Challenge to refusal of visitor visa dismissed by Court of Appeal

An unhappy Court of Appeal has warned against the “the type of informal case expansion that was deprecated by this Court in R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841” and reminded litigants of the need to make formal applications when wanting to amend grounds. The case is R (Bibi) v Secretary of State for the Home Department [2025] EWCA Civ 622.

Background

The appellant is a Pakistan national who was refused entry clearance as a visitor on 15 July 2021, having also been refused on 15 July 2008 and 7 March 2010.

A pre action letter was sent on 11 October 2021 and the judicial review lodged two days later, just ahead of the three month limitation period for judicial reviews. On 19 October 2021 a response was sent on behalf of the Home Secretary stating that the refusal was withdrawn and would be reconsidered. Permission for the judicial review was refused.

On 29 November 2021 the application was refused again, following the reconsideration. One of the reasons given was the absence of evidence in relation to rental income, even though this had been provided. The application for judicial review had been renewed to an oral permission hearing and the appellant was granted permission to proceed with a challenge to the November 2021 decision based on the failure to take this evidence into account.

The grant of permission also referred to it being arguable that an inference drawn by the decision maker that the appellant had sold jewellery to pay for her trip was procedurally unfair for failure to raise these concerns with the appellant. This argument was not in the grounds or the skeleton argument, the Court of Appeal assumed that it was raised at the oral hearing.

Following the grant of permission, the Home Secretary again agreed to reconsider the decision and to make a new decision within two months. A consent order to that effect was sealed on 4 October 2022.

On 7 October 2022 an email was sent by the Home Office to the appellant’s lawyer asking for up to date evidence and information on any change of circumstances since the entry clearance application had been made. The legal representatives replied stating that it would be “misleading and out of the vires of the consent order to treat this as a completely fresh application”. The response also said that there was no change in circumstances and that the appellant would be willing to address any further issues if needed.

The application was refused again on 26 October 2022. Despite the previous refusals, the appellant had ticked “no” to the question of whether she had ever been refused a visa. This was one of the reasons given by the decision maker in concluding that the appellant was not a genuine visitor. Queries were also raised about the appellant’s finances and her family ties in Pakistan.

The decision under appeal

On 11 January 2023 she issued another application for judicial review in the Upper Tribunal.

The first ground for judicial review was that it was “fundamentally unfair” for the Home Secretary to raise three grounds for refusal that had not been raised previously when considering the same application, this included the sale of the jewellery. The third ground was that it was “fundamentally unfair and possible an abuse of process” for the application to be refused for reasons that the Upper Tribunal had granted permission to challenge in the previous judicial review, namely the selling of the jewellery.

In response to ground one, it was submitted on behalf of the Home Secretary that two of the supposedly new reasons for refusal had also been considered in the November 2021 decision. It was also submitted that the Home Secretary was entitled to rely on the failure to disclose the previous refusals, even though this had not been done in the earlier decisions.

The Home Secretary also pointed out that grounds one and three were factually inconsistent as one ground claimed that the sale of the jewellery had not been raised by the Home Secretary before and the other relied on the fact that it had been.

The Home Secretary also asked the Upper Tribunal to consider section 16(3C) of the Tribunals, Courts and Enforcement Act 2007 and to refuse permission on the basis that it was “highly likely that the outcome for the applicant would not have been substantially different” had it not been for the conduct complained of.

Permission was again refused on the papers and renewed to an oral hearing. The renewal form stated that it had been procedurally unfair for the Home Secretary to have relied on the failure to disclosure the previous refusals without putting the appellant on notice that the point was being considered, and the appellant relied on Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673. No application was made by the appellant to amend the claim to include this ground.

The Upper Tribunal refused permission for the judicial review on 20 September 2023, finding that there was no arguable merit to any of the pleaded grounds. The judge did not address the new Balajigari point as raised in the renewal of permission and the skeleton argument. Nor did the judge address section 16(3C) of the 2007 Act.

The Court of Appeal

The appellant applied for permission to appeal. Permission was granted on the ground that “the appellant was not put on notice that her failure to refer to the refusal of a visa in 2010 might be taken into account and so was not given an opportunity to comment on the point”, i.e. the point that had not been formally pleaded. The other grounds were refused permission.

The court reiterated that neither the renewal grounds nor the skeleton argument are the place to raise new points or amend the grounds without making an application for permission to do so. The new ground was expanded on again at the hearing, the court referring to this as “a different and much wider (but still unpleaded) ground).

I have no hesitation in concluding that the appellant should not be allowed to raise this new unpleaded argument for which permission to appeal was neither sought nor granted, and that we should therefore refuse to engage with its substance. There is no unfairness to the appellant in taking this course. This argument involves a complete recasting of her case in a manner which has very wide implications (including practical implications) for the whole system of refusing applications under Appendix V of the Immigration Rules.

On the unpleaded ground for which permission had been granted, the court said that the Upper Tribunal judge was not wrong for not addressing the unpleaded ground. However, in fairness to the appellant, the court went on to consider the point and said that it was not satisfied that it met the threshold for a grant of permission for judicial review. The court also held that it was “at least” highly likely that the outcome would have been the same and that permission should have been refused on this ground as well under section 16(3C) of the 2007 Act.

Conclusion

After three refusals preventing her from coming to the UK to visit her sons, it is easy to understand why the appellant took the course she did. It is unfortunate for her that the case has ended the way that it has, as there were certainly mistakes made on both sides.