JR-2024-LON-002176

• Status of case: Unreported
• Hearing date: 10 Jul 2025
• Promulgation date: 25 Nov 2025
• Publication date: 5 Dec 2025
• Last updated on: 5 Dec 2025

The decision

Case No: JR-2024-LON-002176
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

14th November 2025
Before:

UPPER TRIBUNAL JUDGE PINDER

- - - - - - - - - - - - - - - - - - - -

Between:

THE KING
on the application of

OMAR BASIL OTHMAN AL-KAISSY AND OTHERS
Applicants
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -

Mr G Lee, Counsel
(instructed by Garth Coates Solicitors), for the Applicants

Mr T Yarrow, Counsel
(instructed by the Government Legal Department) for the Respondent

Hearing date: 10th July 2025

- - - - - - - - - - - - - - - - - - - -

J U D G M E N T

- - - - - - - - - - - - - - - - - - - -

Judge Pinder:

A. Introduction

1. This is an application for judicial review, in which the Applicants seek to challenge a decision of the Respondent dated 17th May 2024, which upheld on administrative review an earlier decision of 7th May 2023 to refuse the Applicants’ further leave to remain applications as a representative of an overseas business and his dependants.

2. The first Applicant, Mr Al-Kaissy, is the main Applicant. He held entry clearance and subsequently leave to enter in the category of Overseas Business Representative (‘OBR’). He is a national of Jordan, as are his dependants. On 16th January 2023, the Applicants applied for extensions of their leave, which was refused by the Respondent on 7th May 2023. The second and third Applicants are Mr Al-Kaissy’s wife and child and their judicial review applications, as were their extension of leave applications, are entirely dependent on that of the first and main Applicant. For this reason and for ease of reference, I will in the main refer to Mr Al-Kaissy as the Applicant, in the singular.

3. The reason for refusal underpinning both of the Respondent’s decisions is paragraph 9.9.9(b) of the Immigration Rules, found in Part 9 to the Rules concerning general grounds for refusal. This was on the basis that the Applicant had not supplied additional information in support of his OBR application, which had been requested by the Respondent on 14th April 2023.

B. Procedural history and factual background

4. The background and procedural history is well known to both parties and I do not rehearse this in detail. As I have also addressed further below in my judgment, the premise of the Applicant’s judicial review has developed significantly within these proceedings.

The Applicants’ application for further leave to remain to the Respondent

5. Following from the Applicants’ application for further Leave to Remain submitted on 16th January 2023, the Respondent made a number of requests for further information prior to reaching a decision on whether to grant the extensions. At this time, the Applicant and his family were legally represented by a solicitor, Mr Ahmed Ajina, of ARP Law Group (‘Mr Ajina’).

6. The first such request was on 7th March 2023 and following receipt, this request was duly responded to, within the requested timescales, on the Applicant’s behalf by Mr Ajina, who furnished further documents and/or information to the Respondent on 16th March 2023. There was a second request made by the Respondent on 23rd March 2023, which again was responded to on 29th March 2023, again within the requested timescales and on the Applicant’s behalf by Mr Ajina.

7. A third request was made by the Respondent on 14th April 2023, which like the others, the Respondent maintained having sent to Mr Ajina by e-mail. It is this request that has become centre-stage in these proceedings because the Respondent set out in her refusal decision of 7th May 2023 that she never received a response to this request from the Applicant, via Mr Ajina or otherwise. Thus, the Respondent invoked paragraph 9.9.9(b) of the Immigration Rules and the Applicants’ applications were refused.

8. Within his application for administrative review and in pre-action correspondence, the Applicant, through those representing him, disputed that the Respondent had ever sent the third and last request (of 14th April 2023). He maintained never having received such a request. It was also the case that the Applicant maintained that neither he, nor his legal representatives, had been served with the Respondent’s refusal decision of 7th May 2023 and this was the basis for the Applicant having lodged his application for administrative review out of time.

The Applicant’s judicial review application

9. The Applicant lodged this claim for judicial review on 16th August 2024, with Mr Ajina initially detailed as the legal representative in the UTIAC1 completed form but with those details crossed out by hand. The statement of truth was completed by the Applicant himself and the grounds of challenge are not signed but they read as though written by a legal professional.

10. The grounds of claim continued to argue that the Respondent’s decisions were unlawful because the email of 14th April 2023 from the Respondent to Mr Ajina had never been received (or indeed, as it was alleged, sent). Therefore, the decision, predicated as it was on the Applicant’s failure to respond to that request, was unfair. As already referred to, this was all premised on the same factual allegation raised by the Applicant that the Respondent had failed to notify him of the request for further information of 14th April 2023 and of her refusal decision of 7th May 2023.

11. The Applicant then lodged an application to amend his grounds of challenge on 11th September 2024, with an application notice and statement of truth signed by Mr Ajina. The amended grounds were settled by counsel, and did not raise any substantially new or different submissions to those contained in the grounds settled earlier on or around 16th August 2024.

12. These amended grounds were also accompanied by a signed witness statement from Mr Ajina dated 17th September 2024, which stated as follows at para 9:

“I can categorically confirm that I did not receive the email from the Home Office on 14 April 2023 and had no knowledge of this email until we received notification of the decision in February 2024. As I had not known of the existence of the email, I did not inform the Applicant of this, and the Applicant like me, only became aware of this email in February 2024.”

13. The reference above to February 2024 is to correspondence that was sent to Mr Ajina by the Respondent on 21st February 2024, in response to a pre-action protocol (‘PAP’) letter lodged by Mr Ajina on the Applicant’s behalf. In this PAP letter, a complaint was raised that there was unreasonable delay in the Applicants’ applications being considered and decided by the Respondent.

14. The amended grounds of challenge and factual dispute raised by the Applicant were contested by the Respondent in her Summary Grounds of Defence dated 29th October 2024. The Applicant was initially refused permission to apply for judicial review on the papers by Upper Tribunal Judge Grey on 14th November 2024, who was satisfied that the request for further information in question of 14th April 2023 had been served on the Applicant’s solicitor. Judge Grey noted that other letters/e-mails addressed to Mr Ajina had been received and responded to prior to 14th April 2023.

15. Following renewal to an oral permission hearing, Upper Tribunal Judge Perkins granted permission to apply on all grounds, determining as follows:

‘(10) […] It might be that the respondent has acted lawfully at all times in the reasonable belief that a request was made but I find it unattractive that the applicants lose out because of a systemic failure if that is what happened.

(11) I find it arguable as a matter of fact that the document was never received and just about arguable that the respondent acted unfairly in all the circumstances.’

16. Judge Perkins also acceded to, at the permission hearing, an application from the Applicants to rely on additional evidence, taking the form of a letter from an IT company based in Dubai. This stated that the company had carried out investigations on the Applicants’ representatives’ email systems and did not find, based on certain parameters applied, any evidence of the relevant notifications being received. The signed witness statement of Mr Ajina, referred to at para 12 above, was also relied upon and admitted into the proceedings.

The judicial review proceedings post-permission to apply

17. Following the grant of permission to apply, standard directions were issued for the parties to plead their respective positions. The Respondent filed and served her Detailed Grounds of Defence on or around 2nd March 2025. The Respondent continued to contest the basis for the Applicant’s judicial review application and exhibited further records of their e-mail communications to Mr Ajina, and also providing relevant background information to aid understanding of its immigration case-working database, known as the Atlas system. This was in addition to that disclosed within the Respondent’s Acknowledgment of Service and Summary Grounds of Defence.

18. Within her Detailed Grounds of Defence (‘DGDs’), the Respondent also raised from para 23 matters concerning Mr Ajina external to these proceedings. In summary, this included the following:

(a) Mr Ajina did not (then) hold a practicing certificate and remained on record for the Applicants;
(b) the Respondent had become aware that Mr Ajina had been the subject of at least two complaints to the Legal Ombudsman, in which allegations were made against him of failures to communicate with the Home Office and his clients, which the Respondent described in her DGDs as having “strong resemblances to the issues in the present proceedings”; and
(c) the Respondent understood Mr Ajina to be the subject of proceedings with the Solicitors Regulation Authority, with the allegations raised against him within those proceedings appearing to include that Mr Ajina provided misleading statements to his clients and his former firm about the progress of immigration matters, and altered an agreement to facilitate misleading information to be provided to the Home Office, which he knew not to be true.

19. A later judgment of the Solicitors Disciplinary Tribunal (‘the SDT’) dated 3rd April 2025, following a hearing on 7th March 2025, was also disclosed into these proceedings. In summary, this ordered that Mr Ajina, the respondent in those proceedings, be struck off the Roll of Solicitors. The SDT found as follows on the balance of probabilities against Mr Ajina:

(a) in deliberately facilitating the creation of a formal document that was inaccurate, Mr Ajina had abused the trust that the public had in him and the legal profession as a whole (paras 41.3-4 of the Judgment [57]);
(b) Mr Ajina had acted dishonestly by the standards of ordinary decent people - ordinary decent people would consider it dishonest for a solicitor to facilitate the creation of a formal document which gave a misleading impression in support of an immigration application (paras 41.6-8 of the Judgment [58]);
(c) Mr Ajina acted without integrity in facilitating the document referred to immediately above (paras 41.9 of the Judgment [58]);
(d) this was also found to amount to generating false evidence (paras 41.12-14 of the Judgment [59]);
(e) Mr Ajina was not acting in the best interest of his clients, as he clearly provided false information to the Home Office knowing the truthful position could jeopardise the clients’ applications (paras 41.10-11 of the Judgment [58]).

20. The Upper Tribunal was notified on 12th March 2025 that the Applicants had changed legal representatives to No 12 Chambers. On 24th March 2025, the Respondent filed and served a witness statement dated 18th March 2025 from Ian Marson, of the Migration & Borders Technology Portfolio within the Digital, Data & Technology (DDAT) command of the Home Office, addressing and refuting the Applicants’ allegations that the correspondence relevant to these proceedings was not properly served on the Applicants.

21. On 22nd April 2025, the Applicants, through their then-legal representatives No 12 Chambers, filed and served a response to the Respondent’s DGDs. This reply, amongst other things, submitted that the Respondent’s concerns with Mr Ajina’s practice were “wholly speculative and unsupported by evidence before this Tribunal” (para 2). Submissions were also made emphasising a continued lack of evidence that the Applicants had been served with the correspondence in question by the Respondent.

22. It is unclear whether this reply was prepared with knowledge of the SDT judgment referred to at paras 19 above. There is no reference to this judgment in this reply. Instead, the author from No 12 Chambers stated at para 3 that “(t)he focus must remain on whether the Applicants were properly notified and responded, not on unfounded attacks on their past representative. The Applicants respectfully request the Tribunal to disregard any insinuation of adverse conduct by Mr. Ajina, as it is not supported by any determination or reliable evidence before this court.”

The Applicants’ adjournment application of the substantive judicial review hearing

23. The substantive hearing in the Applicants’ judicial review application was then listed for 13th May 2025. Leading up to this, the Applicants did not comply with the relevant deadlines for the filing and serving of skeleton arguments and trial bundles. On 9th May 2025, the Applicants’ then-legal representatives applied on the Applicants’ behalf for an adjournment citing health difficulties being experienced by the main Applicant. It was said that these were a direct result of the uncertainty for the Applicants surrounding these proceedings and the confirmation that Mr Ajina had been struck off. A copy of the SDT judgment was appended to the Applicants’ adjournment application.

24. This adjournment application was opposed by the Respondent and in light of the short notice of the application, I directed that this be considered at the hearing on 13th May 2025.

25. At the hearing, the main Applicant did not attend but was represented by Counsel from No 12 Chambers. The medical evidence submitted by the Applicants and relied upon in support of the adjournment application consisted of an examination note from a medical practitioner from the Accident & Emergency department at Charing Cross Hospital. This confirmed an examination of the Applicant on 9th May 2025, who presented unwell. The doctor detailed their impression of a panic attack, secondary to anxiety, with the Applicant able to function and open to a referral, and a diagnosis on that occasion of anxiety.

26. The Applicant relied upon a further medical report prepared by Dr M Al-saidi dated 12th May 2025. In this report, Dr Al-saidi, Consultant Psychiatrist and Clinical Lead, confirmed that the Applicant had presented with severe anxiety and depression, exacerbated by prolonged stress from the issues that he had experienced in relation to his immigration situation. Dr Al-saidi stated that the Applicant’s presentation was consistent with a provisional diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder (DSM-5 criteria), secondary to chronic stress and Adjustment Disorder from the judicial process. Dr Al-saidi also stated that his current mental state rendered him unfit to give clear instructions and attend or participate in the judicial review hearing on 13th May 2025.

27. The Applicant’s Counsel confirmed that he, and those representing the Applicant, were effectively without instructions as it had not been possible to ascertain the Applicant’s understanding of the proceedings and his position as a consequence. This had been the case since the Applicant had become aware of his previous solicitor being struck off.

28. The adjournment application continued to be opposed by the Respondent and I heard brief submissions from both advocates at the hearing on 13th May 2025. Following this, I decided to adjourn the hearing and I issued a separate decision to that effect. In brief, I was satisfied that it was in the interests of justice to adjourn the substantive hearing so as to enable the Applicants to fully consider their position and to fully present their case at a substantive hearing, if so advised. I was satisfied that this had not been possible as a result of the main Applicant’s ill-health. It was regrettable to delay the proceedings further on that occasion but I acknowledged that these proceedings raised important matters for the Applicants.

29. The matter was then re-listed for a substantive hearing to take place before me on 10th July 2025, with directions for the parties to file and serve their respective skeleton arguments and to agree the trial bundle.

Substantive judicial review hearing on 10th July 2025

30. Leading up to the hearing on 10th July 2025, there were a number of applications made to extend time for the parties to comply with the directions made on 13th May 2025. The Applicant also issued an application on 20th June 2025 seeking permission to amend his grounds of challenge, with amended grounds of challenge settled by Mr Lee of Counsel. The Applicants’ skeleton argument, also settled by Mr Lee, followed on 26th June 2025. In the interim, the Upper Tribunal was also notified of another change of legal representative for the Applicants on 24th June 2025, when the current firm of solicitors representing the Applicants, namely Garth Coates Solicitors, came on the record.

31. The Respondent was able to lodge on 4th July 2025 her skeleton argument, which also responded to the Applicants’ application for permission to amend grounds and addressed the amended grounds in substance as well.

32. Both parties agreed that I should hear submissions on the substance of the Applicants’ amended grounds effectively as a rolled up hearing with permission to amend falling to be considered on my analysis of the merits of the Applicants’ amended grounds.

33. I confirm that I have considered the trial and authorities bundles very carefully, together with a subsequent set of written submissions from both advocates. I heard oral submissions from both parties’ advocates, Mr Lee for the Applicant and Mr Yarrow for the Respondent.

34. I am grateful to both advocates, and to those instructing them, for their comprehensive and very helpful written and oral submissions and trial bundles. I am particularly grateful for the pragmatic approach taken by Mr Yarrow and those instructing him following the Applicants’ application to amend their grounds of claim, since this permitted the substantive hearing to be effective on 10th July 2025.

C. The impugned decisions of the Respondent

35. In so far as is relevant to these proceedings, the Respondent’s decision to refuse the Applicant’s application for further leave to remain as Representative of an Overseas Business dated 7th May 2023 stated as follows:

“The Immigration Rules, Part 9: Grounds for Refusals, paragraph 9.9.9(b) states the following:

1. An application for entry clearance, permission to enter or permission to stay may be refused where a person fails without reasonable excuse to comply with a reasonable requirement to:
(b) provide information;

We wrote to you on 14/04/2023 asked you to provide evidence and information in support of your application but you have failed to reply within the required timeframe and none of the requested information has been supplied by you.

The Immigration Rules Appendix: Representative of an Overseas Business, paragraph 2.1 states: The applicant must not fall for refusal under Part 9: grounds for refusal. Your application is therefore refused under the Immigration Rules Part 9 paragraph 9.9.1. and the Immigration Rules Appendix: Representative of an Overseas Business, paragraph 2.1.”

36. The Respondent’s administrative review dated 17th May 2024, upholding the above refusal decision, included the following of relevance:

“Please note that although your application has been made out of time, I have exceptionally accepted your application.

Upon review, I do not consider there to be a caseworking error. The caseworker served the decision to refuse your application to the registered email address on your application.

Your application was considered and decided on the basis of the evidence submitted before the date on which the application was decided. I will not consider new evidence or information when reviewing a decision that was provided after that decision has been taken, unless it meets the requirements
specified in paragraph AR2.4 of Appendix AR of the Immigration Rules. It is your responsibility to ensure that all appropriate evidence is submitted with the application for leave to remain.

The evidence that you have provided with this application was not sent with the original application. It 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.

(…)

The caseworker wrote to you on 14/04/2023 asked you to provide evidence and information in support of your application but you have failed to reply within the required timeframe and none of the requested information has been supplied by you.

As such, by not responding to the caseworkers request for further evidence and information, this clearly falls foul of the mentioned rule. As such, I consider the decision to refuse your application to be correct. (…)”

D. The Applicants’ application for permission to amend their grounds of judicial review

37. The Applicants confirmed that the target of their judicial review challenge remains the same, namely the decisions of 7th May 2023 and 17th May 2024.

38. Mr Lee submitted on behalf of the Applicants that pursuant to the principles set out by the Court of Appeal in R (Spahiu) v SSHD [2018] EWCA Civ 2604, [2019] 1 WLR, this is a case where a degree of procedural flexibility is required “so as to do justice as between the parties” – see [63] of the judgment. This is because the disclosure by the Respondent, in her DGDs, materially changed the factual background to this case.

39. Mr Lee emphasised that the need for procedural flexibility in certain cases was also highlighted by Lewis J in R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin), particularly where, as set out at [66] of the judgment, the issue is “limited, defined and discrete”. McCombe LJ also stated in SSHD v Said [2018] EWCA Civ 627 that “(…) the touchstone is fairness to the parties”. Mr Lee relied upon R (Hussain) v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin), [2018] PTSR 142 per Sales LJ at [91] for the proposition that judicial review grounds can be amended to take into account material events that have happened since the claim was lodged.

40. Mr Lee’s submissions in support of his application to amend were otherwise closely aligned to his substantive submissions concerning the issues raised by this claim, namely that the interests of justice and fairness militate against an approach, which would “visit the sins of the solicitor onto his lay client and that potential injustice can only be avoided, in this case, by allowing a sufficient degree of procedural flexibility to allow the Applicant to amend his claim”.

41. The Respondent, and Mr Yarrow on her behalf, have adopted, as I briefly referred to above at para 34, a pragmatic approach in response to the Applicants’ amendment application. The Respondent confirmed having reviewed her position upon receipt of the amendment application. She considered that she was in a position to be able to respond within the time available without prejudicing her own, or the public interests.

42. Thereafter, the Respondent also confirmed that she did not oppose the application to amend on any point of timeliness or prejudice, and she was content that the Tribunal approach the third stage of the familiar principles set out in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, Denton v T H White Ltd [2014] EWCA Civ 906 and Hysaj v SSHD [2014] EWCA Civ 1633. Namely, by reference to the merits of the proposed amended Grounds – in short, if (contrary to the Respondent’s substantive position) the Tribunal considered the amended Grounds to have merit, the Respondent was content that the application be allowed.

43. It will be apparent from my consideration of the issues set out in section E of my judgment, that I have formed the view that the Applicants’ amended Grounds carry sufficient merit so as to justify my granting permission to the Applicants to amend their grounds of challenge.

44. I also consider that the Respondent has not been prejudiced by the shift in the Applicants’ grounds of challenge, since this arose from information that the Respondent rightly disclosed into these proceedings when filing and serving her DGDs and which later came to light through the SDT’s judgment of 3rd April 2025. I am also in no doubt that, had the Applicants been aware of these subsequent developments either at the outset of their judicial review application or at a much earlier point, they would have acted on this information without delay.

45. I therefore grant permission to the Applicants to amend their grounds of claim. It follows from this that I grant permission to the Respondent to amend her Detailed Grounds of Defence, in so far as these are contained in the Respondent’s skeleton argument of 1st July 2025.

46. In support of his application to amend grounds, the Applicant also filed and served a witness statement from the Applicant himself dated 9th July 2025. In summary, this statement provides further detail surrounding the Applicant’s leave to remain application, how he came to know on 21st February 2024 that this application had been refused by the Respondent on 7th May 2023, and what he had been told by Mr Ajina. Mr Al-Kaissy stated at paras 7 and 14 of this statement as follows:

“7. We had no reason to doubt Mr. Ajina who was then a licensed solicitor, up to April 2025 when he got struck off from the SRA for misconducts, dishonesty and for misleading applicants with their immigration matters.
(…)
14. My business and I have been victims of a dishonest solicitor. I did not know that he was reported and investigated by the SRA since 2021, until April 2025 when the SRA struck him off, he was at large harming us and other applicants and damaging our and others businesses and lives. No indication was published by the SRA or law society that the lawyer is investigated for misconduct prior to this. Whilst we had no fault of our own, and after all what have been revealed to the Home Office, court, we became harmed victims of deception and fraud, yet we are the ones whom are being punished and refused to have our rights for fair chances to recover and survive these devastating impacts and events.”

47. For the same reasons as I have set out above and for completeness, I grant permission to the Applicants to rely on Mr Al-Kaissy’s statement. Mr Yarrow did not raise any objections to the same and asked me to consider whether the statement should be admitted in line with the Applicants’ permission to amend application.

E. Discussion, Analysis and Conclusions

Mr Ajina, former solicitor, and the Solicitors Disciplinary Tribunal judgment of 3rd April 2025

48. As I have summarised above, the Applicants had initially argued in their judicial review application that the Respondent’s case-working had been deficient and the Applicants had never been served with the request for further information of 14th April 2023. The Applicants no longer assert this, having reviewed their position following receipt of the SDT judgment against Mr Ajina. The Applicants set out instead that it is obvious that those findings have clear implications for the Applicants’ own case, built as it was, around the assertion, supported by Mr Ajina’s own statement, that neither he nor his firm of solicitors had ever received the Respondent’s e-mail of 14th April 2023.

49. I have already summarised the SDT’s findings above at para 19. Neither party invited me to make any positive findings in respect of any other matter, including the Applicants’, in which Mr Ajina was involved. That is entirely appropriate since Mr Ajina has not been given notice of the same nor is he a party to, or otherwise still involved in these proceedings.

50. The Respondent at para 24 of her DGDs set out that I am to weigh up “whether it is more likely as a matter of fact that there has been some system, process or administrative failure on the part of the SSHD or on the part of the Applicants (most likely through their representative, Mr Ajina)”. A number of considerations were then listed by the Respondent, which I have summarised at para 18 above, and which have now been superseded, and perhaps crystallised, with the SDT’s judgment of 3rd April 2025.

51. Through their amended grounds, the Applicants raise a single ground of challenge, which is that in light of the information available concerning Mr Ajina’s practice and the likelihood of him being at fault in relation to the Respondent’s correspondence of 14th April 2023, it would be unfair of the Respondent to continue to maintain her refusals of the Applicants’ leave to remain application. This is specifically where the Applicant was blameless, and the failure to respond to the email likely came about through dishonest actions of the Applicant’s previous solicitor.

52. Mr Lee submitted that the SDT judgment, together with what else is known of the Applicants’ (faultless) conduct more generally, leads to the unavoidable inference that it is more likely than not that the Respondent served the Applicants, through Mr Ajina, with the request of 14th April 2023 and that the Applicants were not informed of this by Mr Ajina. The remainder of Mr Ajina’s conduct sought instead to cover this up and to blame the Respondent. Mr Lee stressed that this included positive actions being taken by Mr Ajina and not just bare denials, demonstrated by the fact that Mr Ajina commissioned an IT report (considered at renewed permission stage within these proceedings) and of his own witness statement – see paras 12 and 16 above. Mr Ajina’s evidence is directly opposed to the Respondent’s own evidence and ought to be considered in light of the findings reached by the SDT against Mr Ajina.

53. On the information put before me by both parties, I have no hesitation in finding that the Applicants themselves were not at fault for failing to respond to the request of the Respondent for further information made on 14th April 2023. The Respondent herself has not suggested otherwise. As I have summarised at para 50 above, she also suggests that there has likely been a failure on Mr Ajina’s part. The Applicants’ own conduct prior to this request of 14th April 2023 is also indicative of this since the Applicants, upon being made aware of earlier requests for further information and documents, were able to respond, through Mr Ajina. Matters clearly went wrong however after the Respondent’s request of 14th April 2023.

54. Whilst I am not in a position to find that Mr Ajina has been dishonest in his dealings with the Applicants and/or with the Respondent, and indeed in turn with this Tribunal, the findings of the SDT do cast a very negative light on Mr Ajina’s practice and the lengths that he was prepared to go to when appearing to cover up some earlier failings in the two client cases considered by the SDT

55. I note in particular at para 3 of the SDT judgment that Mr Ajina self-reported his conduct to his supervising partner in respect of ‘Client A’, one of two client cases which formed the subject of the referral to the SRA and the subject of those proceedings. This conduct consisted of Mr Ajina having presented false information to Client A in respect of the progress of visa applications that he was retained to make on Client A’s behalf. This led to Mr Ajina being suspended by the firm of solicitors, his employers, and an internal investigation. The SRA’s own investigation also revealed that Mr Ajina had provided misleading information to clients as to the status of their immigration cases and had caused his colleagues to provide misleading information to clients. In addition, the SRA’s Forensic Investigation Officer noted that he had assisted in the production of documents, containing misleading information, that were provided to the Home Office as part of an immigration application. Findings subsequently endorsed by the SDT, as summarised at para 19 above, and which include dishonesty, acting without integrity, generating false evidence and providing false information.

56. As the Respondent herself noted at para 24(b) of her DGDs, the allegations that Mr Ajina then faced following two complaints being made to the Legal Ombudsman, of failures to communicate with the Home Office and clients, held “strong resemblances to the issues in the present proceedings”.

57. In light of the above and all of the information that has been presented as part of these proceedings, I am led to the unavoidable inference that the same or similar has happened with the Applicants, namely that they were likely not informed of material correspondence received from the Respondent on 14th April 2023 and on 7th May 2023 and that false information was likely later presented to them and others by their own solicitor.

58. It is with this premise that I now consider the Applicant’s judicial review ground of procedural unfairness.

Procedural Unfairness - Discussion

59. Mr Lee submitted, on behalf of the Applicants, that the Respondent has an overarching and continuing obligation to act fairly towards the Applicant and that this is an exceptional case. He grounds this submission on three propositions:

(a) The common law duty of fairness informs public law proceedings and that duty is justiciable;
(b) A decision can be unfair even where a public authority has done nothing “wrong”; and
(c) A dishonest lawyer is an exceptional circumstance or context, which it turn justifies an exceptional course of action.

60. Mr Lee emphasised that there is sufficient flexibility in the fairness doctrine to provide a remedy for this particular Applicant, as a result of the particularly exceptional circumstances in which his application, the Respondent’s decision-making and these proceedings have developed. Mr Lee relied on the well-known passage of Lord Mustill’s judgment in R v Home Secretary ex p Doody [1994] 1 AC 531 with specific reference to the third principle:

“(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.”

61. Three other cases, that were relied upon by Mr Lee, all arose out of litigation concerning the Points-Based System (‘PBS’) - as it was then in force - and how the SSHD was to administer the revocation of sponsorship licences, when this in turn impacted on sponsored individuals. All three cases were statutory appeals, since rights of appeal still flowed from PBS decisions in those times.

62. The first of these cases is Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 00151 (IAC). Here the Upper Tribunal reiterated the third ‘Doody principle’, cited above at para 60, reiterating at [18] that “that what fairness demands is dependent on the context of the decision and the appellant’s particular circumstances.” The relevant decision to refuse further leave to remain as a Tier 4 (General) Student Migrant was found by the Upper Tribunal not to be in accordance with the law (an available ground of appeal at the time). This was because of a failure to comply with the common law duty to act fairly in the decision-making process when an applicant had not had an adequate opportunity of enrolling at another college following the withdrawal of his sponsor’s licence, or of making further representations, before a decision was made by the Respondent in the application.

63. The second case is Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC), which also concerned the Respondent’s procedures when revoking a sponsorship licence and deciding applications from sponsored individuals affected in the interim by such revocation. The outcome of this reported appeal was the same as Thakur, namely that the Secretary of State should afford a (sponsored) applicant a reasonable opportunity to vary their application and it would be unfair not to provide such an opportunity. Mr Lee placed particular reliance on the passage at [22] of the decision, placing emphasis on an applicant’s innocence and ignorance of the events that ultimately caused them detriment:

“22. Where the applicant is both innocent of any practice that led to loss of the sponsorship status and ignorant of the fact of such loss of status, it seems to us that common law fairness and the principle of treating applicants equally mean that each should have an equal opportunity to vary their application by affording them a reasonable time with which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford sixty days for such application to be made.”

64. The third case is Alam v Secretary of State for the Home Department [2012] EWCA Civ 960, in which Sullivan LJ cited Patel with approval at [44]. Sullivan LJ added the following:

“(…) However, the obligation to give those applicants whose colleges had lost sponsorship status an opportunity to vary their application by giving them time to find a substitute college was imposed on the Secretary of State as a matter of fairness in circumstances where there had been a change of position of which the Secretary of State was aware, but the applicants were themselves not at fault in any way: they were “both innocent of any practice that led to the loss of the sponsorship status and ignorant of the fact of such loss of status”, see paragraph 22 of the Upper Tribunal’s determination in Patel.”

65. The Upper Tribunal decisions of Thakur and Patel as well as the issue of the Secretary of State’s awareness, as raised by Sullivan LJ, were also considered by the Court of Appeal in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [38]. Here Sales LJ emphasised that in Thakur, Patel and Alam, it was not just a change of position that the Secretary of State was aware of but one that the SSHD had also brought about in circumstances in which the students were not themselves at fault in any way. Sales LJ contrasted this with the appellant in EK, ultimately reaching a different outcome to the other cases and refusing to find unfairness. This was because the circumstances in EK included the withdrawal of the appellant’s Certificate of Sponsorship by her educational provider due to an administrative error. The Secretary of State had not been made aware of the reasons for the withdrawal nor were they responsible for this:

“(…) In the present case, by contrast, the Secretary had no means of knowing why the Appellant’s CAS letter had been withdrawn and was not responsible for its withdrawal, and the fair balance between the public interest in the due operation of the PBS regime and the individual interest of the Appellant was in favour of simple operation of the regime without further ado.”

66. The lack of awareness, and indeed responsibility, from the SSHD, as drawn out in EK, was a feature that Mr Yarrow relied upon in response to the Tribunal’s and Court’s guidance in Thakur, Patel and Alam - it could not be said that the Respondent had been aware of any difficulties experienced by the Applicants in relation to their dealings with their own solicitor at the time of her decision-making on 14th April 2023, 7th May 2023 and on 17th May 2024. Mr Yarrow emphasised that these authorities concerned the procedures, or lack of procedures, present at the time in the Respondent’s decision-making process, not within considerations that may arise post-decisions.

67. Acknowledging the lack of awareness at the time of the relevant decision-making, Mr Lee reiterated the flexibility embedded in the principle of fairness. He drew my attention to Briggs LJ’s (as he then was) concurring judgment in EK, where he stated at [58] the following:

“First, the courts should in my view be slow to rigidify the essential fact-sensitive flexibility of the duty to act fairly, as summarised in the Doody case, in the passage quoted by Sales LJ above. The unpredictable variety of factual situations in which the duty may arise is such as to make it dangerous to seek to identify any more rigid principle as applicable to any particular class of situation.”

68. For completeness, Mr Lee also took me to the Court of Appeal’s judgment in R (Raza) v Secretary of State for the Home Department [2016] EWCA Civ 36; [2016] Imm AR 682, in which Clarke LJ confirmed at [38] that Patel remained good law, on its own facts. This was also noted in the majority in R (Pathan) v SSHD [2020] UKSC 41, [2020] 1 WLR 4506.

69. Drawing the above together, Mr Lee submitted that in order to strike a balance between the relevant competing interests, fairness did require, on occasion, additional obligations to be imposed on the Respondent, and this was one such exceptional case in a very fact-specific context.

70. With regards to a solicitor’s action and/or practice, Mr Lee relied on a handful of other authorities. Mr Lee cited the judgment of R v Immigration and Appeal Tribunal ex p Mehta [1976] Imm AR 38 and the judgment of Sedley LJ in R (Tofik) v IAT [2003] EWCA Civ 1138. At [25], Sedley LJ stated as follows:

“25. The law has historically regarded client and solicitor as one, at least to the extent that the latter acts as agent for the former. But in ex parte Mehta [1976] Imm AR 38 this court declined to take this approach in an immigration case where the client would have no worthwhile redress against the solicitor for the latter's error. There the lapse of time was only a week, and the Home Office was partly responsible for it. But the principle is the same: a client is not necessarily fixed with her or his solicitors' errors in seeking to oppose removal from the United Kingdom, at least when the client has been in no way responsible for them. In my judgment there is a real issue here for the IAT to decide.”

71. Like in the case of Mehta, the issue in question in Tofik was also a procedural one, namely an application to extend time for applying for leave to appeal from an adjudicator (as they then were) and whether the Immigration Appeal Tribunal (as it then was) was required to give reasons when refusing to extend time.

72. Both cases of Tofik and Mehta were further considered by the Court of Appeal in the appeal of FP (Iran) v SSHD [2007] EWCA Civ 13, where Sedley LJ concluded at [46] that “there is no general principle of law which fixes a party with the procedural errors of his or her representative (… and) no universal surrogacy principle”.

73. In the context of a human rights claim and whether a solicitor’s action or error was a relevant consideration to weigh in the balance, the Upper Tribunal gave guidance in the statutory appeal of Mansur (immigration adviser’s failings: Article 8) Bangladesh [2018] UKUT 00274 (IAC). The general principle reached in that appeal was that the “weight that would otherwise need to be given to the maintenance of effective immigration controls is not to be reduced just because there happen to be immigration advisers who offer poor advice and other services” but that the facts of the appellant in Mansur were “strikingly different”. The difference being that the OISC-regulated organisation, which had represented the appellant had, on the OISC’s own findings, “blatantly failed to follow the appellant’s specific instructions” and that failure was the sole reason for the appellant’s application for leave to have been treated as invalid by the Secretary of State (see [30]-[31]).

74. The next two paragraphs of Lane J’s, then President of the Upper Tribunal, are worth citing in full:

“32. The conclusions of the OISC investigation are highly material in determining whether this really is a rare case in which the misfeasance of a legal adviser can affect the weight to be given to the public interest in maintaining an effective system of immigration control. The OISC findings are clear and categorical. The position is far removed from that which we frequently see in this jurisdiction, where legal advisers are belatedly blamed but where there has been no admission of guilt and no finding of culpability by a relevant professional regulator.

33. Would confidence in the respondent’s system of immigration controls be diminished if, in the particular circumstances of this case, regard was to be had to the fact that, if IWP had complied with their client’s instructions, the appellant would have made a valid application for leave that is likely to have been successful? It seems to me plain that the answer to that question must be in the negative. On the contrary, public confidence in the system could be said to be enhanced if it were known that the system is able, albeit exceptionally, to take account of such a matter.”

75. Whilst acknowledging that Lane J’s observations in Mansur fall to be considered in an Article 8 ECHR context (which does not apply here), Mr Lee submitted that there was an additional feature present in this matter. This was the potentially dishonest actions of Mr Ajina, a layer significantly more serious and significant than the negligence considered in Mansur. Mr Lee argued that once the circumstances surrounding the refusal decision in this matter had become apparent, the only fair response to this would be to reconsider the decision providing an opportunity to the Applicants, once aware of Mr Ajina’s actions, to submit the missing documentation which the Respondent required to complete her consideration of their applications.

76. Mr Yarrow maintained, on behalf of the Respondent, that the Respondent could not be impeached for a decision that could only be considered lawful at the time it was taken, not having had any awareness at the time of any concerns relating to Mr Ajina’s practice or conduct. With regards to the remedy sought by the Applicants, namely that the Respondent be mandated to reconsider her decision, Mr Yarrow submitted that it was difficult to see what this would achieve, since the Respondent had reviewed her decision within these proceedings and had decided not to reach a different conclusion.

77. The reliance on the cases of Thakur and Patel was effectively erroneous – Mr Yarrow submitted - since it was not the case that there was sufficient information available to the Respondent, contemporaneously or near contemporaneously, in this particular case to have led her to decide the Applicants’ application differently.

78. It was not contentious between both parties that the principle of fairness is a flexible and a context-specific concept but similarly, Mr Yarrow maintained the position that it was not for this Tribunal to make findings of fact against Mr Ajina in the context of these proceedings. Mr Yarrow added that even if it was possible or appropriate to reach findings against him, there was nothing to suggest that Mr Ajina had been dishonest at the time that the Respondent sent her e-mail of 14th April 2025. Mr Yarrow suggested that he may have been negligent, in not having noted or informed the Applicants of that particular piece of correspondence. Further, that he may have embarked in fraudulent conduct only thereafter. Mr Yarrow argued that on the evidence before me, I was not in a position to reach a finding of dishonesty on the part of Mr Ajina and there was no unavoidable inference to that effect either.

79. Mr Yarrow submitted that all of this placed this case in line with that of the Court of Appeal in R v Home Secretary ex p Al-Medhawi [1990] 1 AC 876 and without the benefit of the considerations taken forward in protection cases through the appeal of FP (Iran). In Al-Mehdawi, the House of Lords effectively held that the individual student was bound by the procedural errors of their own legal representative, preventing them from using judicial review to challenge a decision that had resulted from their solicitor’s mistake.  To find in favour of the Applicants in this case, Mr Yarrow submitted, would cause the Respondent to implicate herself in an unfortunate set of circumstances, for which she was not in any way responsible, some two years after her decision taken in good faith.

80. Mr Yarrow also relied on different passages of Briggs LJ’s (concurring) judgment in EK, seeking to distinguish between unfairness in outcome and a breach in the SSHD’s common law duty to act fairly. At [56]-[59], Briggs LJ stated as follows:

“56. But the question whether the Secretary of State breached her common law duty to act fairly depends critically upon what her officials might be supposed to have known or considered likely, at the time when, probably shortly before making the decision, the withdrawal of the CAS letter became apparent. At that stage neither they nor, probably, anyone at the College itself was aware that a mistake had been made. As Sales LJ points out, the ordinary expectation of the Secretary of State on becoming aware of the withdrawal of a CAS letter would be that the sponsoring college had done so for good reason and, I would add, duly informed the applicant student of its decision to do so. A cancellation by mistake, coupled with a failure to inform the applicant student would, I would have thought, reasonably be regarded by those charged with the operation of the PBS scheme as a rare occurrence.

57. I recognise that the principle by reference to which Floyd LJ would decide this appeal is one which, if applicable, would give reasonable protection to applicants against mistakes by others of which they were in fact unaware at the time of the decision, and would lead to a successful outcome for the Appellant on this appeal. In my judgment however the proposed principle is not one which should be recognised in the present context, for two reasons.

58. First, the courts should in my view be slow to rigidify the essential fact-sensitive flexibility of the duty to act fairly, as summarised in the Doody case, in the passage quoted by Sales LJ above. The unpredictable variety of factual situations in which the duty may arise is such as to make it dangerous to seek to identify any more rigid principle as applicable to any particular class of situation.

59. Secondly, like Sales LJ, I consider that a fairness principle which would lead to success for the applicant in the present case would make too great an inroad into the simplicity, predictability and relative speed of the PBS process, contrary to the thrust of the PBS regime as laid down by the Immigration Rules, particularly in a situation such as the present, where the Secretary of State bears no responsibility at all for the mistake, or the lack of communication of it, which led to the unfair outcome for the applicant.”

81. Mr Yarrow highlighted that the above was arguably foreshadowed by Lord Bridge in Al-Mehdawi:

“These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.” (898 F)

82. Mr Yarrow otherwise concluded his submissions by focusing on the detriment potentially suffered by the Applicants as a result of their former solicitor’s actions: any disruption to the Applicant’s business and earnings ought to be remedied through a civil claim for damages. The loss of substantive rights to leave to remain could also be remedied with the Applicants leaving the UK and applying for entry clearance to return in the same category (the in-country route for extensions in this category now having been closed). Similarly, any impact on their human rights arising from any conduct of Mr Ajina’s and any analogies to be drawn with Mansur, were not for these proceedings and could be raised by the Applicants in the usual way through a human rights application.

83. Mr Yarrow confirmed that the entry clearance option had been raised by the Respondent with the Applicants in open correspondence and this issue also formed the subject of brief further written submissions at my request from both advocates, which I have also considered in further detail in my analysis below.

Analysis and Conclusions

84. I agree with Mr Yarrow that at the time of the Respondent’s relevant decisions, the Respondent was not to know of any difficulties likely to be experienced by the Applicants in their dealings with their former solicitor. This was further likely compounded by Mr Ajina’s apparent approach in how the Applicants’ administrative review application and initial pleadings in these proceedings were presented, namely to deny service of the Respondent’s request of 14th April 2023 and service of the Respondent’s decision of 7th May 2023 and to blame the Respondent for those failures.

85. It has not been necessary to engage with the Respondent’s evidence as to the service of those relevant decisions and correspondence since the Applicants before me at the hearing on 10th July 2025 were no longer disputing that service had been effected on Mr Ajina. It is appropriate to note however that the Respondent did fully respond to the Applicants’ initial allegations in her DGDs. As I have already recorded above at para 17, the Respondent included an explanation of the Atlas case-working system at paras 21-22 of the DGDs and a summary of the information that this disclosed at paras 30-32 together with a witness statement from Mr Marson providing further details (see para 20 above).

86. In light of the Respondent’s detailed evidence and the information set out in the SDT judgment, I prefer, on the issue of service, the evidence of the Respondent over that initially relied upon by the Applicants. The Applicants’ evidence that I refer to here is that which was commissioned on behalf of the Applicants and relied upon at a time when they were represented by Mr Ajina.

87. I do not however consider that the Respondent’s duties to act fairly ended with her decisions. I reach this conclusion in the very fact-specific context of this matter. For the reasons that I have set out below, I consider that when the Respondent became aware of potential concerns with regards to Mr Ajina’s practice - to use her words, when she became aware of the similarities between other complaints and allegations raised against him and that which could be gleaned in this case – the Respondent ought to have provided an opportunity to the Applicants themselves, as opposed to via Mr Ajina, to address such concerns. This further crystallised once the judgment of the SDT became available.

88. My reasons for the above conclusion are as follows:

(i) There is no universal principle of surrogacy between a lay client and their legal representative – FP (Iran) [46];

(ii) Whilst I make no finding that Mr Ajina was dishonest in his dealings with the Applicants, the Respondent and this Tribunal, I consider that there was sufficient suspicion that this may be the case when concerns were identified by the Respondent in her DGDs and when the SDT published its judgment. Sufficient concern in my judgment to warrant the Respondent, in accordance with her duty to act fairly, to re-visit the Applicants’ refused applications for further leave to remain;

(iii) Whilst the Respondent was not aware on 14th April 2023 and on 7th May 2023 of concerns in relation to Mr Anjina’s practice, I do not consider that this absolves the Respondent from considering at a later date whether there had been unfairness in her decision-making in respect of the Applicants. Within the authorities relied upon by the Respondent, the Courts have acknowledged that in certain circumstances unfairness may still arise despite a lack of awareness or knowledge on the part of the public body in question - See for example Al-Mehdawi where the Court cite at p.899 B-C [p.107 authorities bundle] the Court of Appeal majority judgment in Reg. v. West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd. [1974] Q.B. 24:

“The limits of certiorari are, in my judgment, well established and do not extend beyond defects or irregularities at the trial. I need not enumerate all the headings under which the relief has hitherto been granted, but they all fall within those limits, and they include fraud because fraud is recognised as vitiating proceedings. (…)”

(iv) None of the authorities addressed by the parties consider instances whereby a party’s solicitors’ failings stem from fraud. The closest that was considered as part of this hearing was Mansur, which concerned negligence and a failure to follow a client’s instructions. Negligence was also the context considered in Al-Mehdawi;

(v) The lack of authority as identified at (iv) above is likely explained by the fact that such cases may be very rare indeed. I agree with Mr Lee that Mr Ajina’s conduct, as recorded and found against him by the SDT, is an affront and strikes at the very heart of this country’s legal system. In particular, in the context of immigration law advice and representation, the provisions of such services is heavily regulated pursuant to s.84 of the Immigration and Asylum Act 1999 and in recognition of the vulnerabilities prevalent within this client-base;

(vi) The Respondent has held throughout a residual discretion to reconsider her decisions in respect of the Applicants. I am not persuaded by Mr Yarrow’s submission that my requiring the Respondent to exercise this discretion would be fruitless. The Respondent has not so far agreed to undertake such reconsideration. Her unwillingness mid-proceedings to compromise these proceedings on that basis, as confirmed by Mr Yarrow, was of course a matter entirely open to her but I do not consider that this is otherwise determinative of any subsequent reconsideration;

(vii) The Applicants are otherwise left wholly without remedy, arising from circumstances for which they are blameless. The availability of a remedy through existing appeal procedures was held to be a relevant consideration in Al-Mehdawi [p.901 F-H, p.109 authorities bundle]. The Applicants can no longer lodge an in-country application for extensions of leave to remain since the Overseas Business Representative route has since closed. The suggestion that the Applicants can leave the UK and apply for entry clearance is not an answer to the circumstances that they now find themselves in through no fault of their own. Leaving the UK entails significant cost, uncertainty and disruption. The Applicant’s health has already been significantly affected by his experiences thus far and from his point of view, this has directly resulted from his dealings with his former solicitor and the impact on his application with the Respondent. I accept Mr Lee’s submission that there is a balance to be struck in cases such as these between fairness to the individual and the maintenance of effective immigration controls, even in non-Article 8 cases. Expecting the Applicants to leave the UK, with all that that entails, does not strike such a balance;

(viii) Pursuant to Saini J’s judgment in Karagul & Ors, R (on the application of) v Secretary of State for the Home Department [2019] EWHC 3208 (Admin), “(t)he need for these common law protections is particularly acute where there has been a decision by the legislature to remove an appeal on the merits to an independent and impartial tribunal”.

89. In my judgment, the likely rarity of these circumstances places this matter and the Respondent’s duty to act fairly in a category of its own. My reasons above are limited to this case and nothing in this judgment, should be taken as reflecting, or giving rise to, any principle of wider application. As Briggs LJ stated: “(t)he unpredictable variety of factual situations in which the duty may arise is such as to make it dangerous to seek to identify any more rigid principle as applicable to any particular class of situation.”

90. Similarly, I do not consider that the public interest in the efficient operation of OBR applications is prejudiced by favouring, in this instance, the individual rights in question. I acknowledge that the Respondent had no awareness of the Applicants’ difficulties when case-managing and deciding the Applicants’ applications and that the Respondent must be permitted to administer the system in a timely manner with finality.

91. However, that same system is dependent on regulated lawyers acting in accordance with relevant codes of conduct and honesty. In instances like this case, where there is a concern that the Applicants have been disadvantaged by their lawyer acting contrary to this, I firmly consider that fairness, in this particular case, will require the Respondent to pause and review the unfavourable decision that was taken.

92. I am strengthened in my reasons set out above by the House of Lords’ judgment in Criminal Injuries Compensation Board, Ex Parte A, R v. [1999] UKHL 21; [1999] 2 AC 330; [1999] 2 WLR 974 (‘the CICB case’), which is a judgment specifically referred to by the Court of Appeal in FP (Iran) at [26] when Sedley LJ stated that “(a)spects of that decision (of Al-Mehdawi) may in any event now need to be reconsidered in the light of the House of Lords' speeches in R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330.”

93. The CICB case concerned a judicial review of a CICB decision refusing compensation with the Board having found that inter alia the applicant had failed to give all reasonable assistance to the Board or other authority in connection with her application for compensation. Through the applicant’s challenge, it was subsequently established, as recorded by Lord Slynn of Hadley in the leading judgment (and with which the other Lords agreed) that “the Board was led to proceed on evidence which was wrong and they did not have the true facts”. He stated that the application had been “a matter of crucial importance” to the appellant and that it was “not suggested that the (police) officer gave her inaccurate evidence deliberately, let alone fraudulently.”

94. The first ground pursued by the appellant in the CICB case was there was jurisdiction to quash the Board’s decision because that decision was reached on a material error of fact. This was a ground that Lord Slynn was inclined to accept but he preferred to “decide the matter on the alternative basis argued, namely that what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness.”

95. Lord Slynn then acknowledged the following:

“It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness. Thus I would accept that it is in the ordinary way for the applicant to produce the necessary evidence. There is no onus on the Board to go out to look for evidence, nor does the Board have a duty to adjourn the case for further enquiries if the applicant does not ask for one. I accept as a general proposition the statement of Hutchinson, J. in Reg. v. Criminal Injuries Compensation Board, Ex parte Parsons (unreported) [17 January 1990]:

“Provided reasonable steps are taken to obtain material and place it before the Board, and provided the material that has been obtained is fairly deployed and there is no concealment or unfair advantage taken, then . . . the Board has fulfilled its proper function.”
Nor is it necessarily the duty of the police to go out to look for evidence on particular matters.”
96. The above resonates with the Respondent’s conduct at the time of her decision-making, which on the information available to her then, cannot be said to have been faulty.

97. Key in Lord Slynn’s reasoning however appeared to be the following:

• The police have a special position in these cases and the Board is very dependent on the assistance of and the co-operation of the police who have investigated these alleged crimes of violence;
• Had the missing medical report, which supported the appellant’s case for compensation, been provided, it would not have been possible for the Board to say that the medical evidence gave no assistance in determining the Applicant’s case for compensation.

98. Lord Slynn’s overall conclusion is worth citing in full:

“I consider therefore that, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the Board in the obtaining of evidence, that, there was unfairness in the failure to put the Doctor's evidence before the Board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done.

That leaves the third question which in one way is the most difficult. The events happened and the Board's hearing took place a long time ago and the difficulties of re-opening the matter now are obvious. On the other hand, the only new evidence involved is documentary and it is possible for the Board to consider whether Dr. West's report changes the picture in the applicant's favour. Despite the difficulties, a breach of the rule of natural justice having been established, I would quash the decision and remit the matter to the Board for reconsideration in the light of that report.”

99. As I have set out above, I consider that solicitors, specifically authorised by the 1999 Act to act on behalf of this especially vulnerable cohort, also hold a “special position”. By analogy, the Respondent is very dependent on their assistance and co-operation.

100. Thus and for the reasons set out above, on the special facts of this case, I consider that there was unfairness in the failure to respond to the Respondent’s request of 14th April 2023 and had the Respondent been aware of the apparent failures of Mr Ajina to notify the Applicants of this correspondence, I am satisfied that the Respondent would not have decided the Applicants’ decision in the way that she did at the time.

101. In light of the above, I would quash the Respondent’s decisions of 7th May 2023 and 17th May 2024 and remit the matter to the Respondent for reconsideration.

102. The parties are directed to agree an order to reflect the terms of this judgment. The order should address any consequential matters, including any application for permission to appeal and costs.

~~~~0~~~~