JR-2025-LON-000544
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The decision
Case No: JR-2025-LON-000544
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
4 December 2025
Before:
UPPER TRIBUNAL JUDGE BLUNDELL
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Between:
THE KING
on the application of
GURJIT KAUR
Applicant
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THE ENTRY CLEARANCE OFFICER
(NEW DELHI)
Respondent
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Shahadoth Karim
(instructed by Liberty Legal Solicitors), for the applicant
Joshua Yetman
(instructed by the Government Legal Department) for the respondent
Hearing date: 28 October 2025
Date draft judgment sent to the parties: 28 November 2025
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J U D G M E N T
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TABLE OF CONTENTS
Background
The Decisions Under Challenge
Grounds for Judicial Review
Submissions
Legal Framework
Authorities on Procedural Fairness
The Respondent’s Policy
Analysis – Ground One - Procedural Fairness
Analysis – Ground Two - Rationality
Conclusion
JUDGE BLUNDELL:
1. This judgment concerns the duty of an Entry Clearance Officer to act fairly and in particular the extent of that obligation when an allegation of deception is made against an entry clearance applicant who would face the mandatory refusal of future applications as a result of a finding of deception.
Background
2. The applicant is an Indian national who was born on 3 June 1972. She was granted a visit visa in 2023. She travelled to the United Kingdom and returned in accordance with the terms of her visa.
3. For reasons which will shortly become clear, it is necessary to set out the later aspects of the chronology in some detail.
4. In October 2024, the applicant made another visit visa application, Visa Application Form (“VAF”) number 1739638. Amongst the documents submitted with the application was a bank statement from the HDFC Bank for a bank account in the applicant’s name, the account number for which ended 6077.
5. That application was refused on 1 November 2024 because the respondent concluded that the applicant had submitted a false document. The Entry Clearance Officer gave the following reasons for that conclusion [p111]:
You have stated that you are employed with a monthly income of 25,000 INR (£229.85). You have declared that you have no other sources of income, and that you have savings of £9,000.
In support of your application, you have presented a bank statement purportedly issued by HDFC Bank with an account number ending 6077, which is in your name and is dated 14 October 2024.
Checks conducted with HDFC Bank have confirmed that this document is not genuine.
These official enquiries have been documented in a document verification report (DVR) held by our office. I am satisfied that you have made false representations and submitted a false document in support of your application. Your application is therefore refused under Part 9.7.1 (a) of the Immigration Rules.
I am satisfied that you have submitted a false document and that you did so with an intention to deceive. I am satisfied of your intention to deceive because the bank statement in question is in your name and directly relates to your own financial circumstances, and in turn the funding of your proposed visit to the UK.
I am not satisfied, on balance, that you would not have been aware that the content of this document was not accurate given that it directly refers to your own personal funds. I am not satisfied that any individual with genuine travel intentions would have in their possession a bank statement verified as being non-genuine, nor am I satisfied that any individual with genuine travel intentions would submit such a document in support of their visa application.
I have also considered how this bank statement would benefit your application for a UK visit visa, and I note that you state on your visa application form that you will spend £1,000 personally on your proposed visit to the UK with your spouse contributing £1,000 towards the costs. I am therefore satisfied that your submission of this bank statement seeks to demonstrate that you have adequate funds for your contribution to the cost of the proposed visit. I am also satisfied that your submission of this documentation seeks to demonstrate your financial stability and show that you have economic ties to your country of residence, and in turn to demonstrate intent to return to your country of residence after visiting the UK.
I am satisfied that you have done this to improve the likelihood of your visa application being granted. This therefore leads me to conclude that you have knowingly provided false documentation with an intention to deceive. I have therefore found that, on balance, you have used deception in your application and your application is therefore refused under paragraph 9.7.2 of Part 9 of the Immigration Rules.
6. As the respondent then noted, the nature of that refusal triggered a requirement that subsequent applications would be refused for a period of ten years from the date of the application for entry clearance.
7. The applicant’s solicitors sent a letter before action on 26 November 2024. They raised four grounds of challenge to the decision. Firstly, that the decision was procedurally unfair because the respondent had not given the applicant notice of her concerns or an opportunity to address those concerns. Secondly, that the respondent had failed to exercise her discretion in light of all the facts, including the fact that the application had been prepared by a “local consultant” in India. Thirdly, that the respondent had reached an irrational conclusion. Fourthly, that the ECO had failed to take account of the fact that the sponsor (the applicant’s son in the UK) had adequate funds for the visit.
8. On 10 December 2024, the respondent agreed to reconsider the decision under challenge within three months. Before that reconsideration had taken place, however, two things happened.
9. Firstly, on 13 December 2024, and pursuant to advice received from her solicitors, the applicant made a “Refund request” via the respondent’s website. This prompted an online notification in these terms:
Refund request sent
We have received your request for a refund.
If your request for a refund is successful, your visa application will be cancelled and your money will be returned in the next 28 days. Your refund will be made to the same account you used when you paid for your application.
10. Secondly, on 23 December 2024, the applicant made another application for a visit visa, VAF number 1810946. That application was made with the assistance of her current solicitors. Various documents were submitted in support of the application. The HDFC bank statement was not submitted. A bank statement relating to the applicant’s joint account with her husband at the State Bank of India was submitted. There was also a covering letter from the applicant’s solicitors which stated, amongst other things, that the applicant had “cancelled her first application” and that the respondent was requested “not to reconsider the cancelled application anymore as discrepancies have arisen”. The later application was described by her solicitors as a “simplified application”.
The Decisions Under Challenge
11. On 20 January 2025, both applications were refused. The reconsidered decision (VAF 1739638) was materially as follows:
You state that you have been employed by RS Boutique and Dress Designer as a “tailoring and dress designer” since May 2016 and earn 25,000INR monthly. In support of your application you have submitted a bank statement, with an account number ending in 6077. Checks within the issuing authority have confirmed that this document is non-genuine. These official enquiries have been documented in a document verification report (DVR) held by our office. I am satisfied that you have made false representations and submitted a false document in support of your application.
I note that in your letter before claim it is stated that you used an agent to help submit your application and that they submitted this document on your behalf without your knowledge. However, I further note that nowhere on your visa application form (VAF) does it mention that a third party has helped you submit your application, nor does the VAF make any mention of an agent helping you to complete your application. Additionally, you have provided a document titled “statement of purpose” with your application, which details the reasons for your application, your visit, travel history amongst other points. This document shows your name at the bottom of it, suggesting that it, and by extension the rest of your application, was submitted and completed by you.
In addition to this, by submitting your application form you agreed to the following declaration points: “That you confirm that to the best of your knowledge and belief the following is correct: - The information relating to your application- The supporting evidence - I understand that if false information is given, the application can be refused and I may be prosecuted, and, if I am the applicant, I may be banned from the UK. - I am the applicant aged 18 or over”
I am therefore not satisfied that your application demonstrates, or makes clear, that it was not submitted and completed by you.
Based upon the above-mentioned information, I am satisfied that you have submitted a false document and that you did so with an intention to deceive. I am satisfied of your intention to deceive because the bank statement in question is in your name and directly relates to your own financial circumstances, and in turn the funding of your proposed visit to the UK. I am not satisfied, on balance, that you would not have been aware that the content of this document was not accurate given that it directly refers to your own personal funds.
I have also considered how this bank statement would benefit your application for a UK visit visa, and I note that you say on your visa application form that you will spend £1,000 on your proposed visit to the UK, with your son also contributing £1,000. I am therefore satisfied that your submission of this bank statement seeks to demonstrate that you have adequate funds for the proposed visit. All of these factors lead me to conclude that you have knowingly provided a false document with an intention to deceive. I have therefore found that, on balance, you have used deception in your application and your application is therefore refused under paragraph 9.7.2 of Part 9 of the Immigration Rules.
12. The refusal in VAF 1810946 was rather shorter and I need not reproduce it in full. The respondent noted that the applicant had submitted a false bank statement in her previous application. She had considered the applicant’s explanation for doing so but she remained satisfied that deception had been used previously “because the document was in your name and relates to your financial circumstances.” The application was therefore refused “Part 9.8 of the Immigration Rules.”
13. On 31 January, the applicant’s solicitors issued a letter before action in which they made it clear that both decisions dated 20 January were under challenge. There were four grounds, which were identical to those which were advanced in the earlier pre-action letter. The applicant’s solicitors also noted, however, that the applicant had “cancelled” her first application for entry clearance on 13 December 2024, and that the respondent had therefore been in error in making another decision on VAF 1739638. They also stated that the respondent had a “preset mind” to refuse VAF 1810946.
14. On 14 February, the respondent responded to the letter before action, maintaining her stance. The respondent noted that it had remained open to her to decide VAF 1739638 even if the applicant had sought to withdraw that application. In response to the grounds, the respondent did not accept that they established public law errors in the decisions under challenge. She did not accept in response to ground one that she was under any obligation to give the applicant an opportunity to respond to her suspicions about the HDFC bank statement. She considered in response to ground two that the applicant was responsible for the submission of that document and that it had been submitted with the intention to deceive. Her explanation that a third party was involved was not accepted and refusal was appropriate. The respondent considered that the refusal was rational in all the circumstances (ground three) and that consideration of the sponsor’s bank statement was irrelevant to the grounds of refusal in both applications (ground four).
The Application for Judicial Review
15. This application for judicial review was lodged on 21 February. The grounds were settled by Mr Karim. There were three grounds, which were as follows.
16. Firstly, it was submitted that the respondent’s decision-making process was procedurally unfair because no “minded to” process had been followed and because the Document Verification Report (“DVR”) had not been provided to the applicant.
17. Secondly, it was submitted that the decisions were irrational and had failed to engage with evidence and information submitted. The respondent had failed to apply the proper staged approach; had failed to take account of the attempted withdrawal of the first application; and had failed to take account of the possibility that the applicant was not responsible for the forged statement. The ten year ban was irrational in the circumstances.
18. The third ground was that the respondent had failed “to adequately consider and apply discretion”.
19. Permission was refused on the papers by Judge Owens but granted on renewal by Judge Hoffman. Judge Hoffman was persuaded by a narrow margin that the first and second grounds were arguable. He was not persuaded that the third ground was arguable, and he refused permission on that ground.
Application to Rely on Additional Evidence
20. Judge Hoffman issued standard directions when he granted permission. The respondent was to file and serve detailed grounds of defence within 35 days of his order. The applicant was then to file and serve any reply and any application to rely on further evidence within 14 days of the service of the detailed grounds.
21. The respondent sought and was granted a short extension to file detailed grounds of defence. She filed detailed grounds of defence just before 5pm on 18 August. The applicant was therefore to file any reply and additional evidence by 1 September. No reply or application to rely on additional evidence was filed on or before that date.
22. The applicant filed the hearing bundle on 7 October. Mr Karim’s skeleton argument was filed on the same date. On 10 October 2025, the applicant applied for permission to file additional evidence in support of her application for judicial review. The evidence is an undated letter from a firm called Bawa Immigration in Garshankar, India. It states, in summary, that the firm assisted the applicant with her application for entry clearance and that the submission of the forged bank statement was done without the applicant’s knowledge by a member of staff who had subsequently been dismissed.
23. No decision was made on the application in advance of the hearing. Mr Karim addressed me on the application at the start of the hearing. He made reference to the three stage test in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906; [2014] 1 WLR 3926. He accepted that the application was more than a month late and that this was a significant default. He submitted that there was a good explanation for the delay, which was that the applicant had only recently received the letter from Bawa Immigration. He submitted that it was relevant to the arguments before me for three reasons. Firstly, because it showed what the applicant could have produced if a fair process had been followed. Secondly, because it illustrated the lack of merit in the respondent’s submission that any errors were immaterial. Thirdly, because it established a mistake of fact in the respondent’s decisions. Taking account of all the circumstances, including the fact that this was merely a single page letter, Mr Karim invited me to grant the application.
24. Mr Yetman opposed the application, submitting that there was no satisfactory explanation for the lateness, that the evidence was irrelevant to the pleaded case, and that it was in any event incredible.
25. I refused the application, indicating that I would give full reasons in my judgment. The reasons are as follows.
26. Firstly, the default is significant and there is no adequate explanation for it. The applicant states that the letter has only recently been provided to her but the letter is undated and there is no evidence to suggest when she asked for it. Mr Karim sought to present the situation as one in which the applicant had been seeking the letter for some time but there is no evidence to support that contention. It was suggested as long ago as the first letter before action (26 November 2024) that the applicant had initiated legal proceedings against an unnamed legal consultant in India but no evidence of any such proceedings has ever been produced.
27. Secondly, I accept Mr Yetman’s submission that the evidence does not bear upon the public law errors asserted in the grounds for judicial review. Mr Karim submitted orally that the letter went to show that the respondent had made a material mistake of fact but no such error is pleaded clearly in the grounds.
28. Thirdly, and in any event, the fact or evidence is not uncontentious and objectively verifiable, as required by the second of the four principles set out at [66] of E & R v SSHD [2004] EWCA Civ 49; [2004] QB 1044. The respondent does not accept, for good and proper reason, that a legal professional would forge a bank statement and submit it with an application for entry clearance without the knowledge of their client.
Submissions
29. In his skeleton argument and his oral submissions Mr Karim argued, in summary, as follows. In the interests of brevity, I have shorn the submissions of reference to authority but I will obviously consider the authorities in my analysis.
(a) Procedural fairness generally demanded that a person who would be significantly detrimentally affected by a decision should be given an opportunity to make representations in advance. The Secretary of State was wrong to submit that it did not apply in entry clearance cases or in this case; a ten year ban was a serious detriment.
(b) The respondent had erred in failing to give the applicant an opportunity to address her concerns. The applicant had unequivocally withdrawn the first application in writing and had sought to pursue only the second. If the respondent was to decide both applications in reliance on the forged bank statement, the applicant should have been provided with the evidence and given a chance to respond.
(c) Aspects of the respondent’s published guidance Suitability: false representations, deception, false documents, non-disclosure of relevant facts (version 4.0 14 November 2023) provided cogent support for the applicant’s argument as to procedural fairness. The guidance was inconsistent and in any event wrong to suggest that entry clearance cases would usually fall outwith the protection of procedural fairness.
(d) It would be wrong to speculate about the outcome of a “minded-to” process. Paragraph 9.7.2 of the Immigration Rules required knowing deception from the applicant, not a third party. Had the applicant been asked for an explanation, she could have provided one which addressed the respondent’s concerns.
(e) The respondent had failed to undertake the staged enquiry mandated by the authorities when assessing whether the applicant had sought to deceive. The reasons provided for the conclusion were also deficient.
(f) The respondent had failed, in particular, to engage with the matters which militated against a finding of deception. The applicant had previously complied with UK immigration control. There was no reason for her to mislead. There was also an absence of reasoning as to the respondent’s decision to consider the first application despite its withdrawal. The respondent had also failed to engage with the fact that there were significant sums available to the applicant in the sponsor’s account.
(g) The respondent was wrong in her skeleton argument to submit that the applicant was attempting to introduce additional grounds of challenge. Each ground had been properly identified and the skeleton argument merely fleshed out what had been said all along.
(h) The respondent was wrong to submit that the errors were immaterial to the outcome. If the respondent was to submit that the outcome would have been substantially the same without the errors, there was no evidence in support of that argument.
30. In his Detailed Grounds of Defence, skeleton argument and oral submissions, Mr Yetman submitted that the respondent’s decisions were not vitiated by public law error or, in the alternative, that any such error was immaterial. He helpfully separated his submissions into five strands which were, in summary, as follows. Again, I have removed any reference to authority in the interests of brevity.
(a) Mr Karim was mistaken as to the scope of the pleaded case. In particular, he was wrong to submit that the grounds encompassed a reasons challenge. Whilst there was reference in the grounds to there being “numerous concerns with the decisions”, there was no clear articulation of a challenge to the adequacy of the respondent’s reasons there, or in the order granting permission.
(b) It was imperative to consider the facts and the timeline in detail. There was nothing contemporaneous to suggest that a third party had been involved in the first application and the checks conducted by HDFC provided direct and compelling evidence of falsification. The first mention of a third party was in the November 2024 letter before action. It was accepted that the applicant had given notice of withdrawal of the first application thereafter, but there had been no acceptance of the withdrawal, and the respondent was entitled to consider the application. The decision which was then made on the first application was procedurally fair. It considered and rationally rejected the assertion that a third party was involved.
(c) The applicant was wrong to submit that there was an obligation to follow a “minded-to” process in entry clearance cases. There was no binding authority to support that submission, and the cases in which such a duty were found to arise were distinguishable. Even if such a duty were found to exist, it had been complied with on the facts of this case; the applicant had been given notice of the allegation when the application was first refused and what she had said thereafter had been taken into account. It could not be correct as a matter of public policy that a person faced with an allegation of dishonesty could withdraw their application and avoid the consequences of their actions.
(d) Nothing more was required of the respondent in considering the question of deception. The authorities did not mandate a boilerplate approach to such matters. The respondent had not been required to provide a Document Verification Report on the facts of this case. In substance, the applicant had been given notice of the allegation and an opportunity to provide an innocent explanation. That had been considered and rationally rejected by the respondent. Even if a reasons challenge was in scope, the reasons given were adequate and intelligible.
(e) Any error was in any event immaterial to the outcome of the applications. Section 31(2A) of the Senior Courts Act 1981 applied. All that the applicant said was that a third party was to blame for the false document in the first application and that was insufficient on any proper view to address the problem.
31. Mr Karim responded briefly. He submitted that the respondent’s attempt to “pigeon hole” the duty to act fairly was contrary to principle and should fail. The respondent’s forensic analysis of the facts of the reported cases was unhelpful. The ECO’s first decision had been withdrawn, and could not stand as notice of the allegation. The applicant was entitled to proceed on the basis that the allegation was not to be pursued until she was given proper notice of it. The analysis undertaken by the respondent was clearly inadequate – relevant matters had been left out of account and a holistic analysis had not been undertaken.
32. I permitted Mr Yetman to make one observation about Mr Karim’s final submissions. He submitted that the applicant had not sought or been granted permission to argue that the respondent’s guidance was unlawful; the grounds contended only that the application of the guidance was unlawful in this case.
33. I reserved my judgment at the end of the submissions. I am grateful to counsel for the clarity and economy of their submissions.
Legal Framework
34. There is no need to make reference to primary legislation. The relevant legal framework in this case is provided by the Immigration Rules, and by Part 9 in particular.
35. The refusal of application 1739638 was solely under paragraph 9.7.2, but it might assist to set out the preceding paragraph in addition. Currently, and at all material times in this case, those paragraphs have been in the following terms:
9.7.1. An application for entry clearance, permission to enter or permission to stay may be refused where, in relation to the application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application:
(a) false representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant’s knowledge); or
(b) relevant facts are not disclosed.
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.
36. The refusal of application 1810946 was said to be under paragraph 9.8 but there is no such provision now or at any material time. Counsel agreed that the refusal must have been under paragraph 9.8.1, which provides as follows:
9.8.1. An application for entry clearance or permission to enter must be refused if:
(a) the applicant has previously breached immigration laws; and
(b) the application is for entry clearance or permission to enter and it was made within the relevant time period in paragraph 9.8.7.
37. I need not reproduce paragraph 9.8.7. It contains a table with six rows. The final row states that the relevant time period is ten years where the person used deception in an application.
Procedural Fairness Authorities
38. In Ridge v Baldwin [1964] AC 40, the House of Lords held that natural justice required that a Chief Constable be given notice of the charges against him and an opportunity to be heard before he was dismissed on grounds of misconduct. In Lloyd v McMahon [1987] AC 625, the House of Lords held that a district auditor had not acted unfairly when issuing a certificate of wilful misconduct against certain Liverpool City councillors because they had been able to make written representations on the allegations against them. In doing so, Lord Bridge observed that that the rules of natural justice are not “engraved on tablets of stone”.
39. Lord Mustill explained in R v SSHD, ex parte Doody & Ors [1994] 1 AC 531, at 560 what “fairness demands is dependent on the context of the decision”. Of relevance in the present context, Lord Mustill also said that:
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.
40. As observed at 9-004 of the ninth edition of De Smith’s Judicial Review various attempts have been made over the years to devise categories or criteria of relative precision to determine the bounds of procedural fairness. In McInnes v Onslow Fane [1978] 1 WLR 1520 Ch, which concerned a refusal to grant a boxer’s manager’s licence, Sir Robert Megarry VC suggested that there should be a distinction between “forfeiture” cases (in which a vested interest had been withdrawn); “application” cases (in which an interest was merely being sought); and “expectation” cases in which there was a reasonable expectation that an existing entitlement would be continued. Since the case fell into the second of those categories, and did not involve any imputation of dishonesty, the British Board of Boxing Control had not been obliged to give the plaintiff even the gist of their reasons for refusing to grant his application for a licence.
41. In R v SSHD ex parte Fayed [1998] 1 WLR 763, however, it was held by the majority (Lord Woolf MR and Phillips LJ) that the Fayed brothers had been entitled to notice of the Secretary of State’s concerns and an opportunity to make representations thereon before their applications for naturalisation were refused on grounds of character. McInnes v Onslow Fane was not cited before the Court of Appeal but the majority was not concerned with the fact that the applicants had no right to British citizenship, nor any expectation of that status. Instead, the principal consideration which drove Lord Woolf MR and Phillips LJ to conclude that they had been entitled to notice of the case against them was the damage to their reputations and the fact that they would be deprived the benefit of citizenship: p773D-F and p787G. Phillips LJ noted in the latter part of his judgment that the refusal of nationality carried with it “the natural implication, both in this country and abroad [that the plaintiffs had] attributes of background, character or conduct that are disreputable”. That implication gave the applicants “stronger grounds for urging a duty of disclosure than existed in R v Gaming Board for Great Britain ex parte Benaim & Khaida [1970] 2 QB 417.”
42. In Bank Mellat v HM Treasury [2013] UKSC 39; [2014] 1 AC 700, the Supreme Court considered, amongst other issues, whether HM Treasury had acted in breach of the duty to act fairly in failing to give Bank Mellat an opportunity to make representations before it made an order which prohibited all persons operating in the financial sector in the UK from entering into or continuing to participate in any transaction or business relationship with the bank. The majority held that the Treasury had been obliged to provide such an opportunity and that it had erred procedurally in failing to do so. Lord Sumption said at [29] that “the duty to give advance notice and an opportunity to be heard to a person against whom a draconian statutory power is to be exercised is one of the oldest principles of what would now be called public law.” At [179], Lord Neuberger summarised the relevant principle in this way:
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 afford such an opportunity.
43. In R (Pathan) v SSHD [2020] UKSC 41; [2020] 1 WLR 4506, the Supreme Court held that there was a duty to inform a migrant worker that their sponsor’s licence had been revoked. In that context, Lord Ker and Lady Black stated that “the duty to give notice is an accepted element of the duty to act fairly”.
44. In Balajigari & Ors v SSHD [2019] EWCA Civ 673; [2019] 1 WLR 4647, the Court of Appeal considered, amongst other issues, what the principles of procedural fairness required in an earnings discrepancy case (that is, a case in which the income claimed by an applicant in a previous application for leave to remain did not match the income provided to His Majesty’s Revenue and Customs over the same period.) Each of the four cases considered by the Court of Appeal concerned the refusal of Indefinite Leave to Remain (“ILR”); none concerned the refusal of entry clearance.
45. The court considered the requirements of procedural fairness at [45]-[61]. It considered Singh LJ’s comprehensive review of the leading authorities in R (Citizens UK) v SSHD [2018] EWCA Civ 1812; [2018] 4 WLR 123 and focused particularly on what he had said about R v SSHD, ex parte Fayed. Having done so, the court articulated this conclusion, at [55]:
For all of those reasons, we have come to the conclusion that where the Secretary of State is minded to refuse ILR on the basis of paragraph 322 (5) on the basis of the applicant's dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards "undesirability" and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct.
46. I also note that the scope of the Secretary of State’s duty to act fairly was recently considered in R (Prestwick Care Ltd) & Ors v SSHD [2025] EWCA Civ 184; [2025] Imm AR 604. That case concerned the revocation of Tier 2 sponsorship licences. The principal issue was whether the Secretary of State was under an obligation in such a case to consider the impact of revocation on the sponsor, its employees, service users and the wider community. The Court of Appeal concluded that she was not. In one the two linked cases, however, the Secretary of State’s decision was nevertheless quashed because she had failed to give adequate notice of her concerns and an opportunity to address the same and had failed to explain her conclusions in adequate detail: [137]-[138].
47. Baker LJ gave the only full judgment, with which Singh and Jeremy Baker LJJ agreed. Baker LJ reviewed the authorities on the duty to act fairly at [28]-[32], noting at [30] (immediately after citing Lord Neuberger’s dictum from Bank Mellat) that “[t]hese principles apply in immigration cases”. At [132]-[136], Baker LJ stated that an allegation of dishonesty in that context imposed four particular requirements on the investigators. The third and fourth of those requirements are not relevant here but the first two are:
[133] First, as this Court stated in Balajigari, dishonesty "is a serious allegation carrying with it serious consequences". It is for the SSHD to establish, on a balance of probabilities, that the sponsor acted dishonestly. There is no burden on the sponsor to prove that it did not.
[134] Secondly, where the SSHD has a suspicion that a sponsor has acted dishonestly, she must indicate clearly to the sponsor that she has that suspicion so that the sponsor has a fair opportunity to respond.
48. In Wahid v ECO [2021] EWCA Civ 346, Carr LJ (as she then was) considered that it was arguable that the applicant was correct to submit that “where an ECO harbours suspicions of dishonesty, procedural fairness requires the applicant to have the opportunity to respond.” She noted in the same point that this was an important point which did not appear to have been considered directly in any of the authorities to date. Henderson and David Richards LJJ agreed.
49. I expressed some concern to Mr Karim that his citation of Wahid v ECO was impermissible under the terms of the Practice Direction on the Citation of Authorities [2001] 1 WLR 1001. Whilst it was decided by a full bench of Court of Appeal judges, it concerned an application for permission to appeal and it was by its terms a decision that only decided that the application was arguable. Paragraph 6.1 of the Practice Direction therefore prohibits citation of that decision before any court “unless it clearly indicates that it purports to establish a new principle or to extend the present law”, which Wahid v ECO does not. Mr Karim was content, I think, to accept that Wahid v ECO should not be cited for that reason but submitted that he was able to rely on other authority to make good his argument that the duty to act fairly by giving notice applied in this context.
50. Mr Karim relied in particular on R (Karagul & Ors) v SSHD [2019] EWHC 3208 (Admin). In those linked cases, Saini J quashed - for want of compliance with the duty to act fairly - refusals of leave to remain as businesspersons. The second issue the court considered was whether the way in which the decisions were reached was in breach of the standards of common law fairness. The refusals in the linked cases were not premised on a conclusion of dishonesty per se but the respondent expressed herself to be concerned as to the genuineness of the applicants’ intentions in various respects, as set out at [10]-[11], [17], [22] and [28].
51. Saini J considered the legal principles on procedural fairness at [95]-[103]. I need not, with respect, set out all of that analysis. It suffices to note that Saini J said at [102] that “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.” At [103], he summarised the general principle, whilst emphasising a caveat that its application would need to 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.
(2) Further, a process of internal administrative review of an original negative decision which bars the applicant from submitting new evidence to rebut the finding of wrongdoing is highly likely to be unfair.
(3) The 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.
52. At [107], Saini J agreed with something said by Holman J in R (Akturk) v SSHD [2017] EWHC 297 (Admin); [2017] 4 WLR 62 that it was “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”. At [112]-[120], Saini J explained why the respondent had failed to act fairly in the individual cases under consideration, noting at [119] that the applicants
… have been found to have effectively been dishonest and then face an appeal process to be conducted without any chance to rebut that allegation that they did not have the relevant genuine intention with new evidence.
53. The second decision of the Administrative Court to which Mr Karim particularly referred was the decision of Tim Smith, sitting as a Deputy High Court Judge, in R (Tazeem) v SSHD [2023] EWHC 1828 (Admin); [2024] 1 WLR 1135. That case concerned a refusal of leave to enter to a Pakistani student on the basis that he had falsely represented himself to the Entry Clearance Officer as a person who had the necessary proficiency in English to complete a degree course in the UK.
54. The Deputy Judge considered Balajigari and Karagul at [53]-[55]. Whilst he accepted that the facts of the former case were very different from those before him, he held that “it does not follow that the principle enunciated by the Court is any less applicable”. At [69], the Deputy Judge explained why he considered the process which had been followed at the border to have been unfair:
It seems to me that where something as important as a decision to cancel leave to enter is being contemplated on the assumption of falsified documentation, procedural fairness requires that a very clear allegation to that effect is put. It is not enough for a passenger to be left to infer that this is the case. The fact that such inference is expected to be discerned second-hand through an interpreter exacerbates the difficulties experienced by a passenger, let alone in circumstances where it is evident that public officials are intervening potentially to rescind permission to enter.
55. At [80], having considered the various guidance documents which had been published by the Secretary of State, the judge accepted that neither Balajigari nor Doody gave rise to an immutable principle that a “minded to” decision was to be given in every case. He concluded, however, that such an approach was necessary on the facts of that case “in order to meet the basic elements of a fair procedure.” The claimant’s first ground therefore succeeded. The other grounds, including one that the claimant had been unlawfully detained, failed. I need not detail the reasons.
56. It transpired at the hearing before me that Tazeem had gone on appeal to the Court of Appeal, as Mr Yetman handed up the judgment of Males, Laing and Holgate LJJ in Tazeem v SSHD [2025] EWCA Civ 347. The appeal was brought by Mr Tazeem against the Deputy Judge’s conclusion that he had not been unlawfully detained. There was no cross appeal by the Secretary of State against the conclusions I have set out above. Despite that, Males LJ (who gave the only full judgment) observed obiter at [16] that he
Would have thought that the questions asked by [one of the Immigration Officers] were at least arguably sufficient to warn the applicant that the authenticity of his certificates was in question. However, in the absence of a cross-appeal, we must proceed on the basis that the decision to cancel the appellant’s leave was unlawful.
57. On the facts of the case, the court allowed the appeal, having found that the appellant had been unlawfully detained for a period of between 1 and 12 hours, and assessed the damages for itself, awarding the appellant damages of £4500.
The Respondent’s Guidance
58. In the respondent’s published guidance, Suitability: false representations, deception, false documents, non-disclosure of relevant facts, version 4.0, published on 14 November 2023, there is a section at pp18-19 entitled “Procedural Fairness”. It states as follows:
The Court of Appeal in the case of Balajigari v Home Secretary [2019] EWCA Civ 673 found that in certain cases where the Secretary of State is considering refusing an application, or cancelling permission, on the basis of false representations, etc. the applicant must be given an opportunity to address that allegation of deception before a decision is made. A finding that the applicant has themselves used deception also means subsequent applications can be refused on the basis of the deception under paragraph 9.8.1 and 9.8.2. of Part 9.
If you are considering refusing or cancelling on the basis of false representations or deception, you must provide a ‘Minded to Refuse/Cancel notification’, which means simply that you must tell the applicant you are thinking of refusing the application and/or cancelling entry clearance or permission, based on false representations. You must set out exactly what the allegation is and make it clear you are alleging dishonesty/deception, including whether you allege the deception was that of the applicant or another. You must also give the applicant the chance to respond to the allegation before you make your decision.
You may give the Minded to Refuse/Cancel notification and ask for any response either in a person (usually an interview at the border or by appointment) or by written notification if the person is in the UK or Overseas. You must then consider, in the light of the response (if any is given), whether there is sufficient evidence that the applicant (or, if relevant, a third party) has been dishonest.
You must give the applicant a reasonable period in which to respond to the Minded to Refuse/Cancel notification or, if the applicant states they want to provide documentary evidence to support an explanation given in an interview. What is reasonable will depend on the circumstances, but at the border an explanation ought to be forthcoming, in other cases 10 working days will normally be sufficient. You must then consider, in the light of the response (if any is given), whether there is sufficient evidence that the applicant (or, if relevant, a third party) has been dishonest.
59. There is then a short section on “Minded to Refuse interviews”, after which there is a subheading and some further instructions which I must reproduce in full:
When you must tell the applicant that you are alleging deception and give them an opportunity to respond
You must do so where both of the following apply:
• the applicant may not necessarily know about the information you have considered, or its significance, for example information obtained directly from another government department
• the implications for an applicant of a finding of deception are significant
Examples
The applicant may not necessarily know about the information you have considered, or its significance, for example information obtained directly from another government department
Whether the applicant could reasonably be expected to have known about the issue in advance of your allegation will depend on the circumstances. For example, the applicant may have said they have never received public funds, but DWP may provide information demonstrating receipt of public funds.
Before you make a finding of deception you should give the applicant the chance to explain the discrepancy. Or, you may find that a passport has been damaged in a way that suggests deliberate tampering. The applicant may be aware of the damage and have an innocent explanation, but it may not occur to them that an explanation is required unless you explain your concerns.
The implications for an applicant of a finding of dishonesty are significant.
The seriousness of the consequences for the applicant is a fact-sensitive issue but, for example, if the applicant is lawfully in the UK and is seeking settlement or further leave to remain and will have to leave the UK if refused, that is a serious consequence.
If an applicant would qualify for settlement but for an allegation of deception, the fact that a decision to refuse or cancel will result in the applicant having no leave is a serious consequence.
A decision that exposes the applicant to the compliant environment will have serious implications, because it will mean that they can no longer open a bank account, rent accommodation and so on. The level of seriousness will depend on how deeply the applicant (and any family members) have established roots in the UK.
By contrast, it will rarely be the case that an application for entry clearance or permission to enter reaches the required level of seriousness, because in most such cases a refusal will not change the applicant’s circumstances. [emphasis added]
Analysis
Ground One – Procedural Fairness
60. The Secretary of State accepts that she has a general duty to act fairly towards those who apply for leave to remain and entry clearance. The disagreement before me is as to the content of that duty in a case such as the present.
61. Mr Yetman subjected all of the authorities to which I have referred above to an exacting analysis, submitting that each was distinguishable and that there was in truth nothing which bound the respondent to provide the applicant with notice of the case against her and an opportunity to respond. I accept that none of the substantive decisions above concerns an application for entry clearance. All of the linked cases in Balajigari concerned applications for ILR; Karagul concerned applications for leave to remain from people who were already in the UK; and Tazeem concerned a person who had been granted entry clearance but was refused entry at the border.
62. In my judgment, however, the common feature in each of these cases was that there was an actual or imputed allegation of dishonesty or bad faith with serious consequences for the applicant. As I have endeavoured to demonstrate with my possibly overlong reference to authorities recent and historical, those two factors have often prompted the courts to conclude that an individual in such circumstances should be given prior notice and an opportunity to respond. In my judgment, there was a tendency in Mr Yetman’s submissions to fail to see the wood for the trees. As the Deputy Judge said when considering similar submissions in Tazeem, the factual differences in question do not establish that the principle in Balajigari is any less applicable.
63. The submissions made orally and at [10]-[16] of Mr Yetman’s skeleton argument have no impact on that analysis. He submitted, in summary, that paragraph 9.7.2 of the Immigration Rules was a mandatory provision created by the Secretary of State pursuant to the authority conferred by the Immigration Act 1971 and, citing [56] of Mudiyanselage & Ors v SSHD [2018] EWCA Civ 65; [2018] 4 WLR 55, that “occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process.”
64. The point in this case, however, is that neither the statute nor the Rules prescribe the procedure to be followed. Most importantly of all, neither the statute nor the Rules expressly prohibit the respondent from giving notice of the allegation and an opportunity to respond to it before reaching a decision under paragraph 9.7.2. The fact that neither the statute nor the Rules exclude the duty to act fairly in this context is significant for the reason given at p318C of Wiseman v Borneman [1971] AC 297. Speaking there about the general rules of natural justice (before that term was laid to rest by Lord Roskill in CCSU v Minister for the Civil Service [1985] AC 374), Lord Wilberforce acknowledged that the legislature may exclude or limit the application of those rules but noted that “it has always been insisted that this must be done clearly and expressly”. Similar observations were made by Lord Woolf MR and Phillips LJ in the Fayed case, at p774 and p789 in particular.
65. Where the legal framework is silent on the procedure to be followed, the courts will imply such “additional procedural safeguards as will ensure the attainment of fairness”, as Lord Bridge said in Lloyd v McMahon. It is for that reason that the courts have on various occasions spoken of the common law supplementing the legislative scheme or “supplying the omission of the legislature”: Cooper v Wandsworth (1863) 14 CBNS 180, per Byles J, as cited with approval in Wiseman v Borneman.
66. We are a thousand yards or more away from the circumstances under consideration in Mudiyanselage & Ors. That was a case under the “clear and predictable” Points Based System and it concerned the extent to which the principles of “evidential flexibility” applied in that context. None of the applicants was accused of dishonesty or deception; each had been refused because the evidence which they had provided with their application was insufficient to discharge the burden upon them of meeting clear and express requirements in the PBS Rules. Echoing earlier dicta in Alam v SSHD [2012] EWCA Civ 960; [2012] Imm AR 974, the court (Sir Brain Leveson P, Underhill LJ and Sir Colin Rimer) held that the applicants bore responsibility to “ensure that the letter of the requirements of the PBS is observed” and that there was no longer a general policy to allow the correction of minor errors.
67. I consider the published guidance to which I have referred to be a helpful and concise guide for caseworkers as to the principles which apply when considering whether to alert individuals to concerns of dishonesty or bad faith of which they were previously unaware. The guidance reflects the way in which the law demands that consideration be given to the nature of the allegation and to the consequences of refusal. As Mr Yetman observed, and was entitled to observe, there is no challenge to any aspect of that guidance before me, and I am not invited to declare that it is unlawful in whole or in part. Given that perfectly proper objection, I will only observe that I have concerns about the accuracy of the suggestion that it will “only rarely” be the case that an application for entry clearance reaches the required level of seriousness to justify prior notice of an allegation.
68. In many cases in which an Entry Clearance Officer reaches a finding of deception, the consequences for the individual applicant will be very serious indeed. They will often be the subject of a lengthy ban on being granted entry clearance of leave to remain. There might also be other consequences as a result of the ECO’s conclusions. Application forms for UK entry clearance and leave to remain frequently ask whether the individual has ever been refused entry or failed to comply with the immigration control regime of a third country, and I am aware that other countries understandably ask similar questions.
69. A person who has been refused entry clearance to the United Kingdom on grounds of deception might therefore be banned from entering this country for many years, and might also face additional difficulty in entering others. There might also be other contexts in which a person would be required to disclose such a refusal as it casts doubt on their character. Whilst a refusal of entry clearance does not “change the applicant’s circumstances” by subjecting them to the UK’s “compliant environment” (SSHD v RAMFEL [2025] EWCA Civ 1843 refers, at [26]-[27]), it is wrong to suggest that such a decision does not have serious and lasting consequences for the individual.
70. In my judgment, therefore, the duty to act fairly requires that an entry clearance applicant who is accused of deception for reasons she could not reasonably have been expected to know about, and who would face mandatory refusal of future applications on account of a finding of deception, should generally be given notice of that allegation and an opportunity to respond to it before her application is decided. I respectfully agree, therefore, with UTJ McWilliam’s similarly expressed conclusion on that issue in Cejku v ECO JR-2024-LON-003072, on which Mr Karim relied.
71. The applicant in this case was accused of falsifying a bank statement in connection with her application for a visit visa. The ECO’s finding that she had indeed falsified that document had serious consequences for her. She was made the subject of a ten year “ban” under paragraph 9.8.1 of the Immigration Rules. That will prevent her from visiting her family members in the United Kingdom. She also has family members in Germany, and is understandably concerned that she might be required to disclose the refusal and the basis for it in her dealings with the German immigration authorities. These are serious consequences, founded upon an allegation of deception. In my judgment, the respondent was clearly required to put such an allegation to the applicant and to give her an opportunity to respond.
72. It remains, however, for me to consider whether the applicant was in fact provided with adequate notice of the respondent’s concerns and whether, in truth, she did have an opportunity to respond. In answering those questions, it is necessary to return to the chronology which I have set out above.
73. The applicant was notified of the respondent’s concern that the HDFC bank statement was a false document when her first application was refused on 1 November 2024. I have reproduced the terms of that refusal in full at [5] above. The applicant then instructed her current solicitors and intimated that she was minded to challenge that decision by way of a letter before action on 26 November 2024. Amongst the assertions made in that letter, she stated that she was not responsible for the false document because the application had been prepared by a “local consultant” against whom she had initiated legal proceedings in India.
74. The respondent agreed to withdraw and reconsider her decision but before she could do so, the applicant made the refund request to which I have referred above, and then made another application for entry clearance, all with the assistance of her current solicitors. This sequence of events needs to be considered in a little more detail because Mr Karim submitted orally and in writing that the respondent’s agreement to reconsider the first decision and the applicant’s subsequent withdrawal of the first application placed her, in effect, back at square one. His submission, in other words, was that nothing which had gone before could suffice to give the applicant proper notice of the allegation of forgery; it was as if that allegation had never been made, and the respondent was required to give fresh notice of the allegation and a fresh opportunity to respond to it if it was to be relied upon.
75. At the hearing, I harboured some doubt about the effect of the Refund Request and I asked Mr Yetman to make enquiries as to whether or not the respondent had a record of receiving a request to cancel her first application for entry clearance. I had noted that there was nothing on the online record, a screenshot of which appears at the very end of the trial bundle, to confirm that it relates to the applicant’s case, although I note the statement from the applicant’s solicitor which confirms at [7] that the applicant cancelled her application on 13 December 2024. I did not receive a clear answer to my question. But, as Mr Karim observed, the respondent has never contended in writing that the applicant did not seek to withdraw the application on 13 December 2024. In those circumstances, I consider the fairest course to be to accept that the applicant or her solicitor logged in to her application account online and sought to cancel her application in that way.
76. I accept Mr Yetman’s submission, however, that the respondent is not required to treat an application as withdrawn or cancelled in these circumstances. He referred to the respondent’s guidance on Validation, variation, voiding and withdrawal of applications, version 9 (14 November 2023) which applies to most applications for entry clearance and leave to remain, and was applicable to this case. At p27 of that document, there is the following guidance:
Requests to withdraw applications
An applicant can ask to withdraw their application for entry clearance, permission to enter or permission to stay at any time before a decision is made on the application, in accordance with paragraph 34H of the Immigration Rules, by either:
• written request by email or post
• using the online form: Cancel your visa, immigration or citizenship application
If the request is ambiguous, you must confirm the withdrawal request with the applicant. The date of withdrawal is the date the request is received by the Home Office, calculated in line with the information set out in Date of application: original application.
There is no requirement to agree to the withdrawal of the application and you may instead, where appropriate, decide the application.
The most common reason to refuse to accept a withdrawal request from an applicant and decide an application is where there is a suspicion that deception has been exercised by the applicant. For example, if the applicant has knowingly submitted fraudulent documents.
You must notify the applicant using the ‘Withdrawal’ template that they are refusing to accept the request to withdraw.
77. The respondent was certainly entitled, in line with that guidance, to proceed to consider the application despite the events I have described above. The applicant’s solicitors were plainly aware that this remained a possibility, as is clear from the request in the covering letter for the second application which asked the ECO “not to consider the cancelled application”. It is correct to observe, as Mr Karim did in his oral submissions, that the respondent did not issue the applicant with a separate notice that she was refusing to accept the withdrawal but nothing turns on that; it could not have been clearer to the applicant that the respondent had decided not to treat the application as withdrawn because she proceeded to consider and refuse it. Her solicitors understood that that was a possibility and the guidance made clear that it was likely because of the suspicion of deception. The Refund Request acknowledgment which I have reproduced at [9] above was certainly not a clear and unequivocal notification that the application had been withdrawn.
78. The respondent therefore proceeded to reconsider the first application. In doing so, she took account of what she had been told by HDFC bank. She also took account of what had been said by the applicant’s solicitors in the letter before action. She gave wholly logical reasons for rejecting the suggestion that a third party had been involved in the completion of that application, and she concluded that responsibility for the false document lay squarely with the applicant. The first application was therefore refused under paragraph 9.7.2 for the reasons I have quoted in full at [11] above.
79. The reality of the chain of events which I have described above is as follows. Firstly, the applicant was notified of the respondent’s concern about the HDFC statement in the decision which was made on 1 November 2024. Secondly, the applicant responded to that concern in her letter before action of 26 November 2024. Thirdly, the applicant attempted to withdraw that application rather than making any further representations about the allegation. Fourthly, the respondent reconsidered the application, taking into account all that had been said by the applicant, rejecting her suggestion that a third party was to blame, and concluding that the deception was the applicant’s own.
80. I do not accept Mr Karim’s submission that anything more was required to comply with the respondent’s duty to act fairly in this specific case. To suggest, as he did orally, that the “allegation had fallen away” and that the applicant had no effective notice of the allegation against her is to participate in a fiction. The applicant knew full well that the forgery of the HDFC bank statement had been detected. From that point, she had a total of 81 days from the date of the first refusal to make any representations she wished to make. Her solicitors were clearly aware of the possibility that the respondent might make a decision on that application despite the request for it to be withdrawn, yet nothing more was said than had been said in the letter before action dated 26 November 2024.
81. I consider the respondent’s approach, and the conclusions I have reached above, to be fully in accordance with the terms of her published policy. As Mr Karim noted, that policy requires that an applicant be given notice of a serious allegation of deception where they could not “reasonably be expected to have known about the issue in advance of your allegation”. This, however, is a case in which the applicant obviously did know about the allegation, and had made representations about it.
82. Mr Karim additionally submitted that the respondent’s process was unfair because the Document Verification Report was not provided to the applicant at any stage before the two refusals on 20 January 2025. That argument is unmeritorious. There is no principle of public law which requires the respondent to produce the evidence upon which she relies in this context; it suffices that is informed of the gist of the case which he has to answer, as Lord Mustill said in Doody. In that case, it was held that the prisoner was not entitled to the full opinion of the sentencing judge so that he could make representations upon it to the Home Secretary. Lord Mustill made clear that the requirement of procedural fairness was “only that the prisoner shall learn the gist of what the judges have said.”
83. In this case, the refusal of 1 November 2024 stated that enquiries had been made with HDFC Bank in connection with the bank statement submitted. Those enquiries had “confirmed that this document is not genuine.” That provided the applicant with enough information to respond to the allegation, and I reject any suggestion that the respondent needed to tell the applicant any more. Given the source of the information, there was no need to give the name of the person at the bank, or the date of the enquiry, or the way in which they conducted their checks. The applicant was able to understand the nature of the allegation and she was able to respond to it with evidence or argument as she saw fit.
84. Therefore, whilst I accept Mr Karim’s submission that the respondent was obliged to give the applicant notice of the allegation and an opportunity to respond, I consider that the chain of events in this case provided notice and an opportunity to respond. I therefore conclude that the first ground is not made out.
Ground Two - Rationality
85. By the second ground, Mr Karim submits that the respondent’s decisions are irrational, unreasonable and that they fail to engage with the evidence and information. As that title suggests, this single ground contains a number of different challenges. I will consider those challenges in the order in which they appear in the skeleton argument. Whilst I note Mr Yetman’s objection that the scope of those submissions strays to some extent beyond the case pleaded in the grounds for judicial review, I consider the extent of any such expansion to be minimal and, in any event, I do not consider there to be any merit in any of the submissions advanced orally or in writing in relation to this ground.
86. Mr Karim submits that the respondent failed to engage with the requirement that the applicant was intentionally dishonest, as to which he relies on AA (Nigeria) v SSHD [2010] EWCA Civ 773; [2011] 1 WLR 564 and Ivey v Genting Casinos [2017] UKSC 67; [2018] AC 391. Applying those authorities, he submits that the respondent was required to consider the actual state of the applicant’s knowledge or belief as to the facts and then determine whether her conduct was honest or dishonest by the standards of ordinary decent people. The first part of that enquiry is subjective, the second is objective. I consider that summary of the law to be uncontroversial. Mr Yetman did not suggest otherwise.
87. The submission is unmeritorious when set against the wording of the decision on the first application. The respondent concluded that the applicant had submitted the false bank statement and that she had done so with “an intention to deceive”. That conclusion followed the respondent’s rejection of the suggestion in the letter before action that a third party had been responsible for the document. The ECO rejected that contention because she had noted that there was no previous reference to an agent or third party having assisted with the application form. The respondent therefore concluded that the only person who was responsible for the submission of the forged document was the applicant, and that the submission of a forged document was indicative of dishonesty. That was a perfectly adequate process of reasoning and a perfectly adequate conclusion to the question posed by the authorities.
88. Mr Karim then submits that the respondent failed to adopt the approach set out by Green LJ in Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 WLR 4055, at [22]:
The legal burden of proving that the Appellant acted dishonestly lies upon the Secretary of State. There is a three-stage process: (i) the Secretary of State first must adduce prima facie evidence of deception ("the first stage"); (ii) the Appellant then has a burden of raising an innocent explanation which satisfies the minimum level of plausibility ("the second stage"); and (iii), if that burden is discharged, the Secretary of State must establish on a balance of probabilities that this explanation is to be rejected ("the third stage").
89. The process to which Green LJ referred in that case was a judicial process; he was considering the way in which a judge of the First-tier Tribunal should decide whether an applicant had been dishonest in an application form. That is clear from [21] of his judgment, as it is from the more recent analysis of the process in Chowdhury v SSHD [2025] EWCA Civ 2025. We are not concerned in this case with the proper approach of a fact-finding tribunal and its treatment of the parties to that litigation, but with a process of administrative decision making. I do not consider the respondent to be obliged to follow the same process. In any event, what matters is the substance and not the form of the decision. In substance, what is required is that the respondent must set out the allegation, consider any response to it and reach a reasoned conclusion as to whether the applicant was intentionally dishonest.
90. That is precisely what the respondent did in the first of the decisions she made on 20 January 2025. As I have already explained, she stated that she had received information that the bank statement was not genuine before considering and rejecting the applicant’s explanation for that difficulty. Even if the guidance in Ullah applies fully to administrative decision making, the respondent’s first decision complied in substance with its requirements.
91. The second decision is, as I have said, very much briefer. But it is necessary to read the two decisions together. The first expresses the conclusion that the applicant used deception, the second follows on from the first because: (a) in substance, there was nothing further for the respondent to consider in reaching that decision; and (b) the established historical deception together with the fact that the application was made after less than a decade meant that refusal was mandatory.
92. Mr Karim submits that the respondent left material matters out of account in concluding that the applicant had used deception in her first application. He points to several factors at [37] of his skeleton argument, including the fact that the applicant had previously complied with UK entry clearance requirements and that the applicant was being sponsored by her son, who is comparatively well off, as a result of which she had no need to rely on a false bank statement.
93. There is no mention of those factors in either decision but there did not need to be. The fact that the applicant had previously returned from the UK and the fact that her sponsor is comparatively well off did not bear on the applicant’s explanation for the false document. She did not contend that the respondent had erred in concluding that the document was false; she contended that it had been submitted by a third party. The respondent considered that explanation in some detail and rejected it because there had been no reference to the third party in the application, which gave every indication that it had been completed by the applicant herself. Her explanation having been rejected for proper reason, the respondent was faced with a situation in which the only remaining candidate for submitting a false document was the applicant herself. The respondent therefore concluded that the applicant must have submitted that document with the intention to deceive. That process of reasoning is unaffected by the factors to which Mr Karim referred.
94. In my judgment, therefore, the reasoning in both decisions was adequate and the respondent did not leave material matters out of account in either decision.
95. Mr Karim submits that the second decision was unlawful because the respondent failed to apply her guidance Suitability: false representations. Deception, false documents, non-disclosure of relevant facts, version 4.0, 14 November 2023. He submits in reliance on that guidance that it was relevant for the respondent to take into account the fact that the applicant had attempted to withdraw her first application as a result of “discrepancies”. I do not accept that it was necessary for the respondent to refer to that in the first or the second decision. The attempt to withdraw the first application does not on any rational analysis support the applicant’s contention that she was the victim of a dishonest consultant. The attempt to withdraw that application is equally (if not more so) likely to be the actions of a dishonest person seeking to escape from a difficult situation by removing the respondent’s ability to make a finding on their dishonesty.
96. I do not accept the submission at [41] of Mr Karim’s skeleton argument, that “the public interest must encourage such withdrawals”. I consider Mr Yetman to be correct in his submission that the public interest in fact favours the respondent making decisions on such matters even if there is an attempt to withdraw the application. Where the respondent finds there to be dishonesty, it is in the public interest for there to be a decision to that effect. Equally, where the respondent consider the explanation put forward by the applicant and accepts that there was no intention to deceive, it is in the public interest for that to be made clear, whether or not an attempt has been made to withdraw the application.
97. The respondent did not separately explain why she had proceeded to reconsider the original application despite the applicant’s attempt to withdraw it but, as I have already said, the reason for that decision is clear and in accordance with the published guidance from 2023; this was a case in which deception had been alleged and there was a proper reason to reach a conclusion in that respect.
98. Mr Karim suggests that the respondent did not consider various factors in the second decision but there is no merit in that submission for the reasons I have already given; the second decision followed on from the first and there was no reason for the respondent to reconsider whether the applicant had practised deception in the first application. The bank statement from the State Bank of India cast no light on that question. It covers the period from 1 November 2024 to 20 December 2024 and it shows that the balance until 18 December was under 12,000 rupees, which is just over £100. On 18 December, five days after the applicant sought to withdraw the first application and five days before she made the second application, two large deposits increased the balance to just over 436,000 rupees, which is more than £3600. These events cast no light on the applicant’s intentions when she made the first application and were not relevant to the second decision. Had they been relevant, it is difficult to see how the inflation of the balance very shortly before the second application would not have cemented the respondent’s concerns.
Conclusion
99. I do not therefore consider that the respondent fell into public law error in any of the ways contended for by Mr Karim. The respondent was required to give her notice of the allegation of the deception, and an opportunity to respond to it, but the way in which this case evolved meant that the respondent complied with that obligation in substance. And, in substance, the respondent complied with her public law obligations in reaching both of the decisions of 20 January 2025. Those decisions were reached with reference to the relevant considerations, in accordance with the law, and were rationally open to the respondent.
100. There was a good deal said about materiality in the submissions before me. Since I have concluded that the respondent did not err in any of the ways contended for by Mr Karim, I do not propose to consider that question or what was said by Lewis LJ in R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58.
101. The application for judicial review will therefore be dismissed. I invite counsel to agree on the form of the order.
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Postcript
Costs
102. After the judgment had been circulated in draft, Mr Karim submitted in writing that there was good reason to depart from the usual order as to costs, and that the appropriate order was that there should be no order as to costs, or alternatively that any order as to costs in favour of the respondent should be significantly reduced.
103. Those submissions were premised primarily on the fact that the applicant had succeeded on the issue of principle but also on the late appearance of the submission on which the respondent ultimately prevailed. Mr Karim submitted that that argument was absent from the Summary Grounds of Defence and had been taken for the first time in the Detailed Grounds of Defence.
104. For his part, Mr Yetman submitted in response that the Secretary of State was the victor and that there was no principled reason to depart from the usual order.
105. The Tribunal Procedure (Upper Tribunal) Rules 2008 are silent on such matters and there is currently no Upper Tribunal equivalent to the Administrative Court Judicial Review Guide 2025 (“the ACO Guide”). I have therefore drawn on the relevant provisions of Part 44 of the Civil Procedure Rules and the commentary at paragraph 25 of the ACO Guide in resolving this issue.
106. The usual order is obviously that the successful party should recover its costs but departure from that principle is permissible for good reason. The Upper Tribunal retains a broad discretion as to costs. It is appropriate to give real weight to the overall success of the winning party, and there is no automatic rule requiring reduction of a successful party’s costs if the party loses on one or more issues: R (A) V North London Integrated Care Board & Anor [2024] EWHC 2881 (Admin), citing HLB Kidson v Lloyd’s Underwriters [2007] EWHC 2699 (Comm).
107. Applying the principles in those authorities, and having considered paragraph 25 of the ACO Guide as a whole, I come to the following conclusions.
108. Firstly, I do not consider this to be a case in which it would be appropriate to make no order as to costs. To do so would be to fail to give real weight to the overall success of the Secretary of State.
109. Secondly, however, I do accept Mr Karim’s submission that it would not be appropriate on the facts of this case to order that the applicant should pay all of the respondent’s costs. She prevailed on the question of principle, to which much of the written and oral submissions were directed. Mr Karim is also correct to observe that the basis on which the Secretary of State was ultimately successful (that, on the facts, a fair procedure was followed without a separate “minded-to” process) was not raised squarely in the Summary Grounds of Defence.
110. The respondent did plead that argument in the Detailed Grounds of Defence, however, and the parties to judicial review litigation are under an ongoing obligation to review the merits of their cases. The applicant therefore had proper notice of the basis upon which she ultimately failed.
111. Doing the best I can, and noting that making a proportionate reduction in these circumstances is necessarily an inexact science, I consider that the proper course is to make a reduction of 30% to the respondent’s costs. Such an order reflects both the real weight which must be given to the respondent’s overall success and the countervailing considerations in the two paragraphs above.
112. I will therefore order that the applicant shall pay 70% of the respondent’s costs. No separate objection has been made to the sum claimed in the respondent’s comprehensive Statement of Costs, as filed on 27 October 2025. The total sum claimed is £10,702.80. That is a comparatively modest sum for a case of this complexity. I summarily assess the respondent’s costs at 70% of that sum, therefore, and order that the applicant shall pay the respondent’s costs of £7,491.96.
Permission to Appeal
113. Mr Karim also seeks permission to appeal to the Court of Appeal, submitting that I erred in concluding on the facts that the applicant had been given proper notice of the allegation against her and an opportunity to respond. Each of the arguments he seeks to make was considered in detail, however, and I do not consider there to be any arguable error of law in the judgment. I will therefore refuse the application for permission to appeal.
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