In R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518 the Court of Appeal has misdirected itself on how to approach factual disputes in the context of an application for judicial review. The error did not affect the result because the appeal was bound to fail due to other problems with the evidence, but it is a reminder of the tendency of the court to panic when faced with a factual dispute in a judicial review claim.

Mr Safeer had made an application for a Tier 1 Entrepreneur visa under the Points Based System in 2015. One of the grounds of refusal was that he had failed to include a copy of a Companies House “current appointment report”, which was required as part of the application. Mr Safeer insisted he had supplied that document and applied for an internal administrative review of that decision.

The internal review refused his application again for the same reasons, with the Home Office insisting that Mr Safeer had not supplied the Companies House document. He applied for judicial review of that decision, but the Upper Tribunal refused the application and certified it as totally without merit. Mr Safeer appealed the refusal of permission.

The Court of Appeal noted that the Home Office had failed to file a witness statement as evidence that checks for the missing document had been carried out, but still ruled that:

The basic rule is clear, namely that where there is a dispute on the evidence in a judicial review application then in the absence of cross-examination the facts in the defendant’s evidence must be assumed to be correct.

Effectively, Mr Safeer has been punished for failing to apply to cross-examine a non-existent witness. The ruling is grossly unfair, although in the context of this appeal there has been no injustice because Mr Safeer’s appeal was bound to fail anyway: the evidence he had provided was insufficient to demonstrate the extent of his business activity in the UK.