Tribunal decisions

The decision

Case No: JR-2024-LON-002169
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

28/07/2025

Before:

THE HONOURABLE MR JUSTICE BOURNE

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Between:

THE KING
on the application of
KW
(ANONYMITY DIRECTION MADE)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Stephanie Harrison KC
(instructed by Wilsons LLP) for the Applicant

Anthony Lenanton
(instructed by the Government Legal Department) for the Respondent

Hearing date: 13th February 2025

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J U D G M E N T

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Mr Justice Bourne:
Introduction
1. The Applicant seeks judicial review of a decision by the Secretary of State for the Home Department (“SSHD”) to refuse his application for leave to remain in the UK. The decision was originally communicated in a letter dated 21 April 2023. An administrative review gave rise to a further decision dated 18 May 2024, maintaining the original decision. The challenge is directed against the decision of 18 May 2024.
Statutory and policy background
2. Part 9 of the Immigration Rules provides:
9.4.1. An application for entry clearance, permission to enter or permission to stay must be refused where the applicant: (a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more.
3. The Home Office guidance for caseworkers, ‘Hong Kong British National (Overseas) route’, Version 8, dated 11 April 2023 states at page 21:
“Overseas convictions and offences not recognised in the UK
Some overseas convictions do not have a direct equivalent in the UK and would not be recognised. For example, some convictions may be for offences which are not crimes in the UK. Furthermore, some overseas offences may carry a much higher penalty than an equivalent offence would in the UK. Such convictions would not count as automatic grounds for refusal on this route. See the criminality policy guidance: ‘Overseas convictions and offences not recognised in the UK’ for more information. You must consult your senior caseworker and the BN(O) Route Policy team if this consideration applies.”
4. The Home Office guidance, ‘Grounds for Refusal – Criminality’, version 2.0, dated 09 November 2021 at page 16-17 also advises case workers not to refuse permission on the grounds of conviction for an offence which is not recognised in the UK and to seek legal advice if unsure of the status of an overseas conviction.
5. The Immigration Rules for Administrative Review state as follows:
“AR 3.3. Where evidence which was not before the original decision maker is submitted with the application for administrative review, the reviewer will only consider that evidence where the eligible decision was:
(a) a decision under Part 9 of these rules to refuse an application on the grounds of false representations or deception; or
(b) a decision under Part 9 of these rules, to cancel entry clearance, permission to enter or permission to stay on the grounds of false representations or deception; or;
(c) a decision to refuse an application for entry clearance under Part 9 of these rules on the grounds of a previous breach of immigration laws; or
(d) a decision not to request specified documents under paragraph 245AA of these rules; or
(e) a failure to follow the evidential flexibility policy published on gov.uk.”
The facts
6. The Applicant is a Chinese national and former resident of Hong Kong. On 15 March 2023, he made an application for leave to remain in the United Kingdom (UK) under the Hong Kong British National (Overseas) (BN(O)) route. He relied on various evidence to corroborate his claim that a conviction he received in Hong Kong for “conspiracy to furnish false information to a police officer”, for which he was sentenced to 2 years and 6 months imprisonment, was politically motivated and part of a history of persecutory prosecution.
7. In his evidence the Applicant has set out the history of the claimed persecution at great length. The relevant part, including the relevant conviction and a prosecution appeal against sentence, can be summarised as follows:
a. When working for his brother’s money-lending business in Hong Kong in around 1987, he knew a Mr Yeung Pui-Yuk who was arrested on suspicion of murder. When freed on bail Mr Yeung complained of police brutality but was charged with assaulting a police officer and causing criminal damage. The Applicant and his older brother held a press conference to criticise the police and displayed a banner criticising them. Mr Yeung was eventually cleared.
b. Just before the press conference, the Applicant was detained at the airport and was told that he was a suspect in a murder case. He was released a few hours later (after missing his flight) without any interrogation. He sued the Attorney General and the Commissioner of Police but later abandoned the claim under pressure of criminal charges.
c. In or around 1988 the Applicant was arrested several times. He was charged with obstructing a police officer, lending money at an excessive interest rate, criminal intimidation and perverting the course of justice. He was acquitted at each of 4 separate trials on those charges.
d. He then faced a fifth trial for what he described as a commercial fraud case at Hong Kong’s High Court, on a charge of conspiracy to furnish false information to a police officer. While on remand, he was denied family visits.
e. In mid-1989, just before that trial, he made a plea deal with the prosecution. He pleaded guilty in exchange for the prosecution offering no evidence against two of his younger siblings who were wrongly charged with the same offence. He did not agree to have any allegations of fraud taken into consideration. Justice Duffy sentenced him to 9 months’ imprisonment.
f. The South China Morning Post then published an article criticising the lenient sentencing and claiming that police morale had been affected. This encouraged the prosecution to seek a review of the sentence.
g. In 1990 he moved to Taiwan. In his absence the review of sentence was heard in his absence in April 1990. His sentence was increased to 2 ½ years and he became a wanted person.
h. In 1991 the police arrested 3 men who were accused of murdering a Mr Chong in Hong Kong in 1987. The deceased’s brother, an employee of the Applicant’s brother’s finance company, disappeared after being exposed for embezzlement. The Applicant and his brother were regarded as persons of interest in the murder. The 3 men confessed that they were instructed by a Mr Cheung to attack the deceased. Two of them were given immunity and the third had his sentence cut as he agreed to testify in a trial of the Applicant’s brother.
i. Mr Cheung was arrested but was given immunity, an allowance and protection in exchange for testifying against the Applicant’s brother.
j. In 1991 the Applicant’s brother was convicted of wounding with intent and sentenced to 10 years.
k. In 1993 the Applicant sent letters and made public statements claiming to have become a wanted criminal by persecution and criticising the actions of prosecutors and police. Other members of his family also made complaints.
l. The Hong Kong police requested the Taiwanese authorities’ assistance in bringing the Applicant back to Hong Kong to implement the court warrant after the review of sentence. He left Taiwan in 1994.
m. Shortly after the handover of Hong Kong to China in 1997 he gave himself up to the police. He then served the remaining term of 21 months.
n. He was released in late 1998 and his brother was released in 1999. They maintained their money lending business.
8. On 31 January 2021 the UK launched the Hong Kong British National (Overseas) Visa Route (“the BN (O) Route”). The relevant law and guidance is set out above, including the provisions about criminality contained in Part 9 of the Immigration Rules.
9. On 10 March 2022 the Applicant applied for entry clearance to the UK under the BN (O) Route. On 3 October 2022 he entered the UK as a visitor. On 24 October 2022 his wife and daughter entered the UK on a BN(O) visa. On 11 November 2022 the Applicant’s entry clearance application was refused.
10. On 15 March 2023, the Applicant applied for leave to remain under the BN (O) Route.
11. On 21 April 2023 the application was refused with a right to administrative review. On 6 July 2023 the decision was upheld on administrative review. Correspondence ensued under the judicial review pre-action protocol. The Respondent agreed to carry out a reconsideration.
12. On 2 November 2023 the refusal was upheld on reconsideration, again with a right to administrative review. Upon administrative review, the decision was again upheld on 18 May 2024.
13. The application for judicial review was lodged on 14 August 2024.
Ground 1
14. This ground concerns the Applicant’s contention that his prosecution was politically motivated. In her decision letter of 18 May 2024 the Respondent stated:
“You additionally highlight you detailed in your application the context surrounding the actions of the prosecution, and Hong Kong authorities – including the courts –, the decision of the attorney general to request a review of your case, and the Appeal Court’s decision to increase your sentence – which you describe as political persecution. You raise the caseworker ignored this evidence, and failed to provide any reasons why this evidence was dismissed.
However, the caseworker stated in the refusal decision letter that ‘This department has applied rigorous scrutiny to your representations of 16 March 2023 and 9 May 2023 in conjunction with your signed statement of 16 March 2023 and acknowledges the PAP notification which was received on 10 July 2023’, and ‘this department does not accept that the adjustment in your sentence was politically motivated. Rather, it is concluded that the increase reflects fatal flaws relating to the initial sentencing procedure and was designed to reflect the nature of your offences and your senior role within complex money lending and money laundering operations.’ The decision letter sufficiently demonstrates that the claimed case working errors of ignoring evidence and failing to provide reasons were not committed by the caseworker.”
15. By his counsel Stephanie Harrison KC, the Applicant complains that the Respondent failed to explain why those conclusions were reached, and why the reasoning of the Hong Kong Court of Appeal had been taken at face value. The reasoning did not sufficiently respond to his contention that he had not pleaded guilty or accepted any responsibility for the wider allegations of fraud and money laundering, and that he fell to be sentenced merely for one minor offence. The decision maker did not engage with his allegation of a history of persecutory prosecution.
16. In oral argument Ms Harrison contended that the critical decision is the earlier one, of 2 November 2023.
17. In that document the decision maker summarised the allegation of persecutory prosecution and said that “the following paragraphs will fully explain why the decision has been made to refuse your application for LTR under the Hong Kong BN(O) route”. It went on:
“This department has obtained a copy of CAAR000010/1989 from the Judiciary of the Hong Kong Special Administrative Region of China. The document is the Hong Kong Court of Appeal’s judgment relating to the Attorney General’s application for a review of the sentences handed to you and your co-defendants on 10 August 1989. The judgment outlines the background to proceedings as follows:”
18. The letter then went through the decision of the Hong Kong Court of Appeal in some detail, setting out its reasoning and emphasizing its finding that the original sentence was “seriously flawed” and “wrong in principle”. It quoted this passage relating to the Applicant:
“42. D4 was described by the trial judge as in the senior management ranks of D1's companies and he was his brother. He was fully engaged in day-to day management decisions and was manager of the finance and money lending companies which received much of the proceeds from the scheme. The trial judge took into consideration, as do we, 50 days which he had spent in custody on another matter. The proper starting point would have been 3 1/2 years after trial and on plea 3 years' imprisonment. We discount that to one of 2 1/2 years' imprisonment”
19. The decision maker then said, by reference to those comments, that the department had rejected the Applicant’s contention that his offence approximated to the English offence of wasting police time (which carries a maximum sentence of 6 months). The letter continued:
“In relation to the assertion that the upgrading of your sentence from nine months to 30 months was politically motivated, the determination of the Hong Kong Court of Appeal explains in comprehensive detail why the judges of the Appeal Court concluded that your initial nine-month sentence was “manifestly inadequate” and predicated upon “a seriously flawed approach to sentencing”. It is notable that even the extracts of the determination of your trial of August 1989 that appear in the Court of Appeal judgment described the enterprise in which you were engaged as a “complex scheme…. requiring careful planning and execution” in which the defendants showed “a cavalier attitude to integrity in their financial dealings”. This department does not accept that the adjustment in your sentence was politically motivated. Rather, it is concluded that the increase reflects fatal flaws relating to the initial sentencing procedure and was designed to reflect the nature of your offences and your senior role within complex money lending and money laundering operations.”
20. Ms Harrison took this Court through the decision of the Hong Kong Court of Appeal, seeking to make the point that the increase in the Applicant’s sentence was by reference to matters to which he had not pleaded guilty. The judgment shows that his legal team attended the hearing but were not heard because he did not answer to bail. Silke J explained that the sentences concerned a large-scale operation in which the Applicant’s brother and others obtained credit from various banks by deception. Although the banks were repaid and there was no intention to cause them any loss, the credit was used to fund a loan-sharking business. Silke J explained that the Court of Appeal took a much more serious view of the case, considered as a whole, than the judge below. He referred to that judge having concluded that all the defendants had a “cavalier attitude to integrity in their financial dealings” and showed “the sort of dishonesty which strikes at the very fabric of a society such as Hong Kong”, but also having stated that he was passing sentences for theft-related offences rather than “the money-lending aspect” and that the importance of the charges had been “grossly overstated”. Silke J disagreed, referring to “massive dishonesty”, “huge amounts of money” and to the money-lending aspect consisting of “grievously illegal activities” which could not be “brushed aside”.
21. When properly analysed, Ms Harrison submitted, the judgment supports her case by revealing that the higher sentence was passed on the Applicant by reference to matters other than his single admitted offence of conspiracy to furnish false information to a police officer, and that the judge focused on wider criminal activity such as money laundering in which the Applicant was never implicated.
22. Moreover, Ms Harrison submits, the decision maker by focusing on the decision of the Court of Appeal ignored the Applicant’s contention that his guilty plea was itself obtained by coercion in the first place.
23. The Respondent’s counsel, Anthony Lenanton, refers to familiar authorities such as South Buckinghamshire v Porter (No 2) [2004] 1 WLR 1953, R (Wheeler) v Assistant Commissioner for the Metropolitan Police [2008] EWHC 439 and R (Friends of the Earth) v Heathrow Airport Ltd [2020] UKSC 52 for the extent, and particularly the limits, of the duty on public authorities to give reasons for their decisions. His point is that a decision must deal with the principal substantial points but need not “work through every consideration which might conceivably be regarded as potentially relevant” (Friends of the Earth at [120]).
24. Mr Lenanton notes that the decision letter of 2 November 2023 sets out the Applicant’s account of coercion and political motivation. In short, he submits that the Respondent was entitled to give decisive weight to the detailed, reasoned Court of Appeal judgment when considering those allegations.
25. He also submits that correspondence from 1989 about the plea deal (to which I return below) should be construed as meaning that the Applicant refused to have money laundering allegations taken into consideration (because those concerned his brother only), but not that that refusal applied to the wider fraudulent conduct. Mr Lenanton also referred to some potentially confusing references to an offence of “conspiracy to furnish false information contrary to common law” rather than “conspiracy to furnish false information to a police officer”.
26. Ms Harrison objects to those last points because they were matters which had not previously been put to the Applicant, and contends that the second point if anything supports the view that the Court of Appeal may have sentenced him for matters going beyond that to which he had pleaded guilty.
27. It does not seem to me that the decision of 2 November 2023, which would be upheld in the review decision of 18 May 2024, was insufficiently reasoned.
28. The view expressed by the Hong Kong Court of Appeal was that of an apparently competent court and the Respondent was entitled to give weight to it in assessing the history of the matters in which the Applicant had been involved. That view, that there was serious criminality, was at odds with the Applicant’s case that he had for many years suffered persecution by the authorities and that he was not guilty of any of the things of which he was accused.
29. Meanwhile, it is difficult to see what more the Respondent could have said about the background allegations of persecution. Whilst a series of unsuccessful prosecutions was consistent with the allegation of persecution, it was not probative of it. The Applicant may or may not have committed the offences of which he was tried and acquitted. In the end, his case of persecution consisted overwhelmingly of assertions. The judgment of the Hong Kong Court of Appeal provided an apparently objective verdict that was capable of carrying more weight than those assertions, and therefore the decision maker’s extensive and detailed references to it were sufficient by way of explanation.
30. I also consider that that decision letter sufficiently explained the rejection of the suggestion that the Applicant’s offence corresponded to the English offence of wasting police time. In context, it is clear that the Applicant was found to have participated in a wider fraudulent scheme, and that the conduct to which he pleaded guilty was conspiring with others to furnish false information to the police in the context of that scheme. That is simply not the same as wasting police time, and, if the case against him was genuine, it plainly could properly attract a significantly longer sentence.
31. I therefore reject the assertion that either of the operative decisions was insufficiently reasoned.
Ground 2
32. By this ground the Applicant submits that the decision maker made a material error of fact.
33. At or around the time of his application for leave to remain, the Applicant submitted two pieces of information (in particular) to the Respondent, namely a prosecutor’s letter dated 3 July 1989 and the Sunday Morning Post article(s) dated 13 August 1989.
34. The prosecutor’s letter recorded a plea deal for the Applicant and others. In respect of him, it said:
“He has pleaded ‘guilty’ to the one count upon which he was indicted - Count 7. He has refused to have the [redacted] case taken into consideration on sentence and I re-iterate now what I said this morning ·to counsel outside court, namely that the Crown gives NO guarantee in his case that he will not in due course be prosecuted for charges arising out of that investigation. His position in this regard is the same as that that applies to both his younger sister, WONG Sui-fang (D8)3 and his younger brother WONG Kwai-nam (D9). If they, or any of them are found to have played a role in the deceptions that were practised upon any of the 6 Banks involved in the [redacted] case, other than that of a mere ‘mechanic’ of WONG Kwai-fun's, carrying out his biddings and directions, then the Crown again reserves its right to proceed against them therefor. I do acknowledge that in agreeing to ‘T.I.C.’ the [redacted] matter, WONG Kwai-fun has himself acknowledged his primary role in that case and that this also accords with my present understanding of the results obtained so far by the police in their investigations.”
35. As I said above, the newspaper article criticised the lenient sentencing and claimed that police morale had been affected by it.
36. In the administrative review decision under challenge, on 18 May 2024, the decision letter stated:
“Finally, I acknowledge you emailed the Administrative Review Unit six attachments on 16 November 2023. Unfortunately, the attachments titled ‘plea deal and newspaper’ and ‘letter to AG 16.8.89’ have not been considered.
This is because your Hong Kong British National (Overseas) application was considered and decided on the basis of the evidence available on the date the decision was made. We will not consider new evidence or information which has been provided after an application decision has been taken when reviewing a decision, unless it meets the requirements specified in Appendix AR of the Immigration Rules. It is your responsibility to ensure that all appropriate evidence is submitted with the application for permission to remain.
The evidence is not eligible for consideration because it is not evidence that:
• was supplied previously but was not considered or considered incorrectly.
• proves that documents we assessed to be false were in fact genuine.
• proves the date of the previous application.
Accordingly, for the reasons above, I am satisfied that no errors have occurred and the caseworker who decided your Hong Kong British National (Overseas) application made the correct decision to refuse your application.”
37. The Respondent has now acknowledged that the decision maker made an error, failing to appreciate that the prosecutor’s letter and the newspaper article in fact had been provided to the caseworker who made the original decision in November 2023.
38. The issue under Ground 2 is the materiality of the error. By virtue of section 15(5A) of the Tribunals Courts and Enforcement Act 2007 and section 31(2A) of the Senior Courts Act 1981, the Upper Tribunal must refuse to grant relief on an application for judicial review if, despite the error, it “appears … highly likely that the outcome … would not have been substantially different”: see also Gathercole v Suffolk County Council [2020] EWCA Civ 1179.
39. Ms Harrison submits that when the plea letter and newspaper article are read together, they enable the inference that the Hong Kong Court of Appeal was persuaded by the police, effectively speaking through the media, to increase the Applicant’s sentence by having regard to wider considerations which went beyond his plea deal.
40. Mr Lenanton emphasizes that although the administrative reviewer declined to consider the two documents, they were considered by the original decision maker in November 2023. Therefore they were not new information which might have caused or justified a change of position on administrative review. Nor, he submits, were they especially important documents for the original decision. The existence of a newspaper article does not prove that a later Court was influenced by the newspaper article, and the plea letter makes clear that the Applicant did not admit to any involvement in the money laundering matter but not that the wider criminality should be left out of account.
41. I accept Mr Lenanton’s submissions on this ground.
42. Newspapers sometimes comment on sentencing in criminal cases and the mere existence of such comment is no basis for inferring that it has influenced a subsequent appellate decision.
43. I accept that there is room for debate about whether the reasoning of the Hong Kong Court of Appeal was entirely consistent with the prosecutor’s letter. The money laundering was, rightly, left out of account, but the prosecutor’s letter also referred to the fraud on the banks, and Silke J did appear to take that into account. However, it would require a great leap from that observation to the conclusion that the Court of Appeal’s decision was part of a corrupt campaign of persecution. It may be that the Applicant’s position was not made entirely clear at that hearing where, as I have said, his failure to answer to bail meant that his legal representatives could not address the Court.
44. Bearing that in mind, since the two documents did not persuade the original decision maker, it does seem to me highly likely that they would not have changed the outcome upon administrative review if they had been taken into account at that stage. Ground 2 therefore fails.
Ground 3
45. The administrative reviewer also refused to consider a letter dated 16 August 1989 from the legal representative of the Applicant’s brother to the Attorney General of Hong Kong which the Applicant provided on 16 November 2023. The letter complained about the article in the South China Morning Post, suggesting that it might amount to contempt of court.
46. Upon administrative review, the decision maker applied rule AR 3.3 (quoted at [5] above) and decided that none of the exceptions applied.
47. Ms Harrison contends that this was the application of a blanket policy, amounting to an unlawful fetter on the Respondent’s discretion to consider cases outside the rules.
48. There was also some discussion of whether there was a failure to apply policy. One of the exceptions under Immigration Rules AR 3.3, quoted above, is where the eligible decision was “a failure to follow the evidential flexibility policy published on gov.uk”. That is a reference to a guidance document entitled Evidential flexibility which was published in January 2021. It states that it applies to all applications save for two categories which are not material in this case. The essence of the policy is contained in these paragraphs:
“You must not refuse an application because the applicant has not provided a specific document if the applicant was not asked to provide that specific document. If it is necessary for you to see the specific document in order to decide whether the requirements of the Rules are met, you must first give the applicant the opportunity to provide that document.
You do not need to contact the applicant if evidence is missing or inadequate if you can find the relevant information elsewhere. For example, information may be accessible to you on the case work systems, such as from the Confirmation for Acceptance of Studies (CAS) or from a previous application. You are not required to review all documents held on a person just in case the information could be found there.
You do not need to contact the applicant, or third party (e.g. the sponsor for the applicant’s job or the student sponsor), if evidence is missing or inadequate if receiving it would make no difference to your decision, for example, because the application would still be refused on other grounds, for example not meeting another eligibility requirement or on suitability grounds. Suitability: false representations, deception, false documents, non disclosure of relevant facts.
If evidence is missing or inadequate, you do not have to offer the applicant an opportunity to prove they meet the requirement in a different way. You do not have to contact them to see if they want to rely on other evidence to show they meet the requirements.
For example:
• if the applicant says they are relying on a student loan, but the evidence is not sufficient to show the requirement is met, you do not need to check whether the applicant meets the requirement some other way such as asking for bank statement
• if the applicant provides bank statements and they do not show the required level of funds or the evidence is not sufficient to satisfy you, there is no need to check whether the applicant has another bank account that might meet the requirement.”
49. This policy is therefore used to decide when a caseworker will or will not (as the case may be) give an applicant an opportunity to provide missing information.
50. Rule AR 3.3 cross-refers to that policy, in that one of the exceptions to the rule that new documents will not be considered at administrative review stage is where the applicant is seeking a review of a failure to follow the evidential flexibility policy. So, where a caseworker identifies missing information and decides not to give the applicant an opportunity to provide it, an administrative reviewer may consider material that was not before the caseworker.
51. It seems to me that that situation did not arise in this case. The relevant request for administrative review was for a review of the refusal of leave to remain. It was not a request for a review of a decision not to invite the Applicant to provide more information.
52. I therefore conclude that there was no failure to apply AR 3.3. The only question is whether there was an unlawful fettering of discretion.
53. In that regard I agree with Mr Lenanton that the case of R (Sayaniya) v Upper Tribunal [2016] EWCA Civ 85 is on point. There the Court of Appeal decided that the non-fettering principle does not apply to a statutory power to make rules such as that conferred by section 1(4) of the Immigration Act 1971. Also, it is always open to the Secretary of State to grant leave “outside the rules” and therefore her discretion is not fettered by the existence of a rigid rule.
54. In any event, I am also not persuaded that giving separate consideration to the letter of 16 August 1989 could have led to a different outcome. I have already explained why the newspaper article is not a decisive document in this case, and a letter complaining about the article was all the less important.
55. I conclude that rule AR 3.3 is not unlawful and neither was the Respondent’s application of it in this case.
Ground 4
56. In his request for administrative review, the Applicant complained that the decision maker in November 2023 had not given him an opportunity to address the judgment of the Hong Kong Court of Appeal. It was not a document which he had provided, and his evidence is that it was not in his possession. Instead, the Respondent located it online and then gave it decisive importance in the November 2023 decision. In his request he complained of procedural unfairness, contending that the lack of a “minded to refuse” process was contrary to the Court of Appeal’s ruling in Balajigari v Home Secretary [2019] EWCA Civ 673.
57. As to that, the decision of 18 May 2024 stated:
“However, the administrative review process is limited to reviewing whether the caseworker made any errors when deciding your Hong Kong British National (Overseas) application. The ‘minded to refuse process’; the Balajigari v Home Secretary [2019] EWCA Civ 673 judgment; and the published guidance for ‘false representations, deception, false documents, non-disclosure of relevant facts’ only concern certain cases in which the Home Office is considering refusing an application on the basis of false representations or deception. Your application was refused on criminality grounds, and therefore I am unfortunately satisfied the caseworker did not act procedurally unfair by not giving you an opportunity to address the Hong Kong Court of Appeal judgment.”
58. Ms Harrison submits that the importance of the Hong Kong Court of Appeal judgment was such that fairness required the Respondent to adopt a “minded to refuse” approach and to give the Applicant an opportunity to respond.
59. She further submits that the simple insistence that there could be no such process in a case of refusal of an application on criminality grounds was an unlawful fetter on the Respondent’s discretion. Essentially it was irrational for the Respondent to rule out the use of a “minded to refuse” process in any criminality case.
60. Mr Lenanton responds that the principle in Balajigari applies to a different situation, where the Secretary of State intends to refuse an application because she believes that an applicant may have been guilty of dishonesty or bad faith in their application. In those circumstances fairness requires that the applicant have a chance to respond. But the present case was a simple one where the Applicant did not qualify for leave by reason of his criminal conviction. The Respondent was entitled to make a decision to that effect without inviting an extra round of representations. There was no fettering of discretion in the observation that Balajigari (and published guidance giving effect to it) did not apply.
61. Moreover, Mr Lenanton points out, the Applicant was not deprived of any opportunity to debate the merits of his case. His case was that he had been treated corruptly and unfairly by the Hong Kong courts including the Court of Appeal, and that case was fully argued in his application.
62. The decision in Balajigari is not, itself, decisive because, as Mr Lenanton said, it applies to a different situation. However, it contains a helpful survey of the authorities on procedural fairness, especially in the immigration context, and is an example of the application of core principles. Those include two important passages quoted from R v Secretary of State for the Home Department, Ex parte Fayed [1998] 1 WLR 763.
63. First, per Lord Woolf MR at 777:
“I appreciate there is also anxiety as to the administrative burden involved in giving notice of areas of concern. Administrative convenience cannot justify unfairness but I would emphasise that my remarks are limited to cases where an applicant would be in real difficulty in doing himself justice unless the area of concern is identified by notice. In many cases which are less complex than that of the Fayeds the issues may be obvious. If this is the position notice may well be superfluous because what the applicant needs to establish will be clear. If this is the position notice may well not be required. However, in the case of the Fayeds this is not the position because the extensive range of circumstances which could cause the Secretary of State concern mean that it is impractical for them to identify the target at which their representations should be aimed.”
64. Second, per Phillips LJ at 786, referring to R v Gaming Board for Great Britain, Ex p Benaim [1970] 2 QB 417:
“That decision demonstrates two matters. (1) The duty to disclose the case that is adverse to an applicant for the exercise of a discretion does not depend upon the pre-existence of any right in the applicant. (2) The nature and degree of disclosure required depends upon the particular circumstances.”
65. More generally, Singh LJ in Balajigari noted that fairness will usually require a fair process to be followed before the decision in question, and continued:
“60. This leads to the proposition that, unless the circumstances of a particular case make this impracticable, the ability to make representations only after a decision has been taken will usually be insufficient to satisfy the demands of common law procedural fairness. The rationale for this proposition lies in the underlying reasons for having procedural fairness in the first place. It is conducive to better decision-making because it ensures that the decision-maker is fully informed at a point when a decision is still at a formative stage. It also shows respect for the individual whose interests are affected, who will know that they have had the opportunity to influence a decision before it is made. Another rationale is no doubt that, if a decision has already been made, human nature being what it is, the decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she has previously come. In the related context of the right to be consulted, in Sinfield v London Transport Executive [1970] Ch. 550, at p. 558, Sachs LJ made reference to the need to avoid the decision-maker’s mind becoming “unduly fixed” before representations are made. He said:
‘any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals - before the mind of the executive becomes unduly fixed.’
61. More fundamentally, it is a central feature of the administrative review procedure, stated at paragraph AR2.4 of Appendix AR, that the reviewer will not consider any evidence that was not before the original decision-maker except in certain specified cases (broadly described as the correction of case-working errors). That means that the applicant would normally only be able to assert that he or she had not been dishonest but would not be permitted to adduce evidence in support of that assertion. That limited type of legal review is clearly inadequate here. It is precisely because the applicant had no notice of the Secretary of State’s concerns that he or she had no opportunity to put evidence before the original decision-maker.”
66. Although the Applicant knew what the Hong Kong Court of Appeal had decided back in April 1990 (and he was represented at the hearing), there has been no challenge to his evidence that he had not seen the judgment. When the Respondent’s key decision was taken in November 2023, it was with the benefit of the judgment which the Respondent had obtained of her own motion, and its contents proved crucial. The Applicant did not know that that would be the case and so, at that stage, there was no debate about the contents of the judgment. When he attempted to respond at administrative review stage, he was met with a refusal to consider new material.
67. The writer of the May 2024 decision did go on to respond to part of what he had said about the judgment, but I am not satisfied that his case about the contents of the judgment was fully considered. As Singh LJ said in Balajigari at [61], that process was insufficient.
68. I therefore conclude that the Applicant was, in effect, ambushed by the Respondent’s reliance on the judgment of the Hong Kong Court of Appeal. In those circumstances, whilst this case is not on all fours with Balajigari, I am satisfied that there was material procedural unfairness and I cannot be satisfied that the outcome would have been the same if a fair process had been followed.
Conclusion
69. The claim for judicial review fails on Grounds 1, 2 and 3 but succeeds on Ground 4.
70. I am not persuaded that there is a need for declaratory relief. That is because I see no defect in the rules or policy relating to administrative review. The error in this case occurred because the decision maker wrongly disregarded the need for a fair procedure.
71. However, the decision of 18 May 2024 will be quashed and must be reconsidered.
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