GK AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Factual and Procedural Background

The appeal concerns a petitioner, an Indian national residing in India, who applied for a visit visa to the United Kingdom in September 2019 to visit her two daughters and grandchildren living in the UK. The petitioner, a widow living with her brother and his family in India, applied for Entry Clearance for a one-month visit, sponsored by one of her daughters. Her application included representations and approximately 180 pages of supporting material, including details of her living arrangements, her brother's business activities, and financial support from her daughter in the UK.

The Entry Clearance Officer ("ECO") refused the application on 22 October 2019, finding that the petitioner did not satisfy paragraph V4.2 of Appendix V to the Immigration Rules for Visitors, particularly concerning the genuineness of her intention to visit and her ties to India. The ECO expressed concerns about the petitioner's financial circumstances, the unclear source of funds in a joint bank account with her brother, and the strength of her family, social, and economic ties outside the UK. The ECO also noted an earlier 2016 visit visa refusal.

The petitioner sought judicial review of the refusal decision, challenging the ECO's reasoning and alleging procedural unfairness, particularly that the ECO did not raise certain concerns with her before refusing the application. The Lord Ordinary refused permission to proceed with the judicial review, concluding that a fresh application could be made and that the petition would have no practical effect. The petitioner appealed that refusal.

Legal Issues Presented

1. Whether the petitioner has a real prospect of success in establishing procedural unfairness in the ECO's refusal of the visit visa application.
2. Whether granting permission to proceed with the judicial review would serve any practical purpose given the possibility of a fresh visa application.

Arguments of the Parties

Appellant's Arguments

• The ECO applied the wrong legal test by requiring the petitioner to demonstrate ties that would "necessitate" her departure from the UK, which was a higher standard than required.
• The ECO relied on concerns about the petitioner's brother's financial and family circumstances that were not raised in the application form and about which the petitioner was not given an opportunity to respond, constituting procedural unfairness.
• The petitioner had provided all required information and more, but the ECO went beyond the application to refuse permission on unforeshadowed grounds.
• The ECO failed to clarify whether police advice from 2018 about the safety of the petitioner's daughter traveling to India was still valid, denying the petitioner a chance to address this issue.
• Procedural fairness required the ECO to inform the petitioner of concerns before refusal, which did not occur.
• Without such procedural fairness, the petitioner risks repeated refusals without clarity on deficiencies.

Respondent's Arguments

• The petitioner was aware of the requirements and the relevance of her brother's financial position, as the application was presented on the basis of his support.
• The petitioner bore responsibility for providing relevant information; there was no procedural unfairness in the ECO not requesting further details or engaging in correspondence before refusal.
• The police advice was not a decisive factor and the ECO was not obliged to seek updated information.
• The petitioner’s disagreement with the ECO’s decision does not amount to procedural unfairness.
• Reduction of the refusal decision would have no practical effect as the petitioner could submit a fresh application with further evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered whether the petitioner had a real prospect of success in establishing that the ECO's refusal of her visit visa application was procedurally unfair. The ECO refused the application primarily because he was not satisfied that the petitioner had demonstrated strong family, social, or economic ties outside the UK sufficient to ensure her departure after a short visit, and due to concerns about the source and sufficiency of funds, particularly relating to her brother's financial circumstances.

The petitioner argued that the ECO applied an incorrect legal test by requiring ties that would "necessitate" departure, and that the ECO relied on concerns not raised in the application, thus denying procedural fairness by not allowing her to address these issues. The respondent argued that the petitioner knew the relevant requirements and bore the responsibility for providing sufficient information, and that there was no obligation on the ECO to seek further information or engage in correspondence before refusal.

Lord Glennie, leading the opinion, acknowledged that while visit visa refusals are routine and applicants can submit fresh applications, it was premature at the permission stage to conclude that procedural fairness did not require the ECO to raise concerns before refusal. The court found it arguable that the ECO made adverse findings about the petitioner's veracity and that procedural fairness might require the ECO to give the petitioner an opportunity to address such concerns.

Lord Doherty agreed, emphasizing that although the court should not finally determine the merits at this stage, there was a sufficient arguable case on procedural fairness, particularly regarding adverse findings about veracity and the potential impact of previous refusals on future applications.

Lord Woolman dissented, concluding that the petitioner's case was at best stateable and lacked a real prospect of success, and that judicial review would not serve a practical purpose since a fresh application was available.

Overall, the majority granted permission to proceed with judicial review, finding that the petitioner had a real prospect of success on the procedural fairness ground and that the petition could have practical effect by clarifying procedural fairness obligations in visit visa refusals.

Holding and Implications

The court ALLOWED THE APPEAL, recalled the Lord Ordinary's interlocutor refusing permission, and granted permission for the petition for judicial review to proceed.

The direct effect is that the petitioner may proceed with her judicial review challenge to the refusal of her visit visa application. The court did not make a final determination on the substantive merits but recognized the importance of clarifying procedural fairness requirements in the context of visit visa refusals. No binding new precedent was established, but the decision signals judicial willingness to scrutinize procedural fairness in similar immigration cases where adverse findings about veracity or unexpected concerns arise without prior notice to the applicant.