ZUBAIR AHMAD (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

At the permission stage of a judicial review challenging refusal of citizenship for alleged deception, a claim is arguable where the evidential basis for the alleged deception is materially uncertain. The court may need to determine whether the alleged deception occurred as a precedent fact, rather than merely review the rationality of the defendant’s conclusion. The Home Secretary may bear an initial evidential burden, and relevant application records and certificates may require disclosure. In assessing arguability, the court should examine inconsistencies in the defendant’s own evidence and avoid treating the availability of later evidence as answering the immediate issue. Where permission is granted, the usual order remains costs in the case unless the circumstances of the permission hearing justify a different order.

The claimant challenged decisions dated 20 May 2021 and 18 December 2021 refusing his application for citizenship on bad character grounds. The Secretary of State alleged that he had used a dishonest proxy to take an English-language test dated 19 September 2012 and had relied on that test in support of an application for further student leave made on 3 November 2012.

The claimant denied taking or relying on that test. The Secretary of State relied on a contemporaneous record, while her acknowledgment of service contained a chronology referring only to tests taken in August and September 2011. The central issues were whether the 2012 test had been relied on, whether the case involved a precedent fact for the court to determine, whether further disclosure was required, and whether the decision was unlawful.

1. Permission granted. The claimant showed an arguable case with a realistic prospect of success. There was no clean knockout blow defeating the claim.
2. The critical factual issue was whether the claimant had put forward the 19 September 2012 test in support of his application of 3 November 2012. The court did not presently have the application or a certified test score in the claimant’s name and date of birth.
3. The Secretary of State’s contemporaneous record was relevant but did not, by itself, resolve the issue. The acknowledgment of service, supported by a statement of truth, described reliance on tests taken in 2011 and made no reference to the 2012 test. That inconsistency required investigation and explanation.
4. The authorities discussed a possible precedent fact approach. It was arguable that the court’s function would be to determine objectively whether deception had occurred, applying the relevant burden and standard of proof, rather than merely asking whether the Secretary of State had reached a reasonable and rational conclusion. On that footing, fresh evidence could be considered at the substantive hearing.
5. It was also arguable that disclosure should include the claimant’s 3 November 2012 application and any certificate or other document relating to the 19 September 2012 test which was said to have been in his name and relied on by him. Permission was therefore not limited to the identified grounds concerning precedent fact, evidence, fairness and reasonableness.
6. The substantive claim was directed to a short hearing with all relevant evidence. The appropriate costs order was costs in the case. Although a contested permission hearing may exceptionally justify a costs order against a respondent, the circumstances here did not warrant one.

The judgment records a prior paper decision treating the claim as unarguable. The Administrative Court granted permission for judicial review and directed that the substantive claim proceed to a short hearing. The judgment does not identify a separate lower-court citation.