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Dishonesty is not a “precedent fact” issue in a judicial review
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This was the unsurprising finding of the Upper Tribunal in R (Ashrafuzzaman) v Entry Clearance Officer (precedent fact; general grounds refusal)  UKUT 133 (IAC). The exception is where human rights are involved (more on that later).
Although the case concerned a refusal under the old paragraph 320(7A), the findings apply equally to the current version of the general grounds of refusal in Part 9 of the Immigration Rules.
Background: student visa application
Mr Ashrafuzzaman, a Bangladeshi citizen, applied for a student visa in December 2019. When asked on the application form whether he had any family in the UK, he ticked “no”. He said the same during an interview. It was only when he spoke to an immigration liaison officer in Sylhet before boarding the plane that he revealed that he did, in fact, have a sister in the UK. This raised doubts about his credibility and his entry clearance was revoked.
The Home Office conducted a second interview in February 2020, as part of which he was informed that his visa was revoked because there were doubts about his credibility and “whether he intended to leave the UK at the end of his course”. Mr Ashrafuzzaman was once more asked about family in the UK and although he initially said no, when prompted he disclosed the existence of a sister in west London. He tried to account for the discrepancy by explaining that he was supposed to study in Southampton and he thought he was being asked whether he had family in that city.
The Home Office refused his application under paragraph 320(7A) – as it was then – on the ground that he used deception by failing to declare a material fact on the application. A refusal on this basis also carried a ten-year entry ban under paragraph 320(7B).
Mr Ashrafuzzaman applied for administrative review, including an alternative explanation: Home Office guidance on who is considered a family member doesn’t mention siblings. The Home Office rejected this argument.
In a letter before claim initiating judicial review proceedings, Mr Ashrafuzzaman brought up an agent who helped him with the application and, he said, advised that “family members” does not include siblings, which led to him ticking “no”. Permission was initially refused on the papers and at the renewal. The Court of Appeal granted permission to appeal and the matter was remitted to the Upper Tribunal.
What is a precedent fact, anyway?
Judicial review challenges are usually limited to a review of the Home Office’s decision on Wednesbury principles, i.e. normal public law grounds such as whether the decision was irrational and whether the claimant was denied procedural fairness. In these cases, the court performs a “supervisory” role in judging whether the Home Office decision was lawful, which limits consideration to the evidence that was before the decision-maker at the point of the refusal and admin review.
In some categories of judicial review, however, the case hinges on a “precedent fact”, which the court or tribunal must determine for itself. For example, where the Home Office has refused to issue a passport on the grounds that the person is not British, whether she is British will generally be an issue of precedent fact. The judge will hear new evidence and even witnesses. In these cases, the tribunal or court can overrule the Home Office on the precedent fact, substituting its own judgment for that of the decision-maker (yes the passport applicant is British, in this example).
Is deception a precedent fact?
In short, no, at least where the case concerns a decision under the Immigration Rules.
Upper Tribunal Judge Blum said that it is “to the empowering legislative provision that one must look when determining whether the exercise of a particular power is dependent on the existence of a precedent fact”. The relevant provision here, authorising the Secretary of State to make the Immigration Rules in the first place, is section 3 of the Immigration Act 1971. The judge quoted approvingly from R (Giri) v SSHD  EWCA Civ 784 (at paragraph 66) on the right approach in this context:
The key point is that the statute confers the power on the Secretary of State, or the immigration officers acting on her behalf, to make the decision whether to grant or refuse leave to remain. It is for the Secretary of State or her officials, in the exercise of that power and in reaching their decision, to determine which provisions of the Rules apply and whether relevant conditions are satisfied, including the determination of relevant questions of fact. On the reasoning in Khawaja and Bugdaycay, their findings on such matters are open to challenge in judicial review proceedings only on Wednesbury principles; it is not a situation in which their powers depend on some precedent fact the existence of which falls for determination by the court itself.
This is perhaps not a surprising finding, given that Giri had already decided the same issue on near-identical facts.
What this meant for Mr Ashrafuzzaman is that he was not allowed to introduce any new evidence and that his case would be considered on the usual public law principles without the tribunal having to decide whether he used deception as a precedent fact. All the judge had to decide was, in a nutshell: was it rational for the Secretary of State to find that he used deception on the available facts? The answer, ultimately, was “yes”.
The human rights exception
Although deception is not a precedent fact as far as the Immigration Rules are concerned, there are still cases where the tribunal or court can consider new evidence and substitute its own judgment for that of the Secretary of State. These will involve the argument that the decision being challenged breaches the claimant’s rights under Article 8 of the European Convention for Human Rights@
… in a judicial review challenge the jurisdiction of the Tribunal to determine an issue of dishonesty for itself arising from a decision taken under the general grounds of refusal in the Immigration Rules is dependent on the engagement of an ECHR right. This is because an allegation that such a decision violates Article 8 ECHR, and is therefore unlawful as being contrary to section 6 of the Human Rights Act 1998, must be determined by the court or Tribunal on its merits, and the approach to the ECHR question is not limited to Wednesbury […] review.
Mr Ashrafuzzaman did not argue that his ECHR rights were engaged in this case.
Much ado about nothing?
The only surprising aspect of this decision for me was that the existence or otherwise of a sister was treated as a “material fact”. The student route has nothing to do with family connections and it is highly likely that had Mr Ashrafuzzaman disclosed her existence at the start, his application would still have been granted.
The tribunal found (at paragraph 107):
Whether the applicant had family members in the UK was a factor relevant to determining the applicant’s genuine intentions. The presence of family members may be relevant in ascertaining whether an applicant genuinely intended to leave at the end of his period of leave; if he had family members in the UK he may wish to remain living here to be close to those family members. The assessment undertaken by the respondent of a person’s intentions will consider, amongst other things, the strengths of an applicant’s links to the UK and factors that may tend to make it more likely that a person will remain in the UK after their leave has expired. We are consequently satisfied that the presence of the applicant’s sister in the UK was a material fact in relation to his entry clearance application, and that the respondent was entitled to treat it as a material fact.
But the student route does not require the applicant to intend to leave at the end of the course. On the contrary, there are a number of routes that a student can switch into to extend their stay. These notably include the Graduate route, created specifically to give overseas students two or three extra years in the UK after completing their course. Nor is there anything in the Home Office guidance on the “genuine student test” (page 14 onwards) about family in the UK, though admittedly the list of factors to be taken into account is not exhaustive.