Muhammad Ashfaq v The Secretary of State for the Home Department

Where a refusal under paragraph 322(5) of the Immigration Rules carries a statutory right of appeal, the appeal ordinarily supplies the procedural opportunity required to answer an allegation of dishonesty. The tribunal must decide the relevant facts afresh, including whether an earnings discrepancy has a credible innocent explanation and whether refusal is justified.

The Secretary of State bears the burden of proving dishonesty on the balance of probabilities. No presumption arises merely from inconsistent earnings figures. A later payment to HMRC does not itself establish past income. Evidence from an accountant alleged to have caused an error will normally be important; without it, the tribunal may find the Secretary of State’s evidence sufficient to prove dishonesty.

The appellant, a Pakistani national, appealed against the refusal of indefinite leave to remain on the basis of ten years’ lawful residence. The Secretary of State relied on paragraph 322(5) of the Immigration Rules, alleging dishonesty arising from discrepancies between earnings stated in immigration applications and tax material.

The First-tier Tribunal dismissed the appeal. It relied on R (Shahbaz Khan) v SSHD and placed the burden of disproving dishonesty on the appellant. Permission to appeal was granted on the use of that authority. The central issue before the Upper Tribunal was whether the First-tier Tribunal had applied the correct burden of proof and, if not, whether the case should be remade or remitted.

1. The appeal was allowed and remitted. The First-tier Tribunal had erred in law by placing the burden of proof concerning dishonesty on the appellant. The Secretary of State bears that burden on the balance of probabilities. The error affected the judge’s evaluation of the evidence, so the decision was set aside.

2. In an appealable paragraph 322(5) decision, the statutory appeal will generally cure the procedural-fairness deficiency identified in Balajigari and others v SSHD [2019] EWCA Civ 673. The tribunal’s role is to decide all relevant facts and whether the refusal should be upheld or reversed. The appeal permits evidence on dishonesty and on article 8, rather than limiting review to the legality of the Secretary of State’s earlier procedure.

3. That conclusion is qualified. An appeal may fail to supply the required opportunity if an unlawful restriction or misunderstanding of the law curtailed the evidence on dishonesty. Whether further evidence is required depends on the facts.

4. An earnings discrepancy establishes no presumption that either the immigration figure or the tax figure was correct. A later decision to pay HMRC does not by itself prove the historical level of income. The tribunal must assess all the evidence, including any credible innocent explanation.

5. Where an appellant attributes the discrepancy to an accountant, evidence from that accountant is important because the allegation bears on the accountant’s professional standing. In the absence of evidence beyond the appellant’s assertion, the Secretary of State’s material may suffice to establish dishonesty. The appeal was remitted to the First-tier Tribunal, before a different judge, for a fresh hearing with potentially fuller accountant evidence.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for an error concerning the burden of proof, and remitted the appeal for a fresh determination.
• First-tier Tribunal: Dismissed the appeal against refusal of indefinite leave to remain under paragraph 322(5) of the Immigration Rules.