The Court of Appeal recently dismissed a Pakistani immigrant’s appeal against the refusal of his judicial review claim challenging the decision to cancel his Indefinite Leave to Remain (ILR) in the UK. Controversially, the ruling imports into immigration law the legal test in Ladd v Marshall  EWCA Civ 1 applicable to the admission of new evidence in private law cases and, on the basis of an anonymous tip-off, it strangely unlocks the door to the finality of unappealed tribunal decisions which are meant to be binding on the parties. Despite the present Pakistani appellant’s fraudulent behaviour, which probably justifies the harsh result in his case, the outcome will allow the Home Office to simply disregard tribunal decisions where it lost and did not bother to appeal. The approach is problematic because it enables decision-makers to unilaterally change settled judicial findings without affording any right of appeal. Ladd v Marshall articulates a three-part test. First whether the evidence now relied upon could with reasonable diligence have been discovered earlier prior to the trial. Second, whether that evidence was likely to have had an impact on the case, namely that it had an important if not necessarily decisive influence in the decision. Third, the evidence must be apparently credible although not incontrovertible. Mr Rehmat Ullah applied for ILR in November 2011 on the basis of having been in the country for 14 years. The application was refused in March 2012.
However, FTTJ Turkington allowed his appeal in June 2012 and ILR was granted to Mr Ullah as the Home Office accepted the decision and did not appeal. But later in 2013, an unknown person sent a “denunciation” of Mr Ullah to the Home Office which brought into question the past basis upon which he had applied for ILR in 2011 and on which the FTT had found in his favour. In March 2016, his leave was cancelled and these judicial review proceedings raised the rather tricky question of the principles arising when, after initially unsuccessfully resisting an appeal to the FTT from a decision to grant ILR, the Home Office thereafter finds fresh evidence suggesting that the original claim to ILR had been fraudulent. It was alleged that Mr Ullah had obtained a passport and visas under a date of birth different to that provided in the application for ILR. In defence of the judicial review claim, the Home Office provided photocopies of passports issued in November 2000 and in December 1995, with an original entry of a birth date of 4 January 1952, which had been changed to 20 February 1960. After receiving his ILR, Mr Ullah twice visited Pakistan in 2013 and encountered no problems with immigration officials on return to the UK.
But things changed drastically when on his return to the UK on 16 January 2016 he was detained, interviewed and informed that he had not resided in the UK for 14 years at the time of his ILR application because on 10 June 2004 he had also made an application in Islamabad for a visitor visa to the UK. He was then granted temporary admission until further investigations, which revealed that passport issued in 2000 was used in entry clearance applications in Abu Dhabi (where it was issued) in 2001 and later also in Islamabad in 2003 and 2004.
Mr Ullah denied making the applications but admitted that the passport issued in 2000 did contain his picture but said that the signature was not his and further claimed that the passport was fraudulent. As for the passport issued in 1995, he blamed the agent who had brought him to the UK in 1996. He said that he had totally lost contact with the agent but failed to explain how the agent had obtained a recent photograph of him. His excuse was that there had been a burglary at his house in Pakistan on an unspecified date. The Home Office cancelled his leave to enter in light of the new evidence.
Notably, section 76 of the Nationality, Immigration and Asylum Act 2002 empowers the Secretary of State to revoke a person’s indefinite leave to enter or remain in the UK if the leave was obtained by deception. Moreover, rule 321A of the Immigration Rules, sets out grounds on which existing leave to enter or remain is to be cancelled at port or while the holder is outside the UK if; firstly that there has been a change in circumstances; secondly that false documents were submitted or false representations were made (whether or not material to the application, and whether or not to the holder’s knowledge) or material facts were withheld.
Furthermore, section 4 of and Schedule 2 paragraph 2A(8) to the Immigration Act 1971 provides that an Immigration Officer may, on completion of any examination of a person under this paragraph, cancel his leave to enter. Prior to the Immigration Act 2014, until 19 October 2014, the revocation of ILR and the cancellation of leave to enter generated a right of appeal which was then replaced by the non-judicial redress of administrative review.
The Court of Appeal
McCombe, Hamblen LJ and Haddon-Cave LJJ held that the UT had rightly dismissed Mr Ullah’s judicial review claim by applying the correct test in reviewing the Secretary of State’s decision through the prism of the criteria in Ladd v Marshall  EWCA Civ 1 which were in no way inconsistent with the point in TB (Jamaica)  EWCA Civ 977 regarding exceptions to the principle that a tribunal’s judicial decision about leave to enter or remain was binding on the parties, and in particular on the Home Office. The court addressed the issues by examining the principle in TB (Jamaica), the change in the law brought about by the Immigration Act 2014 and the power of cancellation.
In addition to TB (Jamaica), McCombe LJ considered the cases of Boafo  EWCA Civ 44 and Saribal  EWHC 1542 (Admin) during the course of his judgment. In Boafo, with comparative facts to the present, an initial refusal of ILR was successfully appealed to the adjudicator who failed to direct that the appeal decision should be implemented. The decision-maker did not appeal the adjudicator’s decision but instead refused ILR again after reconsideration and the Court of Appeal ultimately held that the absence of directions did not deprive the adjudicator’s decision of binding force. Indeed, furthermore, in the absence of an appeal, the adjudicator’s decision was binding on the Home Office and thus ILR had to be granted. While circumstances may arise in which a decision may be reopened if there is fresh evidence (e.g. deception), or where the very nature of the second decision calls for decision on contemporaneous facts as in Yousuf  Imm AR 191, but even then it would be quite wrong for the executive, as a generality, to insist that the matter turned on the presence or absence of directions.
Saribal concerned a Turkish national who won his tribunal appeal but who was not granted leave and was notified of liability as to deportation because the proof of his fraud came to the attention of the Home Office after the appeal process was concluded. Moses J highlighted the principle in Boafo and judged that where the tribunal’s decision is not appealed, that decision can only be impugned on the basis of fresh evidence of fraud which is relevant, credible and not previously available without due diligence within the meaning of the well known principles enunciated in Ladd v Marshall.
In Momin Ali  Imm AR 23, which concerned allegations of identity fraud where one brother had impersonated another brother and where the Court of Appeal quashed the later decision tampering with the grant of ILR after full and final adjudication, Sir John Donaldson MR held that Ladd v Marshall has no place in the context of public law and judicial review. He also stated that issue estoppel and the decision in Ladd v Marshall:
… namely that there must be finality in litigation, are applicable, subject always to the court’s discretion to depart from them if the wider interests of justice so require.
Having searched through the intricate turnings in the authorities, Moses J held in Saribal that the Home Office failed to sufficiently address the question whether the principles in Ladd v Marshall had been satisfied prior to issuing notice of intention to deport in a case where there had been an earlier decision of the Tribunal. His Lordship thus quashed the decision and his approach is authority for the point that if there has been an prior tribunal decision that an applicant is entitled to ILR, in considering whether to take steps which effectively revoke the existing leave, the decision-maker must give proper attention to the Ladd v Marshall principles about the admission of fresh evidence on appeals in legal proceedings. Thus, without due process, the revocation decision is surely liable to be quashed on judicial review. Stanley Burnton LJ held in TB (Jamaica) that:
32. A matter of principle, it cannot be right for the Home Secretary to be able to circumvent the decision of the IAT by administrative decision. If she could do so, the statutory appeal system would be undermined; indeed, in a case such as the present, the decision of the Immigration Judge on the application of the Refugee Convention would be made irrelevant. That would be inconsistent with the statutory scheme.
In paragraph 34, Stanley Burnton LJ referred to Mersin  EWHC Admin 348 and Boafo where the court held that an unappealed decision of an adjudicator is binding on the parties and observed that in Saribal the principle remained that the Home Secretary is not entitled to disregard the tribunal’s decision unless he can set it aside “by appropriate procedure founded on appropriate evidence.” McCombe LJ thought that the following part of Stanley Burnton LJ’s judgment in TB (Jamaica) was critical to the present case:
35. Of course, different considerations may apply where there is relevant fresh evidence that was not available at the date of the hearing, or a change in the law, and the principle has no application where there is a change in circumstances or there are new events after the date of the decision: see Auld LJ in Boafo at . But this is not such a case.
McCombe LJ noted that the first of the different considerations contemplated by Stanley Burnton LJ was directly relevant to the present case, i.e. relevant fresh evidence that was not available at the date of the hearing which the Home Office now made its case on. No change in circumstances and new events after the date of the decision, apart from Mr Ullah’s anonymous “denunciation”, had occurred and heavily favouring the government McCombe LJ held that:
39. Clearly, paragraph 35 of the lead judgment in TB was obiter dictum. Nonetheless, it seems to me that it is entirely in accord with the earlier authorities of direct relevance to our case.
Prior to October 2014, the revocation of Mr Ullah’s ILR would give rise to a right of appeal but now his only remedy was administrative review and, if necessary, a further challenge on public law grounds. So he was deprived of a full factual review but the Court of Appeal pointed out that:
41. However, Parliament has decided that the categories of decision in immigration cases which are to be afforded a route of challenge in the FTT are to be significantly reduced and that is a decision which the courts are bound to respect. Without entering into the merits of the factual dispute in this case, it is perhaps unfortunate that where a person is accused by the SSHD of fraudulent behaviour in an immigration application, which can have very severe ramifications for him or her, he or she is not able to have an independent review of an adverse decision of the facts by a fact-finding Tribunal. But, that is Parliament’s decision. Now the only remedy against the Respondent’s decision and any administrative review is by way of judicial review on public law grounds.
McCombe LJ said that the entitlement to reopen a decision in a case of deception was acknowledged (obiter) in Boafo and he held that as things stood, it was the case that the Home Office had power to cancel Mr Ullah’s leave to enter under paragraph 2A(8) of Schedule 2 of the Immigration Act 1971 in the circumstances set out in rule 321A(2). He went on to hold that:
43. In Saribal, however, Moses J decided that if the SSHD wanted to take a decision of that character, after a decision of a Tribunal importing a right to ILR, his decision making process would have to apply by analogy the principles for the admission of fresh evidence on appeals in legal proceedings (essentially applying the principles in Ladd v Marshall). Otherwise, the SSHD’s decision would be open to challenge on public law grounds. That decision has the approval of this court in TB and, in my judgment, we should follow it.
In Mr Ullah’s case, only the UT’s decision to refuse judicial review was the subject of the permitted ground of appeal, rather than the decisions of March and April 2016 which did not raise any issues on this appeal. The UT had reviewed the decisions through the prism of the Ladd v Marshall criteria and the tribunal judge had therefore set himself the task of applying the correct test in light of TB (Jamaica).
The Court of Appeal declined to entertain a brand new argument mounted upon the totally different factual and procedural circumstances of Ahsan  EWCA Civ 2009 which concerned the adequacy of an “out-of-country” appeal where the criticality of oral evidence and procedures demanded a different course since the point arose in the context of a case where, unlike Mr Ullah’s position, the right of appeal to a tribunal was not in doubt. Thus the appeal was dismissed.
Although McCombe LJ’s decision in this case is highly controversial as it unlocks the door for the Home Office to trample over tribunal decisions where it lost and failed to appeal, Mr Ullah did himself few favours by making trips to Pakistan when instead he could have ended his journey as an immigrant by swiftly joining the community of British citizens.
He would have then enjoyed the protection of a full appeal to the tribunal if a deprivation decision were ever taken against him in light of his fraud. As held in Sleiman (deprivation of citizenship; conduct: Lebanon)  UKUT 367 (IAC), in an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation by means of fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship. In Sleiman, the discrepancy in Mr Sleiman’s date of birth emerged after he had been granted ILR under the Legacy exercise and had obtained citizenship. When he applied for an emergency travel document to return to the UK and presented a Lebanese passport to the UK embassy (his UK passport was surrendered to Hong Kong authorities on charges of money laundering) it transpired that he had lied about his age in his asylum claim so as to be granted discretionary leave as a minor.
Mr Ullah’s case shows that even after getting ILR you are not out of the doldrums as an immigrant because the Home Office can quite easily cancel your settlement rights if it later discovers that fraud was used in obtaining ILR. The huge problem with McCombe LJ’s circular approach in this case is that by disturbing the finality of unappealed tribunal decisions, the Court of Appeal has rather bizarrely opened the door to unrestrained and unpredictable behaviour by the Home Office which will no doubt relish the idea that it is the undisputed master of immigration law rather than the judiciary. And now that the door has been unlocked, to intensify the overall hostility of the immigration environment, Home Office decision-makers will not hesitate to push it open completely by victimising people with historic discrepancies in their ILR cases.