Ashrafuzzaman, R (on the application of) v Entry Clearance Officer

In a judicial review of a refusal under paragraph 320(7A) of the Immigration Rules, dishonesty is not a precedent fact for the Tribunal to determine afresh. The Tribunal’s role is ordinarily supervisory and is limited to asking whether the decision-maker was lawfully entitled, on the material available at the time, to find dishonesty.

The position differs where an ECHR right is engaged. In that event, the Tribunal must determine the human-rights issue on its merits, including any factual issue concerning dishonesty. A later explanation or evidence cannot ordinarily be relied upon in a conventional judicial review if it was not before the decision-maker. A broadly worded question asking whether an applicant has family in the UK may reasonably include siblings, and the presence of family may be material to assessing a student’s intention to leave.

The applicant challenged the refusal of entry clearance as a Tier 4 (General) Student under paragraph 320(7A) of the Immigration Rules and the subsequent Administrative Review decision. He had answered that he had no family in the UK, but later disclosed that he had a sister living near Heathrow. The respondent found that he had dishonestly failed to disclose a material fact.

Following permission proceedings and remittal from the Court of Appeal, the Upper Tribunal was required to determine whether it had to decide dishonesty for itself, whether post-decision evidence could be considered, and whether the respondent’s assessment was lawful. The central issue was the proper scope of judicial review where dishonesty is relied upon under the general grounds of refusal.

1. Precedent fact. The judicial review challenge was refused. Paragraph 320(7A) did not make dishonesty a precedent or jurisdictional fact. Under R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784, the Secretary of State or immigration officer determines the relevant facts when exercising the power under section 3 of the Immigration Act 1971. The Tribunal therefore applied conventional Wednesbury review rather than conducting a full merits assessment (paras 57–69, 77–80).
2. ECHR qualification and evidence. Where an ECHR right is engaged, the Tribunal must determine the human-rights issue on its merits, including any material factual issue concerning dishonesty. That qualification, recognised in Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673 and Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009, did not apply because no Article 8 claim was engaged. The Tribunal could not consider the applicant’s explanation about advice from an agent because it was first advanced after the challenged decisions (paras 70–81).
3. Dishonesty. The legal burden remained on the respondent. The applicable process required evidence sufficient to raise dishonesty, an innocent explanation meeting the minimum level of plausibility, and, if that burden was discharged, rejection of the explanation on the balance of probabilities. The inconsistent answers were sufficient to raise the issue. The respondent engaged with the explanations and was rationally entitled to reject them (paras 82–90).
4. Family and materiality. The application-form question asking whether the applicant had any family in the UK was broad, clear and non-exhaustive. On its ordinary meaning it included siblings. The respondent was entitled to treat the existence of a sister in the UK as a material fact relevant to assessing whether the applicant genuinely intended to leave after his studies (paras 91–107).
5. Procedural fairness and order. The second interview put the credibility concern expressly to the applicant and gave him a fair opportunity to respond. The procedure complied with the guidance considered in R (Mushtaq) v Entry Clearance Officer [2015] UKUT 224 (IAC) and R (Anjum) v Entry Clearance Officer [2017] UKUT 406 (IAC). The respondent’s decision was lawful and the judicial review challenge was refused (paras 108–112).

• Court of Appeal: Permission to appeal was granted by Lady Justice Rose on 3 November 2020. The matter was remitted to the Upper Tribunal by consent on 8 March 2021, with greater clarity required concerning Home Office guidance on the meaning of family.
• Upper Tribunal: Permission was granted to amend the claim to challenge the Administrative Review decision, limited to dishonesty. The Upper Tribunal determined the precedent-fact issue in the respondent’s favour and refused the judicial review challenge.