Abdullah Khan v Secretary of State for the Home Department

In earnings-discrepancy cases under the Immigration Rules, procedural fairness requires the Secretary of State clearly to allege dishonesty, invite a response on the conduct and other relevant matters, and take that response into account. A discrepancy does not reverse the burden of proof or require a further opportunity to elaborate an explanation that has been carefully considered and found inadequate. The decision-maker may assess the applicant’s documentary material in detail and evaluate the evidence cumulatively. Whether future removal is likely is not an automatic consideration in every application for indefinite leave to remain; its relevance depends on the applicable legal framework and the case advanced by the applicant.

The appellant challenged the Secretary of State’s refusal of indefinite leave to remain on the long-residence route. The refusal relied on paragraphs 276B and 322(5) of the Immigration Rules and concluded that he had dishonestly declared substantially different earnings to the Home Office and HMRC in earlier Tier 1 applications and tax returns.

The Upper Tribunal dismissed his judicial-review claim, holding that he had received sufficient notice of the case, that the dishonesty finding was rational, and that the Secretary of State had considered the relevant discretionary factors. The appeal concerned procedural fairness, the alleged reversal of the burden of proof, the rationality of the dishonesty finding, and the treatment of factors relevant to the discretion, including the prospect of removal.

1. Appeal dismissed. The Court held that the requirements of procedural fairness identified in R (Balajigari) v Secretary of State for the Home Department were satisfied. The Secretary of State had clearly stated that she considered the appellant had acted dishonestly, invited a response about his conduct and other relevant factors, and considered his response before deciding.
2. The appellant had received ample notice of the core allegation. The later analysis of his own invoices, bank statements, claimed cash payments, customers and other documents did not introduce a new case. It was an appropriate examination of the material submitted in response to the minded-to-refuse letters. Fairness did not require a third opportunity to elaborate an explanation which had been carefully examined and found wanting.
3. The approach did not reverse the burden of proof. The appellant had to establish, in his applications, that the claimed earnings were genuine. Once invited to explain the discrepancy, it was for him to provide an explanation capable of displacing the inference of dishonesty; the Secretary of State then had to evaluate that explanation, which she did.
4. The dishonesty finding was rational. The Secretary of State was entitled to assess the evidence as a whole, including the substantial discrepancy between declared earnings, the timing of the tax-return amendment, the use of different accountants, the inadequacy of the explanations, the absence of corroboration, and anomalies in invoices, clients, payments and bank transactions. The fact that some matters were stronger than others did not undermine the cumulative assessment.
5. Gornovskiy v Secretary of State for the Home Department concerned a materially different legal and factual context. The likelihood of future removal was not an automatic factor here, particularly where the appellant had not raised it in response to the express invitation to identify matters for consideration.

• Court of Appeal (Civil Division) — Appeal from the Upper Tribunal (Immigration and Asylum Chamber), Case No JR/1081/2021. Appeal dismissed: [2022] EWCA Civ 1654.
• Upper Tribunal (Immigration and Asylum Chamber) — Judicial-review claim dismissed after a substantive hearing. The judgment is identified in the supplied text by case number only.