurate statement of paragraph 322(5) was immaterial because its decision rested on paragraph 276B.

3. A deliberate failure to submit tax returns, undertaken to postpone and potentially avoid paying tax, may amount to conduct justifying refusal of indefinite leave even without an earnings discrepancy or a finding of dishonesty. The applicant must nevertheless have an opportunity to explain. The facts must be reliably established, the procedure must be fair and the case must be assessed on its own merits. Positive considerations must enter the balance.

4. The expression “lack of integrity” may confuse this assessment. As explained in Wingate v Solicitors Regulation Authority [2018] EWCA Civ 366, integrity has acquired a special association with obligations arising from professional or comparable status. In an ordinary character assessment, the expression may be difficult to distinguish from dishonesty.

5. There was at least some favourable material concerning the appellant's work, education, references, lawful residence and subsequent tax conduct. Its extent and effect had not been assessed. The case was remitted for rehearing and performance of the required balancing exercise. The First-tier Tribunal's factual findings were preserved, and the Court expressed no view on the eventual outcome.

1. Court of Appeal (Civil Division): The appeal was allowed and the case remitted for rehearing so that the balancing exercise required by paragraph 276B(ii) of the Immigration Rules could be performed. The First-tier Tribunal's factual findings were preserved.

2. Upper Tribunal (Immigration and Asylum Chamber): On 4 December 2017, Deputy Upper Tribunal Judge Birrell upheld the First-tier Tribunal. The judge found that its erroneous statement of paragraph 322(5) was immaterial because its decision rested on paragraph 276B.

3. First-tier Tribunal: In a decision promulgated on 28 February 2017, Judge Evans dismissed the appeal. The Tribunal found a persistent failure to act with integrity in relation to tax affairs but made no finding of dishonesty.