Malik Riaz Hussain & Anor. v Secretary of State for the Home Department

When a visitor’s visa is cancelled because exclusion is conducive to the public good, the respondent bears the burden of proof. The civil standard applies, but serious allegations require evidence of sufficient strength and quality, assessed with critical and anxious scrutiny. No criminal conviction is required under paragraphs V 3.3 and V 9.6 of the Immigration Rules. Relevant evidence may be assessed cumulatively; each strand need not independently establish misconduct. A rational conclusion may draw on judicial findings, investigative material, financial arrangements and the applicant’s position within a company, provided the material links the applicant to the conduct. The appeals were dismissed.

The appellants, Pakistani nationals and father and son, held long-term UK visit visas. The respondent cancelled them under paragraphs V 9.6 and V 3.3 of Appendix V of the Immigration Rules, relying on evidence concerning Bahria Town, including Pakistani Supreme Court judgments, a Joint Investigation Team report, a National Accountability Bureau Reference and National Crime Agency account-freezing proceedings.

The Upper Tribunal dismissed the judicial review claim in a judgment dated 17 November 2020, holding that the respondent was entitled to find the evidential burden satisfied and that the decisions were not irrational. The Court of Appeal granted permission on seven grounds, principally challenging the reliance on, and cumulative assessment of, the evidence. The central issue was whether the cancellation decisions had a rational evidential basis.

1. The appeals were dismissed unanimously. The Upper Tribunal had correctly concluded that the respondent’s cancellation decisions were not irrational.

2. The respondent had a broad discretion under paragraphs V 3.3 and V 9.6 of the Immigration Rules. The respondent bore the burden of proof. The civil standard applied, but the seriousness of the allegations had to be reflected in the strength and quality of the evidence, which required critical and anxious scrutiny. The consequence here was inability to visit the UK, rather than removal or expulsion.

3. The respondent was entitled to place substantial weight on the majority judgments of the Supreme Court of Pakistan. Their non-criminal character and the existence of a dissent did not invalidate the detailed factual findings and inferences concerning the Karachi land transactions. The Implementation Bench’s acceptance of Bahria Town’s offer to pay Rs 460 billion demonstrated the gross undervaluation identified in the majority judgments. The guarantees provided by the appellants supplied a direct connection between them and the relevant proceedings.

4. The Joint Investigation Team report was prosecutorial in character but detailed and based on an extensive investigation. It could properly be relied upon after critical scrutiny. The National Accountability Bureau Reference concerned different land, but demonstrated the same pattern of conduct involving the same company or individuals. The National Crime Agency proceedings did not independently add evidential weight to the Pakistani material, but provided an additional link between the appellants, their family and the Supreme Court proceedings. The voluntary settlement and return of the frozen funds were relevant.

5. The evidence had to be considered cumulatively rather than piece by piece. The majority Pakistani judgments, the increased land payment and the detailed Joint Investigation Team report together provided evidence of sufficient strength and quality to support the conclusion, on the balance of probabilities, that each appellant had been involved in corruption and financial or commercial misconduct. No criminal conviction or finding of a specified criminal offence was required. The appellants’ senior positions and significant association with Bahria Town rationally supported an inference that they had knowledge of its operations, notwithstanding differences in the evidence against each appellant.

6. Lord Justice Nugee, in a concurring judgment, added that circumstantial evidence may be stronger in combination than in its individual parts and that it was unnecessary to ask whether any single strand would have sufficed. Lord Justice Snowden agreed with both judgments. The seven grounds of appeal therefore failed.

1. Court of Appeal (Civil Division): Appeals dismissed on 26 November 2021. [2021] EWCA Civ 2781.
2. Upper Tribunal (Immigration and Asylum Chamber): Judicial review claim dismissed in a judgment dated 17 November 2020, JR/968/2020 (V).