Musarat Bibi, R (on the application of) v The Secretary of State for the Home Department

Public law litigants must plead their grounds clearly and obtain permission before pursuing new grounds. Renewed applications and skeleton arguments cannot be used informally to expand the pleaded case.

Procedural fairness in visitor entry-clearance decisions is context-specific. Where the decision-maker assesses whether an applicant is a genuine visitor under Appendix V of the Immigration Rules, there is no general duty to give advance notice of every credibility concern or invite an explanation before refusal where dishonesty is not alleged under Part 9. A prior visa refusal could therefore be considered without a minded-to process. Under section 16(3C) of the Tribunals, Courts and Enforcement Act 2007, permission must also be refused where it is highly likely that the outcome would have been the same.

The appellant, a Pakistani national, challenged the refusal of her application for entry clearance as a visitor. The application had been refused twice and was then reconsidered pursuant to a consent order following earlier judicial review proceedings.

The Secretary of State’s third decision relied, among other matters, on the appellant’s failure to disclose an earlier visa refusal, family ties in the United Kingdom and concerns about her finances. The appellant sought judicial review, alleging unfairness because she had not been warned that the earlier refusal might be relied upon.

The Upper Tribunal refused permission to proceed, first on the papers and then after an oral renewal. Permission to appeal was granted on the single procedural-fairness ground. The central issues were whether that ground could be pursued when it had not been pleaded and, if so, whether procedural fairness required advance notice or whether any error could have affected the outcome.

1. Disposition and procedural discipline. Andrews LJ, with Snowden LJ and Peter Jackson LJ agreeing, dismissed the appeal. The Court applied the principles stated in R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841: public law litigation requires formal and predictable pleadings, and courts should prevent grounds from evolving without permission. The appellant’s principal ground had never been pleaded, no application had been made to amend the judicial review grounds or the appeal ground, and the replacement skeleton argument substantially recast the case. Permission to appeal did not cure those defects.
2. Scope of reconsideration. The consent order required a fresh decision on the visitor application. It did not confine the Secretary of State to the reasons given in the earlier refusal. The email inviting updated evidence was not a minded-to-refuse letter. The Secretary of State’s procedural obligations were therefore no different from those arising on the initial consideration of the application.
3. Procedural fairness. Fairness is context-specific, as explained in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531. R (Taj) v Secretary of State for the Home Department [2021] EWCA Civ 19 rejected any hard-edged rule requiring an applicant to be warned whenever the decision-maker may disbelieve the applicant’s account. Ashish Balajigari v SSHD [2019] EWCA Civ 673 concerned the different situation where dishonesty or reprehensible conduct was relied upon under paragraph 322(5) of the Immigration Rules. In such a case a written minded-to process may be required. Here Part 9 was not relied upon and dishonesty was not alleged. The decision-maker could consider the inaccurate answer to the specific question about previous visa refusals without first inviting an explanation.
4. Statutory materiality. If the procedural-fairness ground had been properly pleaded, section 16(3C) of the Tribunals, Courts and Enforcement Act 2007 would have required the Tribunal to consider, at the permission stage, whether it was highly likely that the outcome would not have been substantially different. The exceptional-public-interest exception was not suggested. Even on the most favourable counterfactual assumption, the other independent concerns in the refusal letter meant that the appellant would still have failed to satisfy the genuine visitor requirement. The Upper Tribunal was therefore entitled, and in the circumstances obliged, to refuse permission.

• Court of Appeal (Civil Division): Permission to appeal was granted on 18 April 2024 on one procedural-fairness ground. The full court dismissed the appeal on 13 May 2025: [2025] EWCA Civ 622.
• Upper Tribunal (Immigration and Asylum Chamber): UT Judge Frances refused permission to proceed on the papers on 22 June 2023. Following oral renewal, UT Judge Kopieczek refused permission on 20 September 2023.