Hot on the heels of a new consultation on the duty of candour in judicial review proceedings, the Court of Appeal has handed down an important judgment on the same subject: R (on the application of Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416. It is specifically addressed to the claimant’s duty of candour and it endorses the comments of President McCloskey in the earlier Upper Tribunal case of Bilal Mahmood [2014] UKUT 439 (IAC) (FM post: Judicial toolkit for dealing with miscreant immigration lawyers).

The consultation and case also follow on from the high profile referral of a prominent solicitors firm to the SRA for failing to identify a conflict between witness statements relied on in a claim against the Ministry of Defence in the case of Al-Saadoon & Ors v Secretary of State for Defence [2016] EWHC 773 (Admin). The inconsistency was eventually identified but not brought to the attention of the court. See paragraph 130 of the judgment of Foskett J:

In those circumstances no responsible lawyer aware of the 2013 witness statement and conscious of their duties to their client and the court would have felt able to advance the original allegation as if it were their client’s current case unless they had first raised the inconsistency with Mr Muhyi and received instructions from him that the 2013 witness statement was erroneous and that he believed the allegation made in the original unsigned statement to be true. That, however, was exactly what was done.

The failings in disclosure and duty of candour are not all by claimant lawyers. See some stinging criticism of a solicitor at the Government Legal Department in R (on the application of Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin) (FM: Babbage: Court orders release of Zimbabwean foreign criminal, criticises Government lawyers).

All in all, disclosure and candour is a very hot topic right now.

Background to Khan

The context in Khan was an application under the old and now abolished 14 year rule, whereby a person living in the UK continuously for 14 years, some or all of which might be unlawful residence, might qualify for settlement. There were complications in the case because the application was made before the rule was abolished but transitional provisions stated that the new rules were to be applied to outstanding applications.

The application was rejected by the Home Office on the basis of failure to provide “official” documents as proof of residence. An application for permission for juducial review was rejected by Mr Fordham QC on the papers and then by Upper Tribunal Judge Lane at a renewal hearing. Permission to appeal was initially refused by Stanley Burnton LJ but then granted on renewal by Sullivan LJ.

Two other cases were also listed and the Court of Appeal was due to consider the general issue of what documents, if any, were required to prove long residence. In particular, do only “official” documents suffice, and what is the status of non-official but “independent” documents and letters and of letters from neighbours and friends? As has been common in recent years, the Home Office conceded the two other cases, thus in effect preventing the court from dealing with the issue and eliminating the possibility of a precedent unfavourable to the Home Office. This may well have been another strategic concession by the Home Office, but as we see below the Court of Appeal does ultimately give some guidance.

The remaining case, that of Mr Khan, carried on. Permission to appeal to the Court of Appeal had been granted on 25 February 2015. After that date, the Home Office had for the first time noticed a potentially fatal flaw in the evidence relied on by Mr Khan. The Home Office notified the claimant’s lawyers and applied for permission to be set aside and alleged that the claimant and/or his lawyers were in serious breach of their duty of candour.

In short, Mr Khan claimed to have entered the UK unlawfully in 1998 and remained ever since. By its nature, it was not possible definitively to prove the date of entry. At one point, in 2002, an employer had applied for a work permit in order to employ Mr Khan. In answer to question 14 of the work permit application form it was stated that Mr Khan had worked as a Tandoori chef at the Hotel Sarban in Abbottabad, Pakistan between 1998 and 2001. If this was true, it meant that an application based on 14 years of continuous residence was doomed to fail.

Judgment and guidance on claimant duty of candour

Giving the leading judgment, Beatson LJ accepted that neither set of lawyers had noticed the problem raised by the 2002 work permit application but went on to say that he was troubled by the way both parties had pursued the case.

Beatson J restates the duty of candour on respondents to judicial review applications and then at paragraph 39 goes on:

Is there a similar duty on claimants to assist the court with “full and accurate explanations of all the facts relevant to the issue” raised by their application? In this case, was it incumbent on Mr Khan and his legal representatives when making the application to draw the attention of those considering the application for judicial review to the answer to question 14 and the inconsistency between it and Mr Dad’s letter dated 11 December 2011 both of which were submitted with the papers? Does the way in which the statement of facts appended to the form N461 was phrased (see [18] above) create a misleading impression in the context of this application? This is not discussed in Bilal Mahmood’s case and counsel have not been able to put any judicial review decision directly in point before us. Although, in Bilal Mahmood’s case, McCloskey J (at [17]) described the duty of candour as “bilateral in nature, applying fully to all parties to the proceedings”, the cases do not treat the position of the claimant and the respondent, who is under a duty to provide full and accurate explanations of her decisions and her documents, in the same way.

He considers the duty of candour which is well established in without notice applications for injunctions and concludes that (para 42):

…while some general guidance can be obtained from decisions as to the content and extent of the duty of candour in without notice applications for injunctions and similar orders, they are of limited assistance in the present context and caution is needed. First, in those contexts what is sought is an immediate coercive order of the court, and not simply permission. Secondly, applications in those cases are generally made on an urgent basis and the respondent will either have no knowledge at all of it or only limited knowledge shortly before the hearing.

The duty of candour for claimants in contested proceedings is therefore not equivalent or as onerous as in injunction applications. What, then, does it require? There is no pithy statement of the obligation but reading the judgment we can discern:

1. Claimant lawyers must do more than merely furnishing a document containing evidence harmful to their client’s case. They must also draw attention to the problem, otherwise the duty of candour is significantly diluted. Courts and tribunals are under a heavy and growing case load (as are we all of course) and claimants must ensure that the judge dealing with an application has the full picture. See para 45.
2. Where counsel knows something and keeps it from the court or makes a positively misleading statement, that breaches the duty of candour and justifies setting aside a grant of permission to appeal. See para 46.
3. It does not suffice to provide “a pile of undigested documents, particularly in a document heavy case, or where the claimant has knowledge which enables him or her to explain the full significance of a document.” (para 46)
4. It is relevant to consider whether a failure to explain material in a disclosed document which is adverse is an innocent failure in the sense that the the relevance of the material was not perceived (para 46).
5. Where a conflict arises in the evidence relied on, a witness statement or at the very least an explanation in the statement of facts and grounds, is needed. This echoes the comments of President McCloskey in the Bilal Mahmood case (para 47).
6. The duty of candour is a continuing one and any claim must be considered in light of the acknowledgement of service and summary grounds. Where the respondent fails to take a point, as occurred in this case, that might depending on the circumstances be sufficient excuse (para 48).

The judge accepted in this case that Counsel was not aware of the conflict in evidence. However, the claimant must have been. The failure to provide any explanation or statement was “critical” and this justified setting aside the grant of permission to appeal. A mere oversight would not be a “compelling reason” as is required by the CPR but failing to explain the discrepancy once it had been pointed out allowed the court to infer that there was no explanation and that the original application for long residence, the application for judicial review and the application for permission to appeal on a “fundamentally false factual basis and did so knowingly”. This was a compelling reason.

Litigation conduct and costs

The Secretary of State was in this case in breach of the rules for provision of a skeleton argument. In the circumstances, the court decided not to disbar the Secretary of State from participating in the substantive appeal but did reflect this failure in the order for costs. Indemnity costs would have been awarded to the Secretary of State but instead only standard costs were awarded. Beatson J also reiterates the criticism of the Secretary of State made in earlier cases:

I note that in R (Sabir) v Secretary of State for the Home Department [2015] EWCA Civ 1173 at [27], McCombe LJ referred to a concern that had arisen as to a pattern of the delays on the part of the Secretary of State in complying with the rules, in that case as to the time for filing a respondent’s notice. The Secretary of State, as a frequent and experienced litigator in the Upper Tribunal’s Immigration and Asylum Chamber, the Administrative Court and this court, should set an example in complying with the rules, whether as to filing a respondent’s notice or an acknowledgment of service. Where she has not complied with the rules, she should give an explanation to the court.

Guidance on documents in long residence and other cases

The reasons on the substantive matters before the court are all obiter as the decision in the case was to set aside the grant of permission. Nevertheless, having heard argument and given the importance of the issue, the Court still gives reasons.

In fact, Counsel for the Secretary of State conceded at the hearing that the statement in the reasons for refusal letter in this case that only official documents could be accepted was an error of law, a point we should recall that three senior judges had previously refused to accept. The Secretary of State had been defending this position until the hearing itself, and Beatson J expresses his displeasure with the very late nature of the concession. The court makes plain that it agreed with the concession and gives brief reasons:

First, as Mr Lewis accepted, there is no authority for such a restriction in legislation or the Immigration Rules. Secondly, as recognised, for example in ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 at [3], the 14 year rule set out in Rule 276B(i)(b) is specifically directed to people who have managed to stay in the United Kingdom for 14 years or more without lawful authority, and is in effect an amnesty clause. It is likely that those in the United Kingdom without leave, and therefore without status, will have no official documentation, particularly in the early period of their residence. Thirdly, although most of the documents listed by the Secretary of State can be classified as “official” in the sense that they are from institutions and not individuals, a tenancy agreement and a letter from a landlord, which are listed, are difficult to classify as “official”.

On the facts of the case, particularly given the conflict in the claimant’s own evidence, this did not avail the appellant, however, and the appeal would have been dismissed had the grant of permission not been set aside already.

Ryder and Longmore LLJ agreed, and all emphasised that applications for set aside of grants of permission to appeal should continue to be rare.