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

The common law requirements of procedural fairness apply to a points-based immigration system, but their content depends on the facts and context. A fair and transparent system need not give an applicant a further opportunity to answer every concern about the genuineness or truthfulness of an application where the relevant evidence is accessible to and controlled by the applicant.

Rationality review is likewise context-sensitive. Courts should examine material errors, irrelevant or omitted considerations, misconstrued facts and illogical inferences. The margin accorded to the decision-maker depends on the nature of the decision. A structured, fact-specific immigration assessment attracts less latitude than a political, technical or precautionary decision, although a rationality challenge to the routine operation of a fair points-based system ordinarily faces a relatively high hurdle.

The appellant sought further leave to remain as a Tier 1 (Entrepreneur) Migrant under Paragraph 245DD of the Immigration Rules. The Secretary of State refused the application because the supporting material and interview answers raised concerns about the genuineness and viability of his business. An administrative review maintained that refusal.

The Upper Tribunal dismissed the appellant’s judicial review challenge and refused permission to appeal. It held that the structure of the points-based system and the interview had given him sufficient notice of the case to meet. It also held that the refusal was rational.

The appeal asked whether procedural fairness required the Secretary of State to disclose evolving concerns about the genuineness or truthfulness of the application before refusing it, and whether the refusal was irrational.

1. Appeal dismissed. The points-based system was procedurally fair, both systemically and in its operation in this case. The Secretary of State was not required to notify the appellant of the general concerns about the genuineness of his business before deciding the application.

2. The principles in Doody apply to points-based systems, but their application is fact- and context-sensitive. The decisive distinction from Pathan v Secretary of State for the Home Department [2020] UKSC [41] was access to and control of the relevant information. In Pathan, state action removed an essential certificate without the applicant’s knowledge or fault. Here, the evidence about the business was within the appellant’s possession, knowledge and control.

3. The system openly identified the governing requirements, placed the evidential burden on the applicant and provided detailed guidance and an extensive interview. It permitted applicants to present their best case and retained enough flexibility to respond to individual circumstances. Procedural fairness did not require an additional opportunity to cure inadequate or inaccurate evidence.

4. A duty to disclose concerns about truthfulness is not absolute. Its existence depends on context. In asylum and housing cases, credibility may be central and documentary proof sparse. An entrepreneur application should ordinarily rest on documentary and independently verifiable evidence. The truthfulness of the applicant’s oral account therefore need not lie at the heart of the process.

5. Administrative cost or inconvenience cannot justify a procedurally unfair system. Where a system is already fair, however, finality, speed and efficiency are legitimate public-interest considerations when deciding whether unnecessary procedural layers should be added.

6. The traditional formulation requiring a decision to defy logic or accepted moral standards risks setting the rationality threshold too high if used without qualification. Modern review asks whether the decision-maker relied on irrelevant considerations, omitted relevant ones, misconstrued a key fact, drew illogical inferences, or otherwise reached a conclusion unavailable to a reasonable decision-maker. The appropriate margin of judgment depends on the nature and context of the decision.

7. The refusal was rational. Although the difference between “Avid Support Limited” and “Avid Support Ltd” was immaterial, substantial concerns remained about inconsistent addresses and ownership details, the absence of an online presence, the explanation of services, regulatory and health-and-safety compliance, and the size of the office. Those matters justified the finding that the business had not been shown to be genuine.

• Court of Appeal (Civil Division): The appeal was dismissed by the court unanimously: [2021] EWCA Civ 19.
• Upper Tribunal (Immigration and Asylum Chamber): Tribunal Judge Allen dismissed the judicial review claim, refused permission to appeal and upheld the Secretary of State’s decision. The perfected judgment was promulgated on 18 June 2019; no neutral citation is stated.
• Administrative review: The Secretary of State maintained the refusal on 16 May 2018.