Tribunal decisions

The decision

Case No: JR-2024- LON-003072

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

Before:

UPPER TRIBUNAL JUDGE McWILLIAM

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Between:

THE KING
on the application of
ADRIATIK CEJKU
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
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Mr J Gajjar
(instructed by Fortis Legal solicitors ), for the applicant

Mr M Biggs
(instructed by the Government Legal Department) for the respondent

Hearing date: 26 June 2025

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J U D G M E N T

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Judge McWilliam:

Introduction
1. The claim is a challenge brought by the Applicant against the decision of the Respondent to refuse his application for entry clearance as a skilled worker which was maintained on Administrative Review (AR). Permission to bring judicial review proceedings was granted by UTJ Hurst on 23 January 2025 on both grounds.
2. Mr Gajjar did not pursue the second ground. The Applicant relies on ground one. This can be summarised as follows:
Ground 1: The Applicant submits that the Respondent has engaged in procedural unfairness. In the absence of disclosure from the Respondent, the allegations that he engaged in deception was of such a level as to warrant immediate refusal has been made without giving him the opportunity to respond, either adequately or at all.
The background
3. There are various dates given of the original decision to refuse the application. The parties agreed that it is dated 8 December 2023 (“the original decision”). This decision is not in the bundle. The AR is dated 7 August 2024. There is a revised decision which is dated 7 August 2023 (“the revised decision”). Both parties agree that the date on the latter should be 7 August 2024. This is clear from the content of the AR.
4. In the AR the Respondent maintained the decision. This can only relate to the decision of 8 December 2023 (“the original decision”). With this application the Applicant submitted an English Language Testing System certificate (“IELTS”), to support that he had successfully completed an English language test on 13 September 2023, which the Respondent says is not genuine. In the grounds for AR the Applicant submitted an English Language Test Certificate (“ETRC”) to support that he had successfully completed an English Language test on 29 April 2024. The Respondent maintained the original decision on AR. Furthermore the Respondent said that the ETRC is not genuine and the test that it concerned was taken by a proxy. The Respondent relied on a Document Verifications Report (DVR) to support the decisions in respect of both documents. The Respondent in the AR states that, “ a revised decision letter is enclosed and explains the correct refusal reasons. As there are additional reasons for the refusal, you are entitled to apply for a second AR. The revised decision refuses the application on the basis of the two fraudulent documents. The AR refers to the revised decision and says it is enclosed with it.
5. In the Applicant’s grounds for AR he said that he took the IELTS test at an authorised test centre and received the certificate on completion of the test. He said that he trusted the credibility of the test centre and believed that it was legitimate. He said that he submitted the ETRC to support that he had taken another test at a different test centre. It is asserted by the Applicant, “that the decision places undue responsibility….. for the test centre’s alleged failings, ignoring the principles of fairness”. It also stated in the grounds for AR, “ the refusal to consider the new PSI skills for English Test Report Form [ETRC] is irrational… the rigid refusal to admit and evaluate new relevant evidence undermines the fairness and accuracy of the decision-making process”.
The Law
6. The Immigration Rules (IR) are made pursuant to the power and duty contained in section 3(2) of the Immigration Act 1971, see R (Alvi) v. SSHD [2012] UKSC 33, [2012] 1 WLR 2208.

7. The suitability requirements for a skilled worker are found in the IR in Appendix Skilled Worker. It is route a for employers to recruit people to work in the UK. One of the suitability requirements for a skilled worker is set out at SW.2.1 which reads as follows:
“SW.2.1. the applicant must not fall for refusal under Part 9: grounds for refusal.
8. Part 9 of the IR sets out the grounds for refusal where a person does not meet the suitability requirements. The decision was refused under paragraph 9.7.2 which provides: .
“9.7.2. An application for entry clearance, permission to enter or permission to stay must be refused where the decision maker can prove that it is more likely than not the applicant used deception in the application.”
9. The Appendix Administrative Review of the Immigration Rules contains rules in respect of applications for AR. Paragraph AR2.8 provides:
“AR 2.8. There must not previously have been an application for administrative review in relation to the eligible decision, unless on a previous application for administrative review the eligible decision was maintained for different or additional reasons, in which case an application for administrative review can be made in relation to the maintained decision.”
The Applicant’s submissions
10. Mr Gajjar relied on Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673 and R (on the application of Karagul and others) v Secretary of State for the Home Department [2019] EWHC 3208 to support that there was procedural unfairness by the Respondent by making a decision alleging deception before giving the Applicant a “minded to refuse” opportunity to respond. Mr Gajjar contended that fairness, in this context, may arguably apply to entry clearance decisions. He said that it was a point of interest in R (on the application of Wahid) v Entry Clearance Officer [2021] EWCA Civ 346. In Wahid, the Court of Appeal heard a challenge against an order of Upper Tribunal refusing to grant permission to bring judicial review proceedings against the ECO’s decision where, like the present case, deception/failure to disclosure material facts had been alleged. Mr Gajjar said that while in Wahid the facts were perhaps more serious and difficult for the applicant in that he had failed to disclose an alleged caution for carrying a knife through Heathrow Airport, the Court of Appeal found that the failure to put this to him had arguably breached the requirement of procedural fairness.
11. Mr Gajjar submitted that while in a different context, the High Court has recently confirmed that serious allegations must be disclosed to affected parties before a decision is made. He relied on the decisions of R (on the application of Tazeem) v Secretary of State for the Home Department [2023] EWHC 1828 and R (on the application of Karagul) v Secretary of State for the Home Department [2020] EWHC 3208. In R (Tazeem) the Respondent was granted permission to appeal the subsequent decision of the of the Court of Appeal ([2025] EWCA Civ 347). However, the decision relating to procedural fairness was not challenged).
The Respondent’s submissions
12. Mr Biggs drew the Tribunal’s attention to the Applicant having submitted a further document, the ETRC, which was also found to be false, as is evidenced by the DVR dated 8 July 2024 which is disclosed and filed with acknowledgment of service. This was identified as a further, independent and sufficient, basis for refusing the application pursuant to paragraph 9.7.2 of the IR. The AR decision explained that the original decision had been upheld for the original reason and for additional reasons. The AR said that a revised decision had been made as a result of the additional reason and that this enclosed with the AR. Mr Biggs contended that the Applicant has not addressed this revised decision and the allegation relating to the ETRC in his pleaded case or evidence and he has failed to do so even in his skeleton argument. Mr Biggs said that the ETRC wholly undermines the grounds of review.
13. Mr Biggs contended that Baljigari and the authorities relied on by the Applicant do not apply to entry clearance cases. In any event, the Applicant has still not challenged the revised decision of 7 August 2024 despite being entitled to do so by way of a further application for AR. Nor has the Applicant challenged the finding that the ETRC is false and that he acted dishonestly because he relied upon it in support of the AR. There was, accordingly, no material procedural unfairness because had a ‘minded to refuse’ process been followed, the application would inevitably have been refused on the basis that the Applicant submitted the false ETRC. Further, if there was procedural unfairness relief should nonetheless be refused in the circumstances pursuant to section 31(2A) of the Senior Courts Act 1981 (“the SCA”).
Discussion and conclusions
14. In general following Balajigari where an allegation of dishonestly is relied on procedural fairness demands that the allegation should be put in clear terms to the affected person in advance of the decision. The decision maker should allow the affected person a reasonable opportunity to respond to the allegation in advance of the decision by way of representations and where necessary evidence. The response should then be taken into account by the decision maker when they consider what decision to make. This is described by Mr Justice Saini in Karagal at [102] as a general public law principle.

15. For reasons I shall go onto explain, I reject Mr Biggs’ contention that Balajigari does not apply to entry clearance cases. The requirements of procedural fairness have to be judged in the context of a particular decision (R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531). The consequences that flow from a decision is a factor that can be taken into account when assessing fairness in this context, but whether fairness demands a minded to refuse opportunity is not determined by whether the decision is a refusal of entry clearance or leave to remain/cancellation of leave. While in Wahid the court did not make a substantive decision, I take into account what was said by Carr LJ (set out below).

16. I will deal with procedural fairness in the context of the IELTS. For reasons I shall explain, I find that there is no properly articulated challenge to the respondent’s decision in respect of the ETRC.
17. In Tazeem the claimant was given leave to enter and remain in the UK for a course of study which was conditional on the claimant demonstrating a sufficient command of English. The claimant provided the university with documents certifying that he had passed various tests for proficiency in English. He was interviewed by immigration officers on arrival in the UK. They took the view that his command of English was poor and referred him for further interviews. Following a second interview a decision was taken to cancel his leave on the basis that his English language was not what he had represented it to be and following this the Respondent concluded that the documents provided by the application to certify his proficiency in English were not genuine. The Applicant in judicial review proceedings contended that he had not been provided with a notice of the concern about the authenticity of the documents provided and that the respondent in that case had adopted an unfair procedure. Deputy High Court Judge, Tim Smith, found that the allegation had not clearly been put to the claimant during the interview. He said as follows:
“55. In response Mr Irwin submitted that the facts of Balajigari are very different from the facts in the present case. That much is plain, but it does not follow that the principle enunciated by the court is any less applicable to the facts of the current case. Indeed in R (Karagul) v Secretary of State for the Home Department [2019] EWHC 3208 (Admin), to which Mr Gajjar also referred, Saini J expressed this view about a similar submission made to him in that case (at para 102):
“In my judgment, the Balajigari judgment is an application of well established general principles and is not to be regarded (as the Secretary of State submits) as a decision simply about unfairness in a specific set of circumstances. Based on that decision, and also the decision of Martin Spencer J in R (Shahbaz Khan) v Secretary of State for the Home Department [2018] UKUT 384 (IAC) (which I respectfully record I have found to be of considerable assistance) there is in my judgment a general public law principle in operation in the cases”.
56. Saini J went on at para 103 to summarise this general public law principle by reference to three propositions, of which I emphasise the first:
“I summarise the general principle as follows but with the caveat that its application will of necessity be modified depending on the terms of the statutory regime:
(1) Where a public authority exercising an administrative power to grant or refuse an application proposes to make a decision that the applicant for some right, benefit or status may have been dishonest in their application or has otherwise acted in bad faith (or disreputably) in relation to the application, common law fairness will generally require at least the following safeguards to be observed. Either the applicant is given a chance in a form of interview to address the claimed wrongdoing, or a form of written minded to process, should be followed which allows representations on the specific matter to be made prior to a final decision.”
18. In Karagal the decisions under challenge were made in relation to the rights to apply for LTR under the Agreement establishing an Association between the European Community and Turkey (“the Ankara Agreement). The Respondent refused the claimants’ applications because she was not satisfied that they wished to genuinely establish in business. The decisions were maintained on AR. The court analysed the AR procedure. In the claimants’ circumstances AR did not allow for them to put new evidence before the decision maker.
19. When considering procedural fairness Mr Justice Saini at [72] adopted the reasoning of Holman J in Akturk v SSHD [2017] 4 WLR 62) at [42]:
“42. I have adverted several times above to the possibility of a face-to-face interview with the claimant, reflecting passages which I have quoted from the Secretary of State's own guidance document. When an applicant has a right of appeal to a judicial tribunal at which he can give evidence himself directly to the tribunal, the need for, and proportionality of, an interview at the earlier, administrative decision making stage may be less; but if and in so far as appeal rights have been removed, the need for an administrative interview may have increased. Save where there is powerful documentary evidence of a lack of genuineness, it is a strong thing, and likely to be unfair; for any decision maker to reach adverse conclusions as to integrity, credibility or legitimacy without, at some point in the process, the person concerned having the opportunity to answer questions and explain himself.”
20. Mr Justice Saini concluded at [126]:
“126. The rejection of the applications on this basis was reached without affording the Claimants a fair process at common law in that: (a) the original decision of the Secretary of State was made without giving the Claimants the opportunity to address such a serious allegation; and (b) as was common ground before me, the system of AR expressly prevented the Claimants from submitting any additional evidence to the reviewer in answering this allegation.
127. As to relief, the Secretary of State invited me to consider the issue of materiality. I have considered whether one might contend the above unfairness had no material effect on the outcome of the applications and I have paid particular regard to the helpful summary of the principles at [131]-[136] of Balajigari.
128. It seems to me that two points might be made by the Secretary of State. First, that the applications would have been refused on the merits even if the comments about intention were not made; and second, that a process of interview or “minded to” decision would not have made any difference to the Secretary of State’s conclusion on the substance of the applications.
129. I reject both of these arguments. In my judgment, it is not possible with confidence to say that the Secretary of State’s conclusion as to the true intentions of the applicants would have had no impact upon their rejection on the merits. Equally, I also cannot say with confidence that allowing the Claimants to make submissions (and to submit additional evidence) would have made no difference to the outcome. The errors were material”.
21. In the case of Balajigari the Court of Appeal found, on the facts of the case, that the AR procedure did not satisfy the requirements of procedural fairness. The case concerned challenges to decisions of the respondent to refuse applications pursuant to para 322 (5) of the IR before giving Applicants an opportunity to respond to allegations of deception. The Court said as follows at [58]- [61]:
“58 Ms Anderson also submitted that a minded to procedure was unnecessary in the present context (unlike in naturalisation cases following Ex p Fayed) because under paragraphs 34L—34Y and Appendix AR of the Immigration Rules there is now available a procedure for administrative review following an initial refusal of ILR. We do not accept that the availability of that procedure satisfies the requirements of procedural fairness, for the following reasons.
59 In the first place, although sometimes the duty to act fairly may not require a fair process to be followed before a decision is reached (as was made clear by Lord Mustill in the passage in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 which we have quoted earlier: see para 45), fairness will usually require that to be done where that is feasible for practical and other reasons. In Bank Mellat v HM Treasury (No 2) [2014] AC 700, Lord Neuberger of Abbotsbury PSC (after having cited at para 178 the above passage from Ex p Doody) said, at para 179:
‘In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to accord such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute’.
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, 558, Sachs LJ made reference to the need to avoid the decision-makers 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”.
22. In Wahid the Applicant submitted an application for a visitor visa in order to attend his wife's graduation ceremony in London. He was asked, amongst other things, whether he had ever had in the UK a criminal conviction or a penalty for a driving offence or “a caution, warning, reprimand or other penalty”. In answer, he declared a driving conviction but made no reference to having been cautioned for possessing a dangerous article. His application was refused on the basis that he had made a false representation. Mr Wahid said that he was wholly unaware of any caution in respect of the butterfly knife which was said to be a dangerous article.
23. The respondent in Wahid sought to make a distinction between applications for entry clearance and in-country applications. Mr Biggs, like Mr Malik KC in Wahid, submitted that Balajigari concerned the latter only. At [31] – [34] Carr LJ stated as follows:
“31. In my judgment, the Judge fell into error in the penultimate sentence of paragraph 6 of his decision. He failed to consider the position from the perspective of Mr Wahid's state of mind and, in particular, the question of his honesty. The requirement of procedural fairness depend upon the facts and the context in which a decision is taken, including the nature of the legal and administrative system within which the decision is taken (see R v SSHD, ex parte Doody [1994] AC 531 (at 560 D-G) and Taj (at [50]).
32. I am persuaded, broadly for the reasons identified by Mr Gajjar, that it is arguable that, where an ECO harbours suspicions of dishonesty, procedural fairness requires the applicant to have the opportunity to respond. The Judge was wrong to conclude otherwise. This is an important point which does not appear to have been considered directly in any of the authorities to date.
33. It is right that the circumstances of the appellants in Balajigari were very different to those of Mr Wahid. The very serious consequences of refusal of indefinite leave to remain for the appellants there played an important part in the Court of Appeal's decision that procedural fairness required the opportunity to make informed representations (see [50] to [55] and [81]). Here, Mr Wahid was applying for a short visitor visa to enter the UK for tourism purposes. He could also have made a second application. On the other hand, and as the court in Balajigari also recognised at [51], a finding of dishonesty is a particularly serious matter going to a person's character.
34. It seems to me that these are matters worthy of further debate by reference to full argument and consideration of all the relevant authorities and underlying principles in play”.
24. While none of the authorities, save Wahid, concerns an entry clearance case, they do not make a distinction between cases of entry clearance and LTR or the cancellation of leave which would support Mr Biggs’ contention that Balajigari does not apply to entry clearance cases. Mr Justice Saini at [55] of Karagal (see above) said that the judgement in Balajigari is an application of a well-established general principles and not specific to the facts in that case. It is clear from the case law that what fairness demands is dependent on the context of the decision. What is required to ensure procedural fairness is fact specific. Deputy High Court Judge Tim Smith accepted at [80] that neither Balajigari nor Doody “gave rise to an immutable principle that a minded to decision must be given in every case”.
25. In this case, I find that fairness does not demand that the Applicant should have been given a minded to refuse opportunity before the respondent made her decision of 8 December 2023 which was maintained on AR. I have taken into account that the Court of Appeal was critical of the AR procedure in Karagal and Balajigari. A significant reason given by the court in both cases was that the procedure did not afford the applicant with an opportunity to rely on further evidence to be considered on AR (see Karagal [126] and [129] and Balajigari [61]). The main reason for this was that the procedure did not allow the applicants in those cases to submit further evidence in support. This was a fundamental reason for the court in Balajigari finding that the AR procedure did not satisfy the requirements of procedural fairness (see [61]). The AR procedure in the Applicant’s case afforded him the opportunity to submit further evidence, which he did. Mr Wahid did not have the right to appeal or a right to an AR. While in Balajigari there were others reasons given to explain why an AR did not satisfy procedural fairness, namely; 1) a minded to opportunity is conducive to better decision making: 2) the court warned against defensive decision and “unduly fixed” mindsets and 3) a minded to opportunity shows respect to the applicant. The opportunity for an applicant to submit further documents goes some way to address these three further concerns. In both Wahid and Tazeem there was not opportunity to ask for AR.
26. While the Court of Appeal attached significance to the seriousness of an allegation of dishonesty to an Applicant’s good character, there is nevertheless a distinction between applications for entry clearance and LTR or cancellation of leave in so far as the consequences of the latter are of more significance and seriousness because an individual’s status will change as a result of the decision. The court in Balajigari took into account that the consequences of a refusal of ILR where extant LTR will expire upon refusal can be very serious. At [81] the court referred to the hostile environment and the change in an Applicant’s status. Neither of these is relevant to this Applicant. I appreciate that the consequences of a ten-year ban are serious, as is an allegation of dishonestly, but they are relatively less serious to that of someone with extant leave.
27. In the case of Tazeem, there was no direct evidence of false documents or an opportunity for an AR. The court found that the respondent in that case had not given the claimant notice of the allegations, taking into account their own guidance which supported that the applicant be given a minded to opportunity. I have not been shown any guidance in the Applicant’s case by either party. The respondent in Tazeem drew an inference that the documents were not genuine from an interview with the applicant. There are a number of potential reasons which could have explained the applicant’s poor command of English during the interview. The cases relied on by the parties are concerned with people having given dishonest information with a view to obtaining leave (or entry clearance in the case of Wahid). They are not concerned with false documents supported by a DVR. The evidence of dishonestly was more tenuous in those cases than in the Applicant’s case. There is in this case “powerful documentary evidence of a lack of genuineness,” (see [42] of Akturk v SSHD). The Applicant has not challenged the DVR. In his AR grounds he said that he was unaware that the IELTS was not genuine. He said that he had entrusted an agent and that his intent had always been to approach the visa application process with integrity. There has unarguably been deception in this case. The issue is narrow. It is whether the Applicant was aware that the document that he submitted in support of his application to establish that he successfully sat and English Language test was not genuine. The case of Agha v SSHD [2017] UKUT 121 relied on by the Applicant is not on point. The document in that case allowed for an explanation of inaccuracy rather than dishonesty in its creation. There is no suggestion in this case that the IELTS is simply inaccurate and that there has been no dishonestly in its creation. This is not what the Applicant says in the grounds for AR.
28. Mr Gajjar cautioned against speculating about what the Applicant would say had he been given the opportunity. I have taken into consideration what is said at [82] of Tazeem. In this case I find that the Applicant has been given an opportunity to engage with the allegation. The AR procedure in this case ensured procedural fairness. There is nothing to support that he would have said anything else about his intentions or submitted any more documents. There is no procedural unfairness arising from the Respondent in this case not giving the Applicant a minded to refuse opportunity before the decision was made.
29. The original decision and the AR of 7 August 2024 have now been superseded by the revised decision against which there is no challenge. I accept Mr Biggs’ contention that the Applicant has not addressed the revised decision or the allegation of deception relating to the ETRC. Mr Biggs contends that the false ETRC wholly undermines the grounds of review. He said that in the absence of a challenge to the revised decision and the Applicant having not proffered any explanation for the alleged false ETRC, it follows that he does not have an explanation. Mr Gajjar submitted that the pleadings are adequate to address the challenge to the revised decision. He said that a challenge under para 9.7.2 must be a challenge to both assertions of dishonesty.
30. In section 5 of the application for judicial review the Applicant was asked what decision made by the Respondent are you asking the Tribunal to review and he gave the following answer, “Original refusal and subsequent admin review decision to maintain”. The date of the impugned decisions are given as 7 August 2023 and 7 August 2024. The grounds of review challenge two decisions; one of 7 August 2023 and the decision of 7 August 2024 , “refusing [the Applicant’s] for leave to remain as a skilled worker on the allegation his IELTS and English Language test results were not genuine”. The Applicant’s chronology lists the application having been refused on 7 August 2023 and maintained on AR on 7 August 2024. Under the heading “Issues” the grounds of review refer to whether the decision to refuse without notice was procedurally unfair. The revised decision and the allegation of dishonesty relating to the ETRC is not mentioned in the pleadings..
31. I remind myself of R (Talpada) v SSHD [2018] ECWA CIV 841 in which at [67]-[69] which was recently endorse by Andrews LJ in Bibi. In Talpada Singh LJ said: .
“[67] …both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation.
[68] In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of "evolving" during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.
[69] These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.”
32. I find that the challenge in these proceedings to an original decision but the Applicant has failed to identify this decision. It has not been produced. The Applicant also challenges the AR decision of 7 August 2024 maintaining the original decision in respect of the IELTS. I accept that the Applicant has said that he challenges the decisions of 7 August 2023 and 7 August 2024. By that I accept that on the face of it, taking into account the error relating to the date of the revised decision, this would appear to be a challenge to the AR and the revised decision. However, there is no properly articulated ground relating to the revised decision. In the proceedings the Applicant refers to the “original decision” . There is no engagement with the second allegation of deception raised in the AR or the revised decision. I can only infer that the representatives have assumed that the decision of 7 August which is misdated 2023 is the original decision. However, it is very clear from the AR and the revised decision that this is not the case. I accept the confusion in dates has been perpetrated by the Respondent, but the error is abundantly clear on reading the decisions. The second ground which was not pursued by the Applicant discloses a misreading or misunderstanding of the AR decision in so far as it relates to the ETRC. It says that it was irrational for the Respondent not to have considered the document. This clearly does not reflect what is said in the AR or the revised decision. While Mr Gajjar did not pursue this ground, it discloses that the solicitors have misunderstood the nature and sequence of the decisions.
33. The permission decision mischaracterises the decisions by the pleadings. The judge was obviously misled about the chronology and nature of the decisions. The judge granted permission to judicially review the Respondent’s decision dated 7 August 2023 confirmed on Administrative Review on 7 August 2024. This supports that she believed the decision of 7 August 2023, which should be date 7 August 2024 (the revised decision) was the original decision because this is consistent with the pleadings.
34. Without an amendment to the grounds, following a proper paid application, the Applicant cannot stray beyond them. He is not able in these proceedings to challenge on procedural fairness grounds that he has not been given a minded to refuse opportunity in respect of the ETRC. He is not able to challenge the revised decision.
35. In answer to the original decision the Applicant provided the ETRC. That certificate was found by the Respondent to be false and a revised decision was issued which is not the subject of challenge in these proceedings. The Applicant has never engaged with this allegation of deception and has not challenged the revised decision. It . follows that if there was procedural unfairness made out in the grounds relating to the IELTS, the outcome would not have been substantially different if the complained conduct had not occurred and relief should be refused pursuant to section 31 (2A) of the Senior Courts Act 1981.
36. Judicial review is refused.
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