Procedural fairness fails entrepreneur in Court of Appeal

R (Taj) v The Secretary of State for the Home Department [2021] EWCA Civ 19 (20 January 2021) 

Genuineness of intention is a key part of obtaining a visa to the UK. This appeal related to the closed (in March 2019) Tier 1 (Entrepreneur) Migrant route operated under the points-based system (PBS) of yesterday. This appeal turned on the application of the common law principle of procedural fairness to the PBS for deciding whether a person should be granted leave to remain in the UK as a Tier 1 (Entrepreneur) as set out under Paragraph 245DD of the Immigration Rules. In particular, the appeal concerned the applicability of the fifth and sixth of the famous principles of administrative fairness articulated by the House of Lords in Doody [1994] 1 AC 531 to the PBS which concern the right of a person affected by a decision to make representations to the decision-maker before the decision is taken and the right to know the “gist of the case that he has to answer”. In Doody it had been stated “that fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.” Further, “since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.”

Mr Taj was a citizen of Pakistan who was granted entry to the UK as a Tier 4 (General) Student in December 2009 valid until February 2011 which he renewed until November 2011. Subsequently, he got a Tier 1 (Post-Study) visa until December 2013 and he was then granted leave in the Tier 1 (Entrepreneur) category until February 2017. Later he applied for leave to remain under the Tier 1 (Entrepreneur) category. Consequently, an interview and site visit took place in 2017 at the trading address specified for the business relied upon in his application (T2MC Limited). The address was in Ilford, an estate agent office on the main high street with a conventional windowed shopfront advertising some properties (signed Swiss Estates). The real registered address for T2MC Ltd was Mr Taj’s home address, which was different to the trading address. The application was refused in April 2018. The decision-maker did not consider Mr Taj to be a director of one or more genuine UK businesses, that he had had genuinely invested the money referred to in Table 5 of Appendix A into one or more genuine businesses in the UK, and that he intended to continue operating one or more businesses in the UK and did not plan to take employment other than under the permitted terms. The administrative reviewer upheld the refusal and a judicial review challenge was dismissed by the Upper Tribunal. The Court of Appeal held that it was not procedurally unfair that the PBS for deciding whether a person should be granted leave to remain as an entrepreneur did not require the decision-maker to put the applicant on notice of general concerns as to the genuineness of the business in question. 

Upper Tribunal

In judicial review proceedings, UTJ Allen dismissed Mr Taj’s argument that the procedure adopted was unfair because he was not provided an opportunity to know the case that was being made against him. The UT found that were the SSHD to be found to be subject to a duty to put concerns to an applicant prior to an adverse decision, that would prejudice the “efficiency and speed” of the system. The crucial part of the ruling was set out in para 55 where the judge stated “the process that would be required to meet the applicant’s concept of a fair hearing would in my view take the matter outside the required efficiency and speed of the PBS process.” 

Pathan

The Supreme Court’s judgment in R (Pathan) v SSHD [2020] UKSC 41, discussed here, which was handed down after the oral hearing in Mr Taj’s case had ironed out the issues in this case. In Pathan the Supreme Court held by majority that on the facts of that case, there had been a breach and the justices addressed principles of procedural fairness. Mr Taj submitted that in Pathan the Supreme Court confirmed that the principles of fairness set out in Doody applied to the PBS and that the failure to afford him an opportunity to address concerns meant that the procedure was unfair. 

While Mr Pathan’s application was in the process of being considered, the Home Office revoked his employer Submania Ltd’s sponsor licence. Consequently, he was not able to satisfy the requirements of paragraph 245HD(f) of the Immigration Rules – i.e. a valid Certificate of Sponsorship – and so his application for leave to remain was refused. The principal issue was whether the decision-maker’s failure to communicate the revocation to Mr Pathan was reviewable in public law on the grounds that it amounted to a violation of the rules of natural justice – procedural unfairness – which entail an opportunity to be heard on any material information which the SSHD decision-maker acquires and which was unknown to the applicant. Overall, the Supreme Court unanimously judged that the SSHD breached her procedural duty to act fairly by failing promptly to notify Mr Pathan of the revocation of his sponsor’s licence. 

The Court of Appeal 

Peter Jackson, Green and Males LJJ dismissed Mr Taj’s appeal and Green LJ developed the following general conclusions on procedural unfairness and the PBS in his judgment in light of Pathan. First, that the principles of administrative fairness detailed in Doody applied to the PBS, but the manner of their application would be fact and context specific as seen recently in Topadar v SSHD [2020] EWCA Civ 1525, discussed here. Second, the principles of procedural fairness provided support to the important public interest values of fundamental justice and the promotion of the rule of law whereby decision-makers should hear from those who had something to say. Thirdly, because of the broader, public interest, reasons for the principle of procedural fairness, the courts do not undertake any detailed examination of whether had the breach not occurred, it would have made any difference. Fourthly, the principles of procedural fairness applied to systematic, as well as operational failings. Fifthly, a challenge based upon procedural fairness does not have to be linked to a substantive challenge, for example a rationality challenge. Finally, it was apparent that administrative convenience and cost did not amount to a justification for procedural fairness. 

Next, the Court of Appeal turned its attention to the issue of whether there was a duty to put an applicant on notice of general concerns. By use of the expression “general” the court was referring to concerns which arise regardless of whether the applicant’s account is considered to be truthful or not. As the Pathan judgment made clear, the application of the requirement of procedural fairness is fact and context sensitive. It was the court’s view that UTJ Allen did not err and he correctly concluded that the PBS fell on the right side of the fairness line. It was not unfair that the PBS did not incorporate a requirement on the decision-maker to put an applicant on notice of general concerns as to the genuineness of the application and the business in question. 

The reasoning for this opinion was as follows. First, the principles of procedural fairness concerned substance and not form; what mattered was whether an applicant, in substance, could establish that the business was genuine. In the present case, the judge had adopted a rounded analysis of the evidence. Second, unlike the situation of the applicant in Pathan, Mr Taj had both access to and control over every fact relevant to the success or failure of his application. In comparison to Mr Taj’s case, Green LJ noted that in Pathan the crucial evidential component of Mr Pathan’s case for leave to remain (the validity of the CoS that accompanied his application) was under the exclusive control of the SSHD who revoked the CoS thereby rendering the application bound to fail without telling Mr Pathan of this fundamental change of circumstances, about which there was nothing that Mr Pathan was able to do and was not at fault. Keeping all this in mind, Green LJ held that:

54. … In my view access and control are key determinants and serve to distinguish between the facts of Pathan and the present case. Unlike in Pathan, here the Appellant had both access to and control over every fact relevant to the success or failure of his application. The scope of the evidence to be submitted is narrow and exclusively in the possession and knowledge, and therefore under the control, of an applicant, not the state. There is no part of that evidence the validity of which can be stripped away by unilateral state action.

The above approach corresponded with Topadar where in light of Pathan and for similar reasons, the Court of Appeal (Lewis LJ) also distinguished the facts of that case. Third, the system operated was open and transparent and Mr Taj knew the evidence that needed to be provided for the application and the relevance of each evidential matter to the test to be applied. 

Fourth, the court was of the view that it was not unreasonable in such circumstances to expect that the burden of providing the information should lie with the applicant, as it does under the Rules. If a series of inaccurate or incomplete pieces of information are tendered, responsibility fairly lies at the door of the applicant. 

Fifth, the system had been specifically designed to reduce administrative discretion so that  the risk of inconsistent or arbitrary decisions was minimised. Indeed, this was its strength since a routine application should naturally ordinarily lead to a fair outcome. Nonetheless, the system incorporated a necessary degree of flexibility, for e.g. as regards the questions to be asked in interview, which meant that the system was able to adapt to an individual’s circumstances. The UT made the same observation, citing Anjum v SSHD [2017] UKUT 406 the UT had said that some degree of flexibility might be needed to make a PBS fair. 

Sixthly, Mr Taj had every opportunity to prepare for the interview and to bring with him whatever information he chose. Nothing in the system hindered his ability to put together a convincing case. Moreover, if a system was procedurally fair, then a policy that sought to enhance finality and efficiency was a relevant and valid public interest consideration. Further, pre-Pathan authorities gave the impression that the PBS was tough for acceptable policy reasons. Overall, Green LJ said that:

62. I therefore conclude that it was not unfair, systemically, that the PBS did not incorporate, as part of its system, a requirement on the decision maker to put the Appellant on notice of general concerns entertained as to the genuineness of the application and the business in question; and nor was it unfair, operationally, on the facts of the case.

The court then moved on to addressing concerns about truthfulness. Reliance was placed in R (Citizens UK) v SSHD [2018] EWCA Civ 1812, discussed here, where Singh LJ had cited R v Hackney London Borough Council, ex p Decordova (1995) 27 HLR 108 where Laws J put his point in the following way “If the authority is minded to make an adverse decision because it does not believe the account given by the applicant, it has to give the applicant an opportunity to deal with it.” Further, reliance was placed in R (Q) v SSHD [2003] EWCA Civ 364and R (Mushtaq) v ECO  (Islamabad) (ECO – procedural fairness) IJR [2015] UKUT 224 (IAC), in the latter case it was said that “Interviews serve the basic twofold purpose of enabling applications to be probed and investigated” and provide “the applicant a fair opportunity to respond to potentially adverse matters” with the result that “the decision must accord with the principles of procedural fairness”. However, Green LJ was unmoved by these points and he held:

65. In my judgment these authorities do not assist the Appellant. This is for two main reasons. First, the cases cited relate to contexts which are far removed from the present and they do not in any event lay down a hard and fast principle which this court is bound to apply. Second, in any event, the present case is not at its core about the veracity of the applicant but is about the paucity and inadequacy of the evidence submitted concerning the Appellant’s business.

74. In my judgment, the principles of procedural fairness as applied to the PBS in issue do not compel the decision maker to communicate evolving concerns about truthfulness.

The starting point was that the system afforded applicants a full, transparent and informed opportunity to advance their best case to obtain leave to remain. 

The context in this case was very different to that in Q and in Citizens UK as the nature of asylum applications is such that the applicant will be recounting events for which there may be no easy proof. This might cover the reasons for the claim for asylum and as to the methods of travel which brought the applicant to the UK and as to what they have done in the UK since arrival and why. There may be no or sparse documentary or other tangible proof against which to measure and test an applicant’s account. The decision might rest in large measure upon the conclusion of the officer as to the veracity of the applicant and the evaluation of truth may thus necessarily be core to the decision-making process. Notably an entrepreneur’s application for leave to remain was very different from an asylum claim where an applicant might be recounting events for which there may be no easy proof; the proof needed in this case would be largely documentary and the particulars independently verifiable. On proper analysis, Q, Citizens UK and Decordova were different to this case. 

As to rationality, the Court of Appeal concluded that the SSHD was entitled to have real concerns about the genuineness of Mr Taj’s business and that UTJ Allen – based on his careful point by point analysis – was justified in upholding that decision and there was no basis upon which the court could properly interfere with UTJ Allen’s decision. 

It was notable that the business described by Mr Taj in his information and in interview was an insubstantial, thin undertaking with but two clients about whom he could not give accurate details and from whom minimal revenues were generated. 

UTJ Allen had correctly observed that since this was Mr Taj’s second entrepreneur visa application, he ought to have known what level of detail was to be expected of him as the business that was the basis of his application was not new and it had been in existence for some years.

Comment 

This case yet again shows that PBS applicants must be diligent in the first instance and applicants are well advised to have a robust understanding of the system. In addition they should diarise key dates and events and fully prepare for interviews and must keep their affairs in order should they wish to succeed in obtaining leave to remain in the UK. There is a new PBS in place now but the principles established in the cases discussed above still remain good and authoritative law. 

Random references to fairness seem to have done very little to solve Mr Taj’s problems and the outcome in Pathan failed to help him in his hour of need. Indeed, he was unable to convince the court that the key principles of administrative fairness described in Doody applied to the precise facts and specific context of his case. Like Mr Topadar before him, who was a skilled migrant under the PBS, Mr Taj was unable to use the result in Pathan to rescue his failed immigration application. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Court of Appeal, Fairness, Immigration Rules, Judicial Review, Pakistan, PBS, Tier 1, UKSC and tagged , , , , , . Bookmark the permalink.

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