Adil Mansoor, R (on the application of) v The Secretary of State for the Home Department

Where an applicant has already had a fair opportunity before the Tribunal to explain alleged tax discrepancies, and the Tribunal has found dishonesty and considered the discretionary refusal ground, the procedural process required by Balajigari may in substance have been completed. Any failure by the Secretary of State to repeat that process is then immaterial.

A finding of dishonesty may justify granting limited rather than indefinite leave under the long-residence rules. The grant will not be irrational merely because the applicant has British family members and substantial residence. In any event, judicial review relief may be refused where it is highly likely that a lawful reconsideration would not have produced a substantially different outcome.

The applicant had acquired ten years’ lawful residence. The Secretary of State nevertheless alleged dishonesty arising from discrepancies between income declared in immigration applications and to HMRC.

In an earlier appeal, the First-tier Tribunal found that the applicant had knowingly and dishonestly provided inaccurate tax figures. It declined to exercise discretion in his favour under the Immigration Rules, but allowed his human-rights appeal outside the Rules because of the position of his British wife and child. The Secretary of State then granted thirty months’ limited leave rather than indefinite leave.

By this judicial review claim, the applicant contended that the Secretary of State should have granted indefinite leave, that the process in Balajigari [2019] EWCA Civ 673 had not been followed, and that the respondent had acted unlawfully after initially treating the case as within the Balajigari cohort.

1. The application for judicial review was refused. The earlier Tribunal proceedings had, in substance, provided the process required by Balajigari [2019] EWCA Civ 673. The applicant had an opportunity to explain the discrepancies. The judge considered those explanations, found dishonesty, and considered whether discretion should nevertheless be exercised in the applicant’s favour.

2. The relevant process involved more than identifying discrepancies and inferring dishonesty. It required an opportunity to provide an innocent explanation and to raise matters relevant to undesirability and discretion. Those matters had already been addressed in the appeal. The Secretary of State’s later decision could therefore properly proceed on the Tribunal’s findings.

3. Under paragraph 276B(ii) and paragraph 322(5) of the Immigration Rules, the finding of dishonesty provided a proper basis for granting limited leave instead of indefinite leave. The earlier Article 8 outcome did not require a grant of indefinite leave. The erroneous reference in the decision letter to Appendix FM rather than an Article 8 decision outside the Rules was immaterial.

4. The respondent was entitled to conclude that this case should not be dealt with as a Balajigari cohort case. There was no public-law unlawfulness in changing that position in light of the particular facts and the prior finding of fraud.

5. Alternatively, section 31(2A) of the Senior Courts Act 1981 applied. Even taking account of the applicant’s residence, British wife and children, and the respondent’s section 55 duties, it was highly likely that a lawful process would have resulted in the same grant of limited leave.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review application refused.
• First-tier Tribunal: In an earlier human-rights appeal, the Tribunal found dishonesty and declined to exercise discretion under the Immigration Rules, but allowed the appeal outside the Rules because it would be unreasonable to expect the applicant’s British child to leave the United Kingdom. No citation was stated.