Procedural fairness in visit visa applications

In Kaya v Secretary of State for the Home Department [2025] UKSIAC SV/01/2024 the Special Immigration Appeals Commission (SIAC) upheld the Home Office’s decision refusing to issue a visit visa to a Turkish national on the basis that his presence in the UK is not conducive to the public good.

The decision takes a narrow and restrictive approach to the requirements of procedural fairness in the context of an application for a visit visa.

Background

There is very little information in the open judgment as to what Mr Kaya is said to have done. The rule relied on by the Home Office is very wide ranging, allowing refusal on the basis of “conduct, character, associations or other reasons” (immigration rules, para 9.3.1). The Home Office guidance provides some examples of what may justify refusal under this provision which range from being involved with terrorism, extremism, war crimes, or crimes against humanity to inciting public disorder or committing immigration offences.

All that is disclosed about Mr Kaya is that he is not known to have circumvented the immigration rules or to have engaged in criminal behaviour and that, when seeking to enter the UK in June 2021, he was found to have three smartphones, thirteen sim cards, and £10,000 in cash in his luggage. The case was considered by SIAC because the Home Office relied on information which should not be made public to justify its decision.

As such, readers will have to draw their own conclusions as to why Mr Kaya was travelling to the UK with several mobile phones and sim cards and a large sum of cash in 2021 and why this led the Home Office to conclude, in July 2024, that his presence in the UK was not conducive to the public good.

SIAC’s consideration of procedural fairness

The public are not the only ones kept in the dark as to the reasons for the decision. Mr Kaya was not given advance notice of the reasons for refusal and was not given an opportunity to respond. SIAC’s response to this ground of challenge was as follows:

First, the statutory framework does not require advance notice to be provided or an opportunity to make representations on a proposed refusal in a visa application. This point is however not determinative but a starting point.

Second, as a matter of procedural fairness at common law, the fact-situation is not one where some form of prior right was being denied to the Applicant. In our judgment the obligations of procedural fairness in this context are met by fair warning of the types of matters which might be taken into account by way of the application form and the Guidance…

Third, the obligation of advance notice cannot apply where the very information cannot be disclosed in the public interest: see AMA v SSHD (SN/42/2015) at [9].

Fourth and finally, an advance notice obligation would impose an undue administrative burden if a proposed visa refusal would always impose an advance notice obligation. (at [20]).

In short, the guidance and application form were sufficient to give fair notice of why an application for a visit visa may be refused. The first, second, and fourth points could apply to any application for a visit visa.

Comment

The position adopted by SIAC can be contrasted with comments made by the Inner House and Court of Appeal in previous cases which have recognised a distinction between allegations of dishonesty and refusals based on other reasons (e.g. insufficient documents).

The general position was outlined by the Inner House in GK (India) v Secretary of State for the Home Department [2020] CSIH 69 as follows:

It is an applicant’s responsibility to provide sufficient information to enable the visa application to be granted. An applicant has available to him the terms of Appendix V of the Immigration Rules which make clear the matters which he has to demonstrate. He participates in the decision-making process by submitting the application with sufficient information to demonstrate all of the relevant matters. In the normal case procedural fairness does not require that the decision-making process be an iterative one. The ECO is not usually bound to seek supplementary information from an applicant where the material contained in the application is insufficient to satisfy him that the application should be granted. Nor is he normally obliged to inform an applicant of difficulties with an application which make him minded to refuse it. Rather, the application should make the case for entry clearance, and if the ECO is not satisfied by it, ordinarily he is entitled to refuse it without more ado. His reasons for refusal will indicate why it failed. If the applicant is in a position to supply further material which may address the problem or deficiency his remedy is to submit a new application. The limited content of the requirements of procedural fairness in such circumstances reflects the relatively routine nature of the application, what is at stake for the applicant, and cogent considerations of good administration. (at [30] to [31]).

This is consistent with SIAC’s decision in Kaya.

However, unlike SIAC, the Inner House recognised that there may be circumstances where procedural fairness requires an applicant to be given an opportunity to address a perceived problem before the application is determined. The court held that it was “seriously arguable” that one such circumstance is where the veracity of the information or documents provided with the visit visa application is questioned (GK (India) at [34]).

The Court of Appeal adopted a similar approach in Wahid v Entry Clearance Officer [2021] EWCA Civ 346, noting that:

“…it is arguable that, where an ECO harbours suspicions of dishonesty, procedural fairness requires the applicant to have the opportunity to respond. The Judge was wrong to conclude otherwise.” (at [32]).

On both occasions the court was considering this question at the permission stage. As such, the decisions were limited to whether it is “arguable” that procedural fairness requires an opportunity to respond.

SAIC’s decision in Kaya does not engage with this exception to the general rule. Whilst there is no specific allegation of deception, it seems clear that the Home Office do not accept that Mr Kaya’s travel to the UK is well intentioned or that the reason he has given for his travel, to visit his adult son, is honest. His character, conduct, or associations are being called into question. As such, it is clearly arguable that procedural fairness required him to have an opportunity to respond.

Perhaps further reasons for rejecting this argument are contained within the closed judgment (which is not available to the public). Where the Home Office relies on “closed material” which cannot be disclosed, there is clearly a limit to how far an argument based on procedural fairness can be taken. In such circumstances, it could be argued that fairness is ensured by allowing SIAC to review the decision (and the closed material) and appointing a Special Advocate to represent the appellant.

However, where the information can be disclosed, it remains seriously arguable that procedural fairness requires the applicant to be informed of the issue and given an opportunity to respond.