Procedural unfairness arguments unlikely to help in Points Based System refusals

The Court of Appeal has held that there is no right based on procedural fairness for a migrant to be offered a chance to cure deficiencies in his or her Points Based System application before it is refused. The case is R (Taj) v Secretary of State for the Home Department [2021] EWCA Civ 19. Practitioners considering such challenges may wish to note the two-stage test set out in the judgment of Lord Justice Green.

Facts

Mr Taj appealed against refusal of his application for permission to remain in the UK as a Tier 1 (Entrepreneur). The main reason for refusal was that he failed the “genuineness test”. This is a subjective test to establish whether an applicant has taken over or become a director of a genuine business in the UK. The Home Office, having conducted an interview and site visit, concluded that no genuine business existed here.

Mr Taj challenged that decision as procedurally unfair, arguing that he ought to have been put on notice of any concerns or inconsistencies regarding his application so that he could attempt to resolve them before the decision was made.

Pathan distinguished

The appeal was heard just ten days after the decision in Pathan [2020] UKSC 41, where the Supreme Court allowed a procedural unfairness challenge to another Points Based System decision. Mr Taj’s lawyers quickly updated their submissions and argued that, by analogy to the facts of that case, procedural unfairness applied here too. 

Lord Justice Green distinguished the two cases on the facts. Mr Pathan had submitted an extension of his Tier 2 (General) work visa with a valid certificate of sponsorship from his employer. While his application was pending, the Home Office revoked his employer’s sponsor licence. Mr Pathan was left unlawfully resident in the UK with no warning and without a right of appeal.  

As Green LJ put it:

In Pathan a critical evidential component of the applicant’s case for LTR (the validity of the CoS) was under the exclusive control of the Secretary of State who revoked the certificate thereby rendering the application for LTR bound to fail without telling the applicant of this fundamental change of circumstances. There was nothing that the applicant could do about this and he was not at fault…

He then set out a two-stage test for assessing procedural fairness in Points Based System cases:

It is clear from the judgments [in Pathan] that key determinants of fairness will focus upon: (a) who has access to the information needed to support an application for LTR [leave to remain]; and (b) who has control over that information. 

Unlike Mr Pathan, the court held, Mr Taj had both access to and control over every aspect of his application. The criteria he had to meet were laid out for him in the “open and transparent” Immigration Rules and guidance: “the Appellant knew full well the evidence that needed to be provided and the relevance of each evidential matter to the test to be applied”.

Green LJ admitted that this approach can lead to unfair and harsh results but cited pre-Pathan cases such as Talpada and Mudiyanselage to maintain that “this is an acceptable trade-off for a system which is clear precise and predictable”. Mr Taj’s appeal failed.

Unfair, but not procedurally unfair

The message seems to be that the burden of providing information belonged to Mr Taj, and it is therefore fair and reasonable that the decision-maker was not required to notify him about the concerns with his application before refusing it.

We all know that the Immigration Rules and guidance are not open and transparent in nature. To expect an individual to navigate this mayhem is objectively unfair. But it seems that is what the courts expect people to do, the Pathan case notwithstanding.