The Secretary of State for the Home Department v Muhammad Kamran Abbasi

The Upper Tribunal may invoke Tribunal Procedure (Upper Tribunal) Rules 2008, rule 43 of its own motion. The use of forged or otherwise bogus evidence before the Tribunal is an abuse of process and may be a procedural irregularity under rule 43(2)(d). A decision may consequently be set aside where conscious and deliberate dishonesty concerning material evidence affected the decision, provided that setting aside is in the interests of justice.

In paragraph 322(5) cases, an accountant’s perfunctory letter accepting responsibility for incorrect tax returns will ordinarily carry no material weight unless the accountant gives evidence, supported by a Statement of Truth, explaining the error, compensation and any notification to insurers or regulators.

Muhammad Kamran Abbasi, a Pakistani national, appealed against the refusal of indefinite leave to remain and of his human-rights claim. The refusal relied on discrepancies between earnings declared to HMRC and earnings relied on in earlier Tier 1 applications, and on paragraph 322(5) of the Immigration Rules.

The First-tier Tribunal allowed the appeals, accepting an accountant’s letter which attributed the discrepancies to the accountants. The Upper Tribunal set that decision aside for error of law and, on re-making the appeal, allowed it. Afterward, an accountant named as the author of the material letter gave credible evidence that she had neither written nor signed it. The Tribunal considered whether it could set aside its own earlier decision under rule 43, but the Secretary of State had already granted indefinite leave to remain.

1. Appeal abandoned. The Upper Tribunal could not set aside and re-make its earlier decision. The grant of indefinite leave to remain caused the human-rights appeal to be treated as abandoned under section 104(4A) of the Nationality, Immigration and Asylum Act 2002, thereby ending the Tribunal’s jurisdiction.
2. Rule 43 does not require a party to make an application before the Tribunal may act. The Tribunal may invoke the rule of its own motion. An earlier decision which disposes of proceedings remains such a decision notwithstanding a possible further appeal.
3. Fraud in evidence deployed before the Tribunal concerns the conduct of the proceedings. In the light of the overriding objective in rule 2, forged evidence is capable of being an abuse of process and hence an “other procedural irregularity” under rule 43(2)(d). Where there has been conscious and deliberate dishonesty concerning evidence that was material to the decision, rule 43 may permit the decision to be set aside and re-made, if that is in the interests of justice.
4. The Secretary of State’s possible ability to investigate fraud and to take later action does not restrict the Tribunal’s rule 43 jurisdiction. It may, however, be relevant to the discretionary interests-of-justice assessment. That assessment is fact- and context-sensitive, including the party’s involvement in the wrongdoing and the availability of other procedures.
5. The evidence showed that the accountant whose name and signature appeared on the 2017 letter had no involvement in it. Although rule 43 would otherwise have been available for relevant findings, the prior grant of leave prevented its use. It was for the Secretary of State to decide whether to investigate and whether revocation grounds existed.
6. For future paragraph 322(5) appeals, an accountant’s bare admission of fault for major tax discrepancies is unlikely to receive material weight unless the accountant attends to give detailed evidence by reference to a Statement of Truth. The evidence should explain how the mistake occurred, any compensation, and notification to insurers or professional regulators.

• Upper Tribunal (Immigration and Asylum Chamber): This decision held that the appeal had been abandoned following the grant of leave and could not be re-opened under rule 43.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Chamberlain set aside the First-tier Tribunal decision for error of law and, on re-making, allowed the appeals in a decision promulgated on 10 July 2019.
• First-tier Tribunal: Allowed the appellant’s and his family’s appeals following the refusal of indefinite leave to remain and the human-rights claim.