Procedural fairness challenge succeeds in Hong Kong case

The Upper Tribunal has held that a refusal to grant leave under Appendix Hong Kong BN(O) was procedurally unfair because the decision maker decided the application with reference to evidence not provided by the applicant and without providing an opportunity for the applicant to address that evidence. The case is R (KW) v Secretary of State for the Home Department, JR-2024-LON-002169.

The applicant is a Chinese national who lived in Hong Kong and who applied to come to the UK under the Hong Kong British National (Overseas) route on 15 March 2023. The application was refused on 21 April 2023 and the decision maintained on 18 May 2024 following administrative review.

The refusal was based on the applicant’s conviction in Hong Kong for “conspiracy to furnish false information to a police officer”. The applicant had provided evidence that the conviction was “politically motivated and part of a history of persecutory prosecution”.

A judicial review application was lodged, challenging the administrative review outcome of 18 May 2024. There were four grounds to the judicial review and the applicant succeeded on the fourth one which was that there had been procedural fairness in the decision making process. This was based on the fact that the decision maker in November 2023 had located a decision by the Hong Kong Court of Appeal online and had given this decisive importance in the decision, without putting the applicant on notice of this.

The applicant argued “that the lack of a “minded to refuse” process was contrary to the Court of Appeal’s ruling in Balajigari v Home Secretary [2019] EWCA Civ 673”. The Upper Tribunal considered that Balajigari was not decisive here because it applied to a different situation, however it was still useful when considering procedural fairness in an immigration context. The tribunal concluded that the applicant had been

ambushed by the Respondent’s reliance on the judgment of the Hong Kong Court of Appeal. In those circumstances, whilst this case is not on all fours with Balajigari, I am satisfied that there was material procedural unfairness and I cannot be satisfied that the outcome would have been the same if a fair process had been followed

The refusal was quashed and the decision will need to be remade by the Home Office.