Formal Rigour and Pleading Requirements in Visa Refusal Judicial Reviews: Notice Obligations for New Grounds of Challenge

Introduction

Bibi, R (On the Application Of) v Secretary of State for the Home Department ([2025] EWCA Civ 622) is a Court of Appeal decision dealing with the refusal of entry‐clearance as a visitor and the procedural boundaries of judicial review challenges. The appellant, a Pakistani national, had her third visitor visa application refused in October 2022 by reference to the “genuine visitor” requirement under Appendix V of the Immigration Rules. She challenged that decision before the Upper Tribunal (Immigration and Asylum Chamber), claiming procedural unfairness on the grounds that new reasons for refusal had been raised without proper notice or an opportunity to respond. The UT refused permission to proceed and an appeal to the Court of Appeal was limited to the unpleaded complaint that she was not warned that her failure to disclose a 2010 refusal might be taken into account. This judgment reinforces principles of procedural formality, notice obligations, and the limits of informal expansion of grounds in public law litigation.

Summary of the Judgment

The Court of Appeal (Andrews LJ, Snowden LJ, Peter Jackson LJ) unanimously dismissed the appellant’s challenge. The judges held:

The appellant’s new procedural‐fairness argument had never been formally pleaded or permitted in the UT, contrary to the requirements of R (Talpada) v SSHD [2018] EWCA Civ 841. It was therefore not open to her to pursue it.
Even if that ground had been properly before the UT, it was “highly likely” under section 16(3C) of the Tribunals, Courts and Enforcement Act 2007 that giving the appellant an opportunity to explain her non-disclosure of the 2010 refusal would not have changed the outcome: the other independent, detailed reasons for refusal would remain intact.
The Court reaffirmed that, in visitor visa refusals outside allegations of dishonesty under Part 9 of the Rules, there is no free-standing obligation to put every emerging concern to the applicant by way of a “minded to” letter or interview.

Analysis

1. Precedents Cited

R (Talpada) v SSHD [2018] EWCA Civ 841 – Singh LJ’s dicta stressing that public law litigation requires formal pleading, clear grounds of challenge and that no ground should “evolve” informally after permission is granted. This case underpins the Court of Appeal’s insistence on procedural rigour.
AA (Nigeria) v SSHD [2010] EWCA Civ 773 – Defines “false” in immigration declarations as knowingly false or dishonest; relevant to the decision maker’s concern over the appellant’s failure to disclose previous refusals.
R v SSHD, ex parte Doody [1994] 1 AC 531 – Establishes that fairness is context-specific and not applied identically in every administrative decision.
R (Taj) v SSHD [2021] EWCA Civ 19 – Rejects a blanket rule requiring notice of every adverse inference; procedural fairness must be tailored to context, especially where the applicant controls the relevant evidence.
R (Ashish Balajigari) v SSHD [2019] EWCA Civ 673 – In Part 9 dishonesty/refusal grounds, a “minded to” process is required; distinguished from this case because no dishonesty ground under Part 9 was pleaded or relied upon.
R (New Hope Care Ltd) v SSHD [2024] EWHC 1270 – Illustrates the high threshold of “highly likely” in section 31(2A) SCA 1981 (analogous to section 16(3C) TCEA 2007) that the outcome would be unchanged.

2. Legal Reasoning

The Court’s reasoning is twofold:

Pleading/Formal Notice Requirements
Following Talpada, the Court held that no ground may be advanced in judicial review unless it has been (a) properly pleaded and (b) permission granted to pursue it. The appellant’s complaint about non-disclosure of the 2010 refusal fell outside her pleaded grounds. Despite oral renewals and skeleton arguments, she never applied to amend her grounds. The UT therefore properly declined to entertain it.
Section 16(3C) TCEA 2007 – “Highly Likely” Test
Even if the point had been properly before the UT, a fair tribunal would have applied section 16(3C) which requires refusal of permission if it is “highly likely” the outcome would not have been substantially different absent the complained-of conduct. Here, the refusal letter contained multiple, independent rational reasons—family-tie concerns, financial‐position concerns and credibility issues—each sufficient alone to refuse entry. Granting notice of the non-disclosure issue and allowing explanation would not have altered the ultimate negative assessment on the other grounds. It was therefore inevitable that the visa would have been refused.

3. Impact

This decision clarifies and reinforces several important principles for public law and immigration litigation:

Judicial-review grounds must be formally pleaded, and no informal expansion is tolerated.
In non-Part 9 refusals (i.e. where no allegation of outright dishonesty or fraud is pleaded), entry-clearance officers need not issue “minded to” letters or interviews for every emerging concern about credibility or intent. Fairness is context-driven.
The “highly likely” threshold under section 16(3C) is a significant bar to relitigation of procedural-fairness issues when independent substantive reasons would sustain the decision.
Practitioners should be alert to the difference between stigma-laden Part 9 grounds (which require formal notice of adverse inferences) and genuine-visitor assessments under Appendix V (which do not).

Complex Concepts Simplified

Permission to Proceed / Permission to Appeal: A filter at the start of judicial-review proceedings, designed to weed out unarguable or improperly pleaded claims.
Section 16(3C) TCEA 2007 (“Highly Likely” Test): If the tribunal is (or should be) satisfied that it is “highly likely” the outcome would not have been substantially different without the contested conduct, permission must be refused.
Part 9 Grounds of Refusal vs Appendix V Genuine Visitor Requirement: Part 9 deals with false representations and non-disclosure (dishonesty). Appendix V genuine-visitor rules focus on credibility of intent to visit and return; no formal “minded to” procedure is required unless Part 9 is invoked.
“Minded To” Process: A procedure (in writing or interview) warning a person that adverse findings about dishonesty are contemplated, giving a chance to respond before a final decision.

Conclusion

Bibi v SSHD underscores the value of procedural formality in public law litigation. Grounds must be plainly set out and permission sought before reliance at hearing. In visa refusals under the genuine-visitor rules, there is no overarching obligation to forewarn applicants of every emerging concern about credibility; fairness is guided by context. Finally, where multiple independent reasons justify a refusal, section 16(3C) demands refusal of permission if it is highly likely that an opportunity to address any single point would not have changed the outcome. This decision will guide practitioners and decision-makers in shaping clear, focused challenges and fair, efficient decision processes.