At GSN Immigration we sometimes find it necessary to deal with the intricacies of developing case law in the Upper Immigration Tribunal. The recent judicial review case of “Ashrafuzzaman” provided us with an important piece of learning: “The issue of dishonesty in a judicial review challenging a decision under paragraph 320(7A) of the Immigration Rules in not one of precedent fact.”
This sounds interesting but what does it actually mean?
Well, we will tell you the story. Mr Ashrafuzzaman is a Bangladeshi national who applied for a student visa. The visa was initially granted but subsequently revoked, on the basis that he had lied about not having any relatives living in the UK when in fact, as he later admitted, he had a sister living here.
He went for administrative review but unsuccessfully, and eventually the case reached the Upper Tribunal in judicial review proceedings. Judicial review is, very roughly speaking, a process in which a decision taken by a Government body (such as UK Visas & Immigration) is scrutinised by a court/tribunal for legal correctness. If the decision looks wrong in some way then the court can quash the decision and require the decision-maker to re-take it; it is like a mini-appeal hearing but its terms are a lot narrower and more limited.
These days, student visa applications (not being deemed to be “human rights” applications) do not carry the right of appeal if they are refused: only administrative review and, potentially, judicial review.
The Upper Tribunal in this case had to ask itself an important question: what should be the terms for its scrutiny of the decision? Should it go right back to scratch and analyse the reasoning for the finding of dishonesty and see if the reasoning was acceptable? Or, on the other hand, should it simply decide if the decision was within the range of reasonable decisions in the circumstances?
This latter is the more traditional approach taken in judicial review, and of course it is quite a liberal test: unless a decision is evidently irrational it will stand. To put it another way, the court does not have to decide whether it agrees with the decision; it only has to decide whether the decision is not so badly wrong that it has to be quashed.
And here the meaning of “precedent fact” emerges. Was the issue (or “fact”) of alleged dishonesty an issue that had to be sorted out from the beginning before the Tribunal could proceed to analyse the case? Or should the Tribunal just take the decision as it was and simply decide whether it could be impugned on traditional judicial review irrationality grounds?
Well, as we saw from the quote above, the Upper Tribunal went for the second option. This, we would suggest, is likely to make it harder for applicants who have been accused of dishonesty or deception to succeed in judicial review, and it was not really that easy in the first place.
If your visa application has been refused on the basis of alleged deception we will be able to advise you on your options and the best way forward.