Bibi, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns the refusal by the Upper Tribunal (IAC) ("the UT") of permission to proceed with a claim for judicial review brought by the Appellant, a national of Pakistan, challenging the Secretary of State's decision dated 26 October 2022 to refuse her application for entry clearance ("EC") as a visitor to the UK. The Appellant had made multiple previous applications for entry clearance as a visitor, refused in 2008 and 2010, and a third application made in July 2021, initially refused in July 2021 and reconsidered with refusal again in November 2021.

The refusal in October 2022 was a further reconsideration following a Consent Order dated 4 October 2022, pursuant to which the Secretary of State agreed to reconsider the November 2021 refusal decision. The October 2022 refusal cited multiple grounds, including the Appellant's failure to disclose previous visa refusals on her application form, submission of family certificates that did not demonstrate substantial family ties in her country of residence, and concerns about the sale of jewellery to fund the trip. The Secretary of State concluded that the Appellant had not satisfied the genuine visitor requirement under Appendix V of the Immigration Rules.

The Appellant sought judicial review of the October 2022 decision on five grounds, including complaints that new reasons for refusal were unfairly introduced and that procedural unfairness arose from the Secretary of State's failure to give notice of concerns, particularly regarding non-disclosure of previous refusals. The UT refused permission to proceed with the claim, and the Appellant renewed the application orally, maintaining the same grounds. The renewal was also refused by UT Judge Kopieczek, who found no arguable merit in the grounds raised.

The Appellant then sought permission to appeal to this Court on a single ground: that the Secretary of State had acted procedurally unfairly by failing to put her on notice that her failure to disclose the 2010 visa refusal might be taken into account, denying her an opportunity to comment. Permission to appeal was granted on this sole ground, with all other grounds refused.

Subsequently, the Appellant filed a replacement skeleton argument shortly before the hearing, substantially recasting the ground of appeal to assert that the decision maker had made a finding of bad faith or disreputable conduct without giving the Appellant an opportunity to respond, a ground which was neither pleaded nor the subject of permission to appeal. The Court allowed the filing of this document but refused to permit any amendment to the grounds of appeal.

Legal Issues Presented

1. Whether the Secretary of State acted in a procedurally unfair manner by failing to put the Appellant on notice that her failure to disclose a previous visa refusal might be taken into account, thereby denying her an opportunity to respond before the refusal decision was made.
2. Whether the Appellant may raise new unpleaded grounds of appeal, including allegations of bad faith or disreputable conduct, without having sought permission to amend the grounds of appeal.
3. Whether the Upper Tribunal was correct to refuse permission to proceed with the claim for judicial review on the grounds presented.
4. Whether, assuming procedural unfairness existed, it was highly likely that the outcome of the visa refusal would not have been substantially different if the Appellant had been given an opportunity to respond.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State acted unfairly by introducing new grounds for refusal in the October 2022 decision, including allegations regarding family ties, non-disclosure of previous refusals, and sale of jewellery, which had not been raised in earlier refusals or during reconsideration.
• The Appellant was not put on notice, particularly in the 7 October 2022 email, that the Secretary of State would rely on the failure to disclose the 2010 visa refusal, denying her the opportunity to respond to this new allegation.
• The decision maker implicitly accused the Appellant of bad faith or disreputable conduct by stating that the discrepancy in the application undermined the credibility of the information provided, and thus the Appellant should have been given a "minded to" process to respond before refusal.
• The Appellant contended that the failure to disclose was not alleged to involve dishonesty, but procedural fairness nonetheless required notice and an opportunity to respond.
• The Appellant argued that the refusal decision breached the Consent Order by raising new grounds beyond those in the November 2021 refusal.

Respondent's Arguments

• The Secretary of State denied any procedural unfairness, submitting that the 7 October 2022 communication was intended to invite updated evidence on current circumstances, not to give notice of specific concerns or new grounds for refusal.
• The Secretary of State contended that the Appellant was aware that the reconsideration was a fresh decision and was not limited to the grounds in the November 2021 refusal letter.
• It was submitted that no allegation of dishonesty or fraud was made, and procedural fairness does not require advance notice of evolving concerns about credibility under the Immigration Rules unless serious adverse findings such as dishonesty are alleged.
• The Secretary of State argued that even if procedural unfairness were established, it was highly likely that the outcome would not have been substantially different had the Appellant been given an opportunity to respond, given the other independent reasons for refusal.
• The Secretary of State opposed the introduction of new unpleaded grounds of appeal and emphasized that the Appellant had not sought permission to amend the grounds despite ample opportunity.
• The Secretary of State relied on section 16(3C) of the Tribunals, Courts and Enforcement Act 2007, submitting that the UT was entitled to refuse permission to proceed if the outcome would not have been substantially different absent the alleged procedural unfairness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841	Requirement for procedural rigour and formality in public law litigation; discouragement of informal expansion of grounds.	Reinforced the importance of limiting grounds of appeal to those properly pleaded and permitted; the Court refused to allow unpleaded grounds.
AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564	Definition of "false" as knowingly false (dishonest) in immigration application context.	Clarified that dishonesty requires knowledge; relevant to assessing procedural fairness and allegations of non-disclosure.
ASHISH BALAJIGARI v SSHD [2019] EWCA Civ 673	Procedural fairness requires a "minded to" process before adverse findings of dishonesty or reprehensible conduct are made.	Distinguished the present case as no explicit dishonesty was alleged; procedural fairness obligations were accordingly different.
R (Taj) v Secretary of State for the Home Department [2021] EWCA Civ 19; [2021] 1 WLR 1850	Procedural fairness does not always require advance notice of concerns about truthfulness in immigration applications.	Supported the position that no procedural unfairness arose from the Secretary of State not putting evolving concerns to the applicant in this context.
R (New Hope Care Ltd) v Secretary of State for the Home Department [2024] EWHC 1270	High threshold for finding that procedural unfairness would not have affected the outcome; "highly likely" test under section 31(2A) Senior Courts Act 1981.	Applied to assess whether procedural unfairness would have changed the outcome; court found it highly likely outcome would remain the same here.
R (Grinham) v Parole Board [2020] EWHC 2140 (Admin)	Common law immateriality arguments and exceptional circumstances where procedural unfairness does not affect outcome.	Referenced in assessing whether procedural fairness breach would have altered the decision.
R (Harvey) v Mendip District Council [2017] EWCA Civ 1785	Requirement for evidence to support assertions that outcome would have been the same absent procedural unfairness.	Distinguished as less applicable in judicial review permission stage; no expectation for decision maker to provide such evidence here.
R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531	Common law duty of fairness is context-specific and fact-dependent.	Guided the court's assessment of procedural fairness requirements in the immigration context.
R (Karagul and others) v Secretary of State for the Home Department [2019] EWHC 3208	Procedural fairness requires opportunity to respond before adverse findings of bad faith or dishonesty.	Considered in relation to whether the decision letter's language amounted to an accusation of bad faith requiring a "minded to" process; court found it did not.

Court's Reasoning and Analysis

The Court began by emphasizing the procedural history and the importance of adhering to pleaded grounds of appeal, referencing R (Talpada) to underline the need for procedural rigour and predictability in public law litigation. The Court rejected the Appellant's attempt to introduce a new, unpleaded ground alleging bad faith or disreputable conduct, noting that such a ground was not the subject of permission and had wide implications beyond the case at hand.

Regarding the sole ground on which permission to appeal was granted—procedural unfairness due to lack of notice of reliance on the non-disclosure of the 2010 visa refusal—the Court analyzed the context of the Consent Order and the Secretary of State’s reconsideration. It concluded that the Secretary of State was entitled to consider new reasons for refusal beyond those in the November 2021 letter, and the Appellant’s legal representatives were aware, or should have been aware, of this possibility.

The Court distinguished this case from those requiring a "minded to" process (e.g., Balajigari) because no explicit allegation of dishonesty or fraud was made. The Court held that procedural fairness did not require the Secretary of State to give advance notice of concerns about credibility in this context.

Applying section 16(3C) of the Tribunals, Courts and Enforcement Act 2007, the Court considered whether it was highly likely that the outcome would have been the same had the Appellant been given an opportunity to respond. It reasoned that even if the Appellant’s explanation for non-disclosure had been accepted, the decision maker would still have refused the application for the independent reasons set out in the refusal letter. Therefore, any procedural unfairness would have been immaterial to the outcome.

In sum, the Court found no error in the UT judge’s refusal to grant permission to proceed with the claim for judicial review on the ground of procedural unfairness, whether considered on the basis of the pleaded grounds or the unpleaded expanded ground.

Holding and Implications

DISMISSED

The Court dismissed the appeal, affirming the Upper Tribunal’s refusal to grant permission to proceed with the claim for judicial review. The decision confirms that procedural fairness in immigration entry clearance applications does not necessarily require advance notice of evolving concerns about credibility unless dishonesty or bad faith is explicitly alleged. Furthermore, it underscores the importance of adhering strictly to pleaded grounds of appeal and obtaining permission to amend where necessary. No new precedent was established; the ruling primarily affects the parties by concluding the Appellant’s challenge on the sole ground permitted and rejecting attempts to expand the grounds informally.