Tribunal decisions

The decision

JR-2025-LON-002510
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review

In the matter of an application for Judicial Review

The King on the application of
Muzaffer Dag
Applicants
and

Secretary of State for the Home Department
Respondent

ORDER

BEFORE Upper Tribunal Judge Ruddick

HAVING considered all documents lodged and having heard Mr P. Saini of counsel, instructed by Kreston Solicitors, for the applicant and Mr J. Gajjar of counsel, instructed by GLD, for the respondent at a hearing on 23 March 2026

IT IS ORDERED THAT:

1. The application for judicial review is allowed for the reasons set out in the attached judgment.

2. The respondent’s decision dated 23 May 2024 is quashed.

3. The respondent’s Administrative Review decision dated 2 May 2025 is quashed.

4. The applicant’s application is remitted to the respondent for lawful reconsideration in light of the Tribunal’s judgment.

5. The respondent shall reconsider the application within 28 days of this Order.

6. The respondent shall pay the applicant’s reasonable costs on the standard basis, to be assessed if not agreed.

7. Any agreed costs shall be paid within 28 days of agreement.

8. The respondent has sought permission to appeal to the Court of Appeal on the ground that “the Tribunal’s application and interpretation of the principles confirmed in Balajigari is wrong in law”. Permission to appeal is refused because this is a bare assertion and hence not an arguable ground of appeal. Nor do I see any error in my decision.

Signed: E. Ruddick

Upper Tribunal Judge Ruddick

Dated: 17 April 2026

The date on which this order was sent is given below

For completion by the Upper Tribunal Immigration and Asylum Chamber

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 21/04/2026

Solicitors:
Ref No.
Home Office Ref:

Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).

Case No: JR-2025-LON-002510
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

17 April 2026
Before:

UPPER TRIBUNAL JUDGE RUDDICK

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Between:

THE KING
on the application of
MUZAFFER DAG
Applicant
- and –

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr P. Saini
(instructed by Kreston Solicitors), for the applicant

Mr J. Gajjar
(instructed by the Government Legal Department) for the respondent

Hearing date: 23 March 2026

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J U D G M E N T

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Judge Ruddick:
1. This judicial review turns on two main issues:
(i) If the Secretary of State for Home Department forms a view that an applicant for further leave to remain is of bad character, is she required to inform them of this and give them an opportunity to respond prior to making her decision?
(ii) If the applicant does not have a right of appeal against the refusal decision, but only a right of Administrative Review, is the respondent required to accept new evidence responding to the finding of bad character, even if that is not expressly permitted by the rules found in Appendix Administrative Review of the Immigration Rules?
2. The applicant is a citizen of Turkey, who entered the UK lawfully in 2020 in order to establish himself as a self-employed plumber. In June 2021, he applied in time for further leave to remain, and in October 2021, the respondent granted him one year’s further leave. The Office of the Immigration Services Commissioner (“OISC”) subsequently found that his legal representatives never informed him that his application had been granted. The applicant says that his legal representative repeatedly told him that his application was still pending, and that he therefore unwittingly became an overstayer when the new period of leave expired in October 2022.
3. In March 2024, the respondent served the applicant with a notice that he was an overstayer. A few weeks thereafter, the applicant applied for further leave, stating that neither he nor his representative had ever received the Home Office’s 2021 decision and asking for discretion to be exercised in his favour on the grounds that he had never intended to overstay. In May 2024, the respondent refused that application on the grounds that the applicant was an overstayer and that discretion should not be exercised in his favour because his “clear disregard for immigration laws and processes” meant that he was of bad character.
4. The applicant applied for Administrative Review (“AR”), and while the AR was pending, he collected further evidence – including the finding of the OISC investigation – corroborating his account of not having been informed of the October 2021 decision. In May 2025, the respondent refused to take any of that further information into account and upheld the refusal decision.
5. The applicant says, in summary, that:
i. the respondent’s initial refusal decision was unlawful because her decision-maker refused to take into account the evidence that he had been unaware of the October 2021 decision or to consider whether it had been validly served on him, and
ii. the entire decision-making process was unfair because the respondent did not give him a chance to respond to the allegation that he had shown a clear disregard for immigration rules and processes and was of bad character prior to making the initial decision and because the respondent refused to consider his further evidence rebutting that allegation during the AR process.
The applicant’s immigration history
6. Under European law, the UK was not allowed to apply immigration rules to Turkish citizens that were more restrictive than those that applied when the UK joined the European Economic Community in 1973. This was because of a “standstill clause” contained within article 41 of the Additional Protocol, concluded in 1970, to the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara in 1963 (“the Ankara Agreement”). Article 41 provided: “The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”
7. Until the end of the Brexit transition period on 31 December 2020, the standstill clause meant that Turkish citizens seeking to enter the UK to establish a business or for employment could apply for leave to enter or remain in the UK under the rules governing such applications that had been in force in 1973. These were contained at HC509 (Rules for Control on Entry) and HC510 (Rules for Control After Entry). In line with Home Office usage, I will refer applications made by Turkish citizens under HC509 or HC510 as “ECAA applications” and to the leave granted as “ECAA leave”. Slightly different principles applied to applications by businesspeople and by workers, but nothing turns on that here.
8. As part of the Brexit transition, on 31 December 2020, Appendix ECAA Extension of Stay of the Immigration Rules came into effect. This allows Turkish businesspeople who had been granted or applied successfully for ECAA leave prior to that date to extend their stay and eventually qualify for settlement.
9. The applicant is a citizen of Turkey, born in 1981. On 25 February 2020, he applied for entry clearance as a Turkish businessperson. His application was granted, and he was issued entry clearance valid from 22 June 2020 through 22 June 2021. He entered the UK at some point prior to 31 December 2020.
10. On 7 May 2021, he instructed Visa Club Ltd., an OISC-regulated organisation, to submit an application for further leave on his behalf under Appendix ECAA: Extension of Stay. The applicant was assisted by Sibel Ozcelik, who presented herself as an authorised immigration advisor but was not. The actual relationship between Ms Ozcelik and Visa Club Ltd. is opaque, and Ms Ozcelik also maintained her own immigration advisory service, Defne Kate Visa.
11. The application for further leave was submitted in time on 21 June 2021, and on 5 October 2021, the respondent granted the applicant one year’s further leave, until 5 October 2022. The decision informing the applicant of this decision was sent by email to contact@visaclub.co.uk, which was the contact email given on the application form. In the course of a subsequent investigation by OISC into Visa Club Ltd., Visa Club Ltd. disclosed that the office address given in the application form for the delivery of the applicant’s Biometric Resident Permit (“BRP”) had been incorrect.
12. It is common ground that the applicant did not make an application to extend his leave before it expired and has therefore been an overstayer since 6 October 2022. On 7 March 2024, the respondent served the applicant with Notice of Liability to Removal as an overstayer.
13. On 23 May 2024, the applicant applied for further leave under Appendix ECAA with the assistance of ARB Solicitors. The only requirements of the Rules relevant here are the following:
“ECAA 2.1. The suitability requirement for the ECAA Extension of Stay route will be met unless:
[…]
(c) in respect of conduct after 11pm on 31 December 2020, the applicant falls for refusal as provided for in Section 1 of Part 9 of these rules or ECAA 2.2.
“ECAA 2.2. If applying for permission to stay and in respect of conduct after 11pm on 31 December 2020, the applicant must not be:
(a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or
(b) on immigration bail.”
and
“ECAA 4.1. To meet the ECAA business person requirement, the applicant must meet all the following requirements:
(a) the applicant must have permission as an ECAA business person;”
14. In their covering letter, under the heading “Immigration History of the Applicant”, ARB Solicitors wrote:
“The Applicant is a Turkish national who was initially granted leave to enter/remain as an ECAA Turkish Businessperson in 2020. Subsequently, he applied for further leave to remain, but unfortunately, he did not receive any decision from the Home Office regarding this application.
“The applicant instructed Sibel Celik [sic], who was working for Visa Club Ltd at the time, to act on his behalf and submit his supporting documents to the Home Office. However, to the applicant’s dismay, he never received any decision on his application from either the Home Office or Visa Club Ltd.
“Our firm was instructed by the Applicant in March 2024 to assist with this matter, and we immediately sought clarification from the Home Office regarding the status of his application. We were astonished to learn that the Applicant’s application was actually granted from 05 October 2021 until 05 October 2022. Unfortunately, neither Applicant nor Sibel Celik [sic] were aware of this decision, and as a result, the Applicant did not have the opportunity to submit any further application of take any necessary actions.
“Furthermore, the Applicant has not received his Biometric Residence Permit (BRP) card. It is possible that the card was sent to his previous address, which was a shared accommodation.”
15. It was also submitted that the applicant’s failure to travel to Turkey at the time of an earthquake in his home area in April 2022 was evidence of his lack of knowledge of the October 2021 decision: “Had he been informed of his granted leave, he would have promptly visited his family to offer support.”
16. After setting out the relevant paragraphs of Appendix ECAA, ARB Solicitors submitted that the applicant “satisfies the rules”. There was thus no explicit acceptance that he satisfied neither ECA 2.2.(a) nor ECAA 4.1.(a). The letter ended,
“On a final note, the Home Office is reminded that the Applicant is of good character. He has adhered to the terms and conditions of his stay and has never been in breach of any criminal or civil provisions. The Applicant is keen to continue his business in the UK and believes that he will be able to maintain a positive contribution to the UK economy.”
17. In support of the application, the application submitted various documents related to his business, together with a signed letter from Ms Ozcelik. She confirmed that she had assisted the applicant with his 2021 extension application “while I was employed at Visa Club Ltd” and that she “continued to be in contact with [him] even after not practicing with Visa Club Ltd.” She further stated:
“[t]o the best of my knowledge, I have not received any decision from the Home Office regarding Mr. Dag’s application, neither via email nor by post. Mr Dag has also informed me that he has not received his Biometric Residence Permit (BRP) card from the Home Office. It is important to note that Mr. Dag was facing personal tragedy during the time of the earthquake in Kahramanmaras in April 2022, losing many relatives, and his wife and children were displaced. Given these circumstances, Mr. Dag would have travelled to Turkey to be with his family if he had been aware of the decision on his application. However, since neither of us received any communication from the Home Office regarding the outcome of his application, he remained unaware.
“As neither Mr. Dag nor I were aware that his leave to remain had been granted, we did not proceed with any further applications. Mr. Dag was under the impression that his application was still pending, and therefore did not knowingly wait for any decision during this period.”
The first decision under review: the refusal decision of 23 May 2024
18. The respondent refused the application on 23 May 2024. The caseworker set out the applicant’s immigration history and concluded that he had overstayed since 6 October 2022. Reference was then made to Para. ECAA2.2. In addition,
“Further to the highlighted section of paragraph 4 of HC510 your application is refused because you have breached immigration law in the following regard
You have overstayed previous leave:
You have made you application having overstayed your previous leave by approximately 595 days;
Your previous leave expired on 05 October 2022 therefore you have had no valid leave to remain since this date.
It must be noted that an applicant may not automatically be refused as an overstayer on this basis alone (discretion can be applied for incidental overstaying), however the length of time as an overstayer which in this case is approximately 595 days and the fact that you have failed to provide any substantial evidence to explain this period of overstaying, shows a clear disregard for the immigration process and the rules in place within the United Kingdom in relation to the immigration process.
The Secretary of State, having taken into account the circumstances of your case and acknowledging your reasoning, is therefore not prepared to exercise discretion in your favour in light of your conduct and character.”
19. The decision did not, in fact, contain an excerpt from paragraph 4 of HC510.
The application for Administrative Review
20. On 3 June 2024, the applicant applied for Administrative Review. The case working error identified in the application form was a “failure to apply the evidential flexibility rules”, specifically by failing to request further information or inviting the applicant to an interview. It was also submitted in the application form that the decision-maker had not considered the facts or given proper attention to the evidence that was submitted.
21. His solicitors now for the first time blamed Ms Ozcelik for the applicant’s failure to apply to extend his leave in time. The grounds began by setting out the “Background”:
“3. Applicant has instructed Sibel Ozcelik of Defne Kate Visa (at the time) where she stated to be an ‘expert’ in this visa type. Applicant paid her a total of £600 and instructed her to make an application of extension of stay in June 2021, kindly find attached bank statements to demonstrate these payments.
“4. For over two years after this date, applicant asked this caseworker namely Sibel Ozcelik for updates on his application – Please find attached WhatsApp Chat screenshots in evidence for your consideration. As you may appreciate during this period of COVID-19 pandemic, it was not unusual to experience delays on applications, specifically on ECAA applications. Applicant was deceived by this individual who chose not to use his email address for the application. Upon discovery that his matter was decided in October 2021, Sibel Ozcelik agreed to write a letter however she has not admitted to the above and only stated she did not receive any decisions for Mr Dag’s application from the SSHD […] [emphasis in original]
“5. The Applicant has submitted the extension application with the help of this visa consultancy company. Applicant has informed us that he has been deceived and was told that Sibel Ozcelik no longer works at Defne Kate Visa which has been trading through various companies […] and had to spread this narrative as they deceived others and ruined their immigration status. Applicant was never provided with the application form hence, does not know the email address or postal address that was provided.”
22. It was also clarified here that the earthquake in the applicant’s home area had been in February 2023, not April 2022 (Ms Ozcelik was blamed for this error as well). Once again, it was cited as evidence that the applicant did not know his immigration status at the time: he did not return because he thought his application would be decided soon and he did not want to “throw away years of effort in relation to his business” by leaving the country while it was pending.
23. The grounds then set out the law and guidance regarding ECAA applications, emphasising that the guidance suggested interviewing an application if the caseworker had concerns, inter alia, about “inconsistencies in the evidence provided” or “the credibility of the application”. It was submitted that the decision-maker had acted unfairly in failing to invite the applicant to an interview. Reliance was placed on R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 and R (Q) v SSHD [2003] EWCA Civ 364.
24. In response to the reasons for refusal, the AR grounds repeated the factual background set out above and added that the applicant had continued to run his business throughout the period of his overstaying, because he believed he held valid leave under Section 3C of the Immigration Act 1971. The grounds also asked why the applicant would not have applied to extend his leave if he had known it was to expire on 5 October 2022, given that he was running his business successfully and would have qualified for an extension. It was repeated that he had been misled by Ms Ozcelik and had never received any decision on the 2021 application.
25. The AR grounds concluded:
“We submit that […] the applicant has extenuating circumstances where we believe it was appropriate for the decision maker to use discretion in relation to the applicant’s claim. There is substantial evidence in favour of the applicant demonstrating that he has been misguided, misadvised and deceived since he had instructed this visa consultancy firm.
“It is apparent […] that [the applicant] genuinely did not have any intention to overstay and jeopardise his immigration status.”
26. At this stage, the applicant submitted new evidence, consisting of a personal statement asserting that he had repeatedly chased Ms Ozcelik for an update on his application. He confirmed that he had received neither the decision of October 2021 nor a BRP. He said he had been a victim of deception and would never have knowingly overstayed as “this would have been extremely irresponsible and would mean to eradicate all efforts and investments I have put into my business.” He submitted WhatsApp messages showing him chasing Ms Ozcelik for an update on 15 and 25 October 2021, 21 March 2022, 27 December 2022, and 2 November 2023 and her various excuses and promises to contact the Home Office. According to the AR grounds, the applicant also submitted Companies House documents relating to Ms Ozcelik and evidence that he had been “running his business successfully” between 2021 and 2022 and therefore would have had no reason not to apply to extend his visa. Finally, the applicant’s solicitors informed the respondent that they had made a SAR request in order to “fully investigate which email was used for the decision and which address the BRP has been posted to”, and that the findings would be forwarded to the respondent in due course.
27. The applicant’s next communication with the respondent was on 9 October 2024, when his solicitors wrote to the AR team to inform them that:
i. The SAR confirmed that the October 2021 decision had been sent to contact@visaclub.co.uk;
ii. On 18 September 2024, after persistent requests, they had finally received the decision email from Visa Club Ltd.;
iii. “Oleksandr” at Visa Club Ltd. had written to them saying, “Apologies, my colleague Sibel didn’t forward me HO decision initially”. This indicated that there was some sort of “internal issue/conflict” at Visa Club Ltd. and that they had been negligent.
28. They enclosed a print out of an email dated 18 September 2024, sent from “Sibel Defne ” but signed by “Oleksandr”. It stated, in full, “Apologies, my colleague Sibel didn’t forward me HO decision initially. Please find it below.” The respondent’s email of 5 October 2021 informing the applicant that he had been granted one year’s leave was attached.
29. On 11 January 2025, the applicant’s solicitors wrote to the AR team a third time. They forwarded an email from OISC, dated 3 January 2025, confirming that the applicant’s complaint against Visa Club Ltd. had been upheld, and explained that the full complaint determination would be forwarded once OISC had consented to this. They also attached a formal letter of apology from Oleksandr Suchkov of Visa Club Ltd. in which he asserted that Ms Ozcelik had never been employed by him, although she had had a “simple admin collection role.” She had dealt with the applicant’s case without his knowledge or permission. She had done so by misrepresentation as she had not been authorised to provide immigration advice. He did not know why the Home Office decision was not communicated to the applicant or why he did not receive his BRP.
30. The applicant’s solicitors contacted the AR team a fourth and final time on 27 January 2025, enclosing the full OISC determination of 3 January 2025. Much of the determination is concerned with assessing Mr Suchkov’s conduct against OISC’s Code of Standards and is of no direct relevance here. What is relevant is the material facts as found by OISC. These included:
i. On 21 June 2021, Visa Club Ltd. submitted the applicant’s extension application to the Home Office. The immigration adviser named on the application was Mr Oleksandr Suchkov and “the sole email address provided on the application form was contact@visaclub.co.uk.”
ii. On 5 October 2021, the Home Office sent an email to contact@visaclub.co.uk informing them that the applicant’s application had been successful and he had been granted leave valid until 5 October 2022.
iii. The applicant “regularly sought updates regarding the status of the application. He asserts that, on each occasion, he was informed that there had been no progress or decision made.”
31. The determination also included Mr Suchkov’s assertions that:
i. “[T]he email contact@visaclub.co.uk was created for admin and marketing purposes for Ms Ozcelik to use as an alternative to the main company’s email address, which is info@visaclub.co.uk. Mr Suchkov claims that he had access to the email address contact@visaclub.co.uk, however he claims he did not monitor it.”
ii. “[H]e noticed Ms. Ozcelik entered an incorrect office address on the application form, which may have led to [the applicant’s] Biometric Residence Permit not being delivered.”
32. OISC’s conclusions included:
“60. The client was not informed of the outcome of his application, leading to significant consequences and damages […]
“63. […] as a result of the organisation’s failure to act in the client’s best interest, the client suffered substantial damages, including financial and emotional harm, and damages to their immigration record in the United Kingdom. […]
“71. The evidence submitted in this case indicates that the Home Office decision email regarding the complainant’s application was sent to the organisation’s email address contact@visaclub.co.uk on 5 October 2021. However, this outcome was never communicated to the client, who only became aware of it in 2024 […]”
The second decision under review: the Administrative Review decision of 2 May 2025
33. On 2 May 2025, the respondent issued her decision maintaining the refusal decision of 23 May 2024. Her reason for doing so was that it was a requirement of the Appendix ECAA: Extension of stay that the applicant not be in breach of the immigration laws and he did not satisfy this requirement.
34. The decision-maker acknowledged: the applicant’s submissions that the caseworker should have requested further information from him; his reliance on Doody and Q v SSHD for the proposition that this was what fairness required; his account of having been “deceived, misled, and misrepresented” by Ms Ozcelik and Visa Club Ltd.; and his assertion that if he had known his leave was due to expire on 05 October 2022, he would have submitted an extension application. The decision-maker declined to respond to any of these points on the grounds that “the administrative review process is limited to reviewing whether the caseworker made any case working errors.”
35. The decision continued:
“Upon review of the caseworker’s actions: the caseworker considered the information you provided for your application including the cover letter from ARB Solicitors […] and the statement […] from Sibel Ozcelik which claimed that Sibel Ozcelik/Visa Club Ltd had not received the decision letter [….]
“However, ECAA 2.2(a) […] states ‘the applicant must not be (a) in breach of immigration laws’.
“The caseworker identified you were in breach of immigration laws as you had overstayed […]
“The caseworker was not required to consider whether there was a good reason beyond your control why you did not make the application in-time under 39E.(1) of Part 1 of the Immigration Rules as you had not made the application with 14 days of your leave expiring. The caseworker also acted in accordance with page 16 of the published guidance for Appendix ECAA Extension of Stay by not arranging to interview as the guidance states that interviews are only to be held when there are genuineness concerns.
“It is appreciated you may not have intended to overstay, and you have provided further information concerning the actions of Sibel Ozcelik/Visa Club Ltd, but this information would not have provided scope for a different outcome as your application would still have failed to meet ECAA 2.2.(a) [..]”
36. The decision-maker also considered the applicant’s submission that the caseworker should have considered exercising her discretion but found that the decision to refuse was “reasonable”. It was asserted that “[t]he caseworker considered exercising discretion and explained in the letter why they chose not to exercise discretion.”
37. Finally, the decision-maker referred to the additional evidence submitted on 14 June 2024, 9 October 2024, 11 January 2025 and 27 January 2025 but declined to consider it on the grounds that it was not eligible for consideration under the terms of Appendix AR.
The applicant’s grounds of claim and the respondent’s defence
38. The applicant raises four grounds of challenge. In an order promulgated on 15 October 2025, the Upper Tribunal granted him permission on Grounds One and Two only. However, the applicant subsequently applied to renew Ground Three and Four, and it was agreed at the hearing before me that I should deal with those grounds in a rolled up hearing.
Ground One: “Unlawful & Irrational Consideration of the A’s Application”
39. The applicant submits that the caseworker acted irrationally both in deciding not to exercise discretion in the applicant’s favour and in finding that he had displayed a clear disregard for the immigration rules and processes, because they either failed to take into account the applicant’s evidence that he had not knowingly overstayed or failed to give adequate reasons for rejecting it.
40. In her summary grounds of defence, the respondent relies on the well-established principle that she does not have to record and deal with every piece of evidence in her decision letters, as reiterated in Zoumbas v SSHD [2013] UKSC 74 at [23]. She says this is dispositive of the first ground. She adds that it was reasonable for the caseworker to conclude that the applicant had received the decision because it had been sent to the email specified within the application and she “did not receive a bounce back or undelivered receipt”. The respondent further faults the applicant for not making any additional enquiries about the status of his application “himself”, and for not ensuring that the delivery address for the BRP was correct. She acknowledges that it may be arguable that the applicant did not knowingly overstay but submits that it was nonetheless reasonable
“to conclude that he had disregarded the Immigration Rules and processes, as he did not make any attempt to directly clarify his permission to be in the UK after an extended period of time, during which he claims he did not know the outcome of his application.”
41. The respondent adds in her detailed grounds of resistance that the decisions were “lawful and within the range of reasonable responses open to the decision-maker based on the information and evidence and available at the time.” The statement that the applicant had “failed to provide substantial evidence” to explain his long period of overstay was a sufficient consideration of the evidence provided. This consisted of an assertion in the covering letter that neither the applicant nor his representative were aware of the decision, and a short statement from Ms Ozcelik to the same effect. This was “evidently incorrect, and the Respondent’s records were sufficient to reveal this.”
42. In her skeleton argument for the hearing before me, the respondent also relied on the assertion in the AR decision that “Upon review of the caseworker’s actions: the caseworker considered the information you provided for your application including the cover letter from ARB Solicitor [sic] […] and the statement […] from Sibel Ozcelik […].” This was said to demonstrate that the evidence had been considered.
43. In the alternative, the respondent submits that even if the decision-maker had not considered the case the applicant had advanced, the outcome would not have been substantially different, because the respondent had clear evidence that the decision had been emailed to Visa Club Ltd..
Ground Two: “Failure to consider whether service via email was rebutted”
44. The applicant submits that the respondent was required to consider whether he had been served with the decision of 5 October 2021. He accepts that under article 8ZA(2)(d) of the Immigration (Leave to Enter and Remain) Order 2000 (“the 2000 Order”), a notice giving leave to enter or remain in the United Kingdom may be “sent electronically to an e-mail address provided for correspondence by the person or the person’s representative.” He points out, however, that article 8ZB(1)(b) allows the presumption that notice of a decision sent by e-mail has been “given to the person affected” to be rebutted.
45. The applicant further submits that it was important for the decision-maker to consider whether the applicant may not have had “the opportunity to acquaint themselves with the content of the decision letter”. He relies by analogy on the “European approach” identified by Lord Steyn at [29]-[30] of Anufrijeva, R (on the application of) v. Secretary of State for the Home Department & Anor [2003] UKHL 36. This is that “a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it.”
46. For these reasons, the failure to consider whether the applicant had rebutted the resumption that he had received notice of the decision was an “omission in the [respondent’s] decision-making.”
47. In her defence, the respondent points out that the applicant’s case is that the decision letter was received by Visa Club Ltd. and/or Ms Ozcelik but that this was not communicated to him. She says that article 8ZB does not permit him to challenge the presumption of receipt of notice for this reason.
48. The respondent further relies on R (Mahmood) v SSHD (effective service – 2000 Order) IJR [2016] UKUT 00057 (IAC) for the proposition that the giving of notice is not the same as an individual having actual knowledge of its contents. All that is required is an “opportunity to know” the contents of a decision, and the applicant had that opportunity when the decision was served on Ms Ozcelik. She further argues that the situation is akin to that in R (Escobar) v SSHD [2024] EWHC 1097 (Admin), in which the applicant had accepted that the respondent’s decision curtailing his leave had been delivered to his email account but had asserted that he had never seen it, perhaps because his estranged wife had deleted it or he had deleted it by mistake. She cites [41] of Escobar, in which Sheldon J distinguished Anufrijeva as a case in which notice was never provided, not where a person “has been given a decision but has not read it”.
49. Alternatively, the respondent submits that if the applicant is seeking to challenge the effectiveness of the service of the decision of 5 October 2021, he was aware of the decision and how it was served on 18 September 2024, and his challenge is significantly out of time.
Ground Three: “Failure to act with Procedural Fairness”
50. The applicant submits that the respondent had a public law duty to put him on notice of the allegation that he was not of good character because he had displayed a clear disregard for immigration laws and processes, and to give him an opportunity to respond. She breached that duty first, by failing to give him notice of the allegation prior to the initial refusal decision and second, by refusing to take into account his evidence rebutting the allegation during the AR process. The applicant relies on R v Secretary of State for the Home Department, Ex p Doody [1993] UKHL 8 and Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 for the general duty to give notice and on Balajigari v SSHD [2019] EWCA Civ 673 and R (Karagul & Ors) v SSHD [2019] for the particular need to put an applicant on notice of any allegation of “reprehensible conduct” before making a decision.
51. In her summary grounds of defence, the respondent argued that it was “not the fault of the respondent” that the applicant did not receive notice of the decision, and that the onus was on the applicant to have made “direct enquiries regarding his immigrations [sic] status, and it was entirely unreasonable to have waited so long before doing so.”
52. In her detailed grounds of defence, the respondent points out that the applicant was already aware when he made the initial application that the respondent considered him an overstayer, because he had been given notice of this when he was served with a Notice of Liability to removal on 7 March 2024. She then submits:
“Secondly, the Secretary of State’s position remains that the Applicant was not liable to removal because of his conduct, or alleged conduct, but instead because of his irrefutable status as an overstayer. This is not a case in which the principles of Balajigari […] apply. Balajigari was a case in which paragraph 332(5) was deployed, such that it was a person’s very presence in the United Kingdom that was deemed to be unconducive to the public good.”
Ground Four: “Appendix AR is an unlawful fetter upon the R[espondent]’s Public Law Duty to act with Procedural Fairness”
53. The applicant submits that the automatic rejection of new evidence in the AR process is a breach of the respondent’s public law duty of procedural fairness, because it prevents applicants from procuring a modification of a decision after it has been taken. The applicant acknowledges that the Upper Tribunal does not have jurisdiction to declare the AR rules ultra vires but nonetheless asks for a declaration that they are an “unlawful self-fetter upon [the respondent’s] public law duty to act in a procedurally fair manner”. In his renewal grounds, the applicant submits that the respondent’s decision rested on a material mistake of fact – that he had knowingly overstayed – and that “[w]here a decision rests on a mistake of fact later shown to be wrong, fairness requires considering the corrective material”. He relies here on British Oxygen Co. v Board of Trade [1971] AC 610 and R (Khan) v SSHD [2018] EWCA Civ 1684.
54. The respondent replies that when considering whether the restrictions on new evidence are an unlawful fetter on the respondent’s discretion, it is necessary to take into account the purpose of the AR process and in particular that it is “not a general mechanism for an application or a second bite at the cherry” [emphasis in original]. It generally takes place on the basis of the evidence before the decision maker, subject only to given exceptions, as mentioned in R (on the application of Ganeshamoorthy) v Secretary of State for the Home Department (Evidential Flexibility; Administrative Review Gateways) [2025].
The hearing before me
55. At the hearing before me, I had a 163-page bundle of case-specific documents and 353-page authorities bundle, both prepared by the applicant, as well as skeleton arguments by both parties.
56. I heard submissions from Mr Saini and Mr Gajjar. I summarise their most helpful and relevant submissions below.
57. In his submissions before me on Ground One, Mr Saini emphasised that the decision-maker had failed to deal with the applicant’s evidence purporting to show that he had not received notice of the October 2021 decision. He submitted that the respondent was required to deal with it, because it was more than a “bare assertion”. There was the letter from Ms Ozcelik, as well as the covering letter, which contained statements from the legal representatives as to their own role in clarifying the applicant’s status in March 2024 and submissions as to how the applicant would have behaved if he had known about the October 2021 decision. The statement that there was “no substantial evidence” to explain the overstay was likely to be a template phrase and should not be taken as an indication that the caseworker had considered the evidence and found it not to be substantial. In the alternative, if they had done so, they had given no reasons for finding it not substantial. The SSHD’s assertion that the decision-maker had dismissed this evidence as not substantial after consulting her own records confirming that the decision had been sent by email and not bounced back was an ex-post facto justification. The SSHD had adduced neither case working notes nor a statement from the decision-maker to show that this had been done.
58. With regard to Ground Two, Mr Saini accepted that the decision of October 2021 had been validly served on the applicant’s representatives but emphasised that article 8ZB of the 2000 Order provided that even in that case “the person affected” by a decision could rebut the presumption that it had been given to them. There was, in addition, a fundamental factual difference between this case and Escobar, because the email had not been delivered to the applicant but to a third party.
59. In his oral submissions on Ground Three, Mr Saini responded to the respondent’s submission that the applicant already knew he was an overstayer when he made the initial application and had already put forward the evidence he had at the time to explain it, such that fairness did not require a further “minded to refuse” procedure. He submitted that the applicant did not know that the respondent might consider that he had knowingly overstayed and would therefore find that he was of bad character. Moreover, knowingly overstaying was a criminal offence under section 24(C1) of the 1971 Act. He had put forward evidence had in order to ask for discretion to be exercised in his favour, not to respond to these more serious allegations. Given the seriousness of the respondent’s findings, a minded to refuse process was required.
60. In his oral submissions on Ground Four, Mr Saini accepted that the applicant could not bring a challenge to the lawfulness of the AR rules in the Upper Tribunal. He submitted that it was nonetheless open to me to make a declaration that those rules were “ultra vires” because they were an unlawful fetter on the respondent’s public law duty of fairness. He asked for a declaration to this effect.
61. With regard to Ground One, Mr Gajjar submitted that the reason for the decision were adequate: the application had been refused because the applicant had overstayed. The decision-maker was not required to comment on the applicant’s claim that he had not knowingly overstayed, because this was a “bare assertion”. This is what was meant by the reference to the evidence not being “substantial.” He repeated that the AR decision was evidence that the original decision-maker had considered all of the applicant’s evidence. If the applicant now had better evidence to show that he had been unaware of the October 2021 decision, it was open to him to make a new application.
62. In his oral submissions, on Ground Two, Mr Gajjar suggested that the applicant was arguing that service is ineffective in the absence of actual knowledge of the contents of a decision, and that this is clearly wrong. There was no meaningful distinction between this case and Escobar, because individual are “stuck with” the actions of their legal representatives.
63. Mr Gajjar initially submitted that the answer to Ground Three was, again, that the applicant could make a new application, now that he had better evidence that he had not knowingly overstayed. He then withdrew that submission, recognising that the possibility of making a new application could not remedy the unfairness of an earlier process. He accepted that the requirements of fairness set out in Balajigari applied to any reprehensible conduct, and not only to deception. He suggested, however, that demonstrating a “clear disregard” for the immigration rules was not reprehensible conduct. It could refer to mere neglect for the rules.
64. With regard to Ground Four, Mr Gajjar relied on Balajigari at [59]- [61] and Ganeshamoorthy to argue that the limitations on the submission of new evidence in the AR process had been accepted.
The legal framework
65. The applicant applied for leave to remain under Appendix ECAA: Extension of Stay. The relevant rules are set out above at [13].
66. As noted above, the decision-maker considered that Paragraph 4 of HC510 was relevant to the assessment of the applicant’s immigration history. This reads:
“In deciding these matters account is to be taken of all the relevant facts; the fact that the applicant satisfies the formal requirements of these rules for stay, or further stay, in the proposed capacity is not conclusive in his favour. It will, for example, be relevant whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain; whether he represents a danger to national security; or whether, if allowed to remain for the period for which he wishes to stay, he might not be returnable to another country.”
The rules governing Administrative Review
67. Prior to April 2015, Turkish businesspeople had an in-country right of appeal against a decision of the respondent to refuse them further leave to remain under the ECAA rules. With the coming into force of relevant provisions of the Immigration Act 2014, they lost that right, as did all migrants seeking to remain in the UK for the purpose of work or studies. See: SSHD v CA (Turkey) [2018] EWCA Civ 2875. Instead, they were granted a right of Administrative Review under Para. AR3.2 (d) of the Immigration Rules.
68. The current version of Appendix Administrative Review stipulates:
“AR 3.3. Where evidence which was not before the original decision maker is submitted with the application for administrative review, the reviewer will only consider that evidence where the eligible decision was:
“(a) a decision under Part 9 on or before 10 November 2025 or Part Suitability of these rules to refuse an application on the grounds of false representations or deception; or
“(b) a decision under Part 9 on or before 10 November 2025 or Part Suitability of these rules, to cancel entry clearance, permission to enter or permission to stay on the grounds of false representations or deception; or
“(c) a decision to refuse an application for entry clearance under Part 9 on or before 10 November or Part Suitability of these rules on the grounds of a previous breach of immigration laws; or
“(d) a decision not to request specified documents under paragraph 245AA of these rules; or
“(e) a failure to follow the evidential flexibility policy published on gov.uk.”
69. When Appendix AR was first introduced in October 2014 (for Tier 4 applications only), Para. AR.2.4 stipulated:
“AR 2.4 The Reviewer will not consider any evidence that was not before the original decision maker except where evidence that was not before the original decision maker is submitted to demonstrate that a case working error as defined in paragraph AR3.4 (e), (g), (h) and (j) has been made.”
70. These case working errors were
“(e) Where the original decision maker has not considered all the evidence that was submitted as evidenced in the eligible decision;”
“(g) Where the Immigration Rules provide for the original decision maker to consider the credibility of the applicant in deciding the application and the original decision maker has reached an unreasonable decision on the credibility of the applicant;”
“(h) Where the original decision maker’s decision to refuse an application on the basis that the supporting documents were not genuine was incorrect;” and
“(j) Where the original decision maker has incorrectly refused an application on the basis that it was made more than 28 days after leave expired”
71. In the Statement of changes to the Immigration Rules: HC693, 16 October 2014 that accompanied the introduction of Appendix AR, there was no explicit explanation of why these types of errors allowed for the submission of new evidence. There was only an explanation for the general prohibition on new evidence: “administrative review is not designed to enable people to correct omissions in their original application for leave to enter or remain.”
72. By way of Statement of changes to the Immigration Rules: HC1025, 26 February 2015, Administrative review was introduced for ECAA applications made on or after 6 April 2015. Appendix AR was also amended so as to restrict the types of case working errors where new evidence could be provided to those defined in paragraph AR2.11 (a), and (b):
“(a) Where the original decision maker’s decision to refuse an application on the basis of paragraph 320(7A) [refusal of entry clearance to leave to enter because of false representations, false documents or failure to disclose material information], 320(7B) [refusal of entry clearance to leave to enter because of previous breaches of the immigration rules] or 322(1A) of these Rules [refusal of leave to remain, variation of leave to enter or remain or curtailment of leave because of false representations, false documents or failure to disclose material information], or cancel leave to enter or remain which is in force under 321A(2) [because of false representations, false documents or failure to disclose material information of these Rules], was incorrect;
“(b) Where the original decision maker’s decision to refuse an application on the basis that the date of application was beyond any time limit in these Rules was incorrect;
73. The Explanatory Memorandum stated that
“The definition of a case working error has been revamped to create a simpler definition that works irrespective of whether the error is in a leave to remain decision, an entry clearance decision or a decision to cancel leave to enter. It is intended that all matters within the former definition remain included in the new definition of a case working error in paragraph AR2.11.” [emphasis added]
74. Thus, although additional evidence was initially permitted to challenge decisions about an applicant’s credibility, when this was narrowed to refusals based on false representations, false documents or failure to disclose material information, there was no reasoned explanation for this. On the contrary, it was suggested that no substantive change had been made.
75. There have been a number of further changes to Appendix AR. In November 2015, the types of case working errors where new evidence was permitted was expanded to include incorrect decisions to “refuse an application of the type specified in paragraph AR3.2(d) of these Rules [an ECAA application] on grounds of deception”. According to Statement of changes to the Immigration Rules: HC535, 29 October 2015:
“A change has been made to provide for additional evidence to be requested in order to demonstrate that the deception did not occur. This brings such applications in line with applications made under the current Immigration Rules in respect of the ability to supply further evidence in relation to a refusal on deception grounds.”
76. Paragraph AR2.11(a) was amended again on 22 March 2024, to replace references to Paragraphs 320-322 of the Rules with references to Paragraphs 9.7.1, 9.7.2, 9.7.3, 9.8.1., and 9.8.2 and on 3 June 2024 to replace those specific references with the phrase “a decision under Part 9 of these rules to refuse an application on the grounds of false representations or deception.” In each case, the change was described in the accompanying Explanatory Memorandum as a technical one and not involving any policy changes.
77. The senior courts have twice found that the restrictions on the introduction of new evidence during the AR process is inadequate to ensure common law fairness in cases where the refusal rests on findings of dishonesty, bad faith or other disreputable conduct: Balajigari at [61]; Karagul at [103](2)], [109]. In the former case, the Court of Appeal commented
“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.”
78. This is arguably mistaken, because since April 2015, AR applicants have been allowed to submit further evidence to rebut a finding of dishonesty. However, the point of principle remains: if an applicant had been unaware of an allegation of reprehensible conduct before a decision was made, the AR process could not correct that procedural unfairness.
79. In Karagul, the Mr Justice Saini summarised a number of general principles that he considered “well-established”. These included that
“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.”: [103(2)].
80. At [109], he repeated that “a bar on new evidence being put before the reviewer on AR to rebut the allegation of a lack of genuine intention is also unfair at common law.”
81. In the recent reported decision Ganeshamoorthy, the Upper Tribunal considered the current exceptions to the exclusion of new evidence during the AR process. The focus in that case was on exceptions related to evidential flexibility, which are now found in Para. AR3.3(d) and (e) of Appendix AR. In setting out the context, Upper Tribunal briefly described the other exceptions in the following terms:
“101. Administrative review generally takes place on the basis of the evidence which was before the original decision maker. That basic rule is clear from paragraph AR3.3.
“102. The basic rule is subject to five exceptions. The first three, in paragraphs AR3.3(a)-(c), relate to situations in which the applicant is suspected of some sort of wrongdoing which has resulted in refusal under Part 9 of the Immigration Rules. Where the eligible decision was based wholly or partly on such a ground of refusal, additional evidence is admissible at Administrative Review, whether or not the eligible decision was incorrect. The making of an allegation of deception, for example, suffices without more to open the gateway. Whilst I heard no argument on the point, I suspect that the rationale behind that approach is an attempt to comply with the common law duty of fairness considered in Balajigari v SSHD […] and other cases. Where, for example, an allegation of deception is made against a person in the original decision, they have an unfettered right on Administrative Review to submit further evidence in response to the allegation. “
82. This is incorrect. The exception for allegations of deception existed within Appendix AR prior to Balajigari, and that exception has not yet been expanded to include other types “wrongdoing”.
Service of notice
83. It is well-established that notice of a decision is not effective unless the person affected by it has had an opportunity to know its contents. It is not necessary, however, that they actually know the contents. What matters is the opportunity. See, e.g.: R (Alan & Rana) v SSHD [2020] EWCA Civ 1527 at [13], [24]. Thus, a person who receives a decision by post but does not open the envelope or receives an email but deletes it without reading it has been validly served. It is open to a person to show that notices that were sent to them were not actually received – perhaps because they were intercepted by a third party – but the burden of proving non-receipt “will not easily be discharged. Ibid. at [29]-[31]; R (Escobar) v SSHD [2024] EWHC 1097 (Admin) at [31], [41]-[42]; R (Mahmood) v SSHD (effective service – 2000 Order) IJR [2016] UKUT 00057 (IAC) at [61].
Fairness
84. The question of whether there has been procedural fairness is an objective one, and is for me to decide. Citizens UK, R (On the Application Of) v SSHD [2018] EWCA Civ 1812 at [75] and [81].
85. As reiterated by Lord Sumption Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 at [29]
“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.”
See also; Anufrijeva at [30] (citing R v Commission for Racial Equality, Ex p Hillingdon London Borough Council [1982] AC 779, 787). When legislation is silent about the procedure to be followed, the requirements of procedural fairness “will readily be implied” by the courts. Even where a statute makes some provision for a decision-making procedure to be followed, this does not override the duty of fairness where it would otherwise arise. Courts will “readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness”. Bank Mellat at [35] (per Lord Sumption, citing Lord Bridge of Harwich in Lloyd v McMahon [1987] AC 625, 702-70). In this way, “the justice of the common law will supply the omission of the legislature.” Ibid. (citing Byles J in Cooper v Wandsworth Board of Works 14 CBNS 180, 194). See also Balajigari at [45] (citing Citizens UK at [68]).
86. There is, however, no fixed way in which the duty of fairness must be discharged in all cases. Lord Mustill’s summary of established principles in R v Secretary of State for the Home Department, Ex p Doody [1993] UKHL 8 has become the accepted starting point:
“(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.
“(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.
“(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.
“(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.
“(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.” [internal paragraph breaks added]
See also, e.g.: Bank Mellat at [30];
87. The higher courts have put particular emphasis on the duty of fairness where a decision-maker disbelieves a person’s account (Balajigari at [45], citing Laws J in R v Hackney London Borough Council, Ex p Decordova (1995) 27HLR 108, 113),where there is an allegation of reprehensible conduct or where the consequences of the decision are particularly serious: Balajigari at [51], [53].
88. Fairness normally requires that there be a possibility of making representations before the decision has been reached, by which time the executive’s mind may have become “unduly fixed”: Balajigari at [60]. Providing for representations to be made prior to the decision also promotes good administration because it ensures that the decision-maker receives all relevant information before the decision is made: Bank Mellat at [35]; Citizens UK at [82]; Karagul at [108].
89. In Balajigari, the Court of Appeal concluded at [55] 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.”
90. It is essential to recognise that the reasoning in Balajigari was not confined to allegations of fraud or dishonesty. Only one of the four applicants had been refused under the general ground of refusal related to dishonesty, which was found at Para. 322(2) of the Immigration Rules at the time. All of the applicants had been refused Para. 322(5) on the grounds that their conduct, character or associations made it undesirable to permit them to remain in the UK ([7]), and it was this ground that the Court of Appeal was considering: [35]-[37]. The applicants had been refused Indefinite Leave to Remain (ILR) because the respondent had identified significant discrepancies between the income they had reported to the Home Office in support of previous applications for leave to remain and the income they had reported to HMRC for the same or a similar period. Dishonesty was relevant because only dishonest discrepancies would justify a finding that their conduct had been “sufficiently reprehensible” that it was undesirable for them to remain in the UK. Discrepancies caused by “mere carelessness or ignorance or poor advice” could not meet “the necessary threshold”: [35]. See also Ibid. at [51] (describing an allegation of dishonesty as “a particularly serious allegation going to a person’s character”) and [55] (referring to refusals under Para. 322(5) for “dishonesty, or other reprehensible conduct”).
91. In Karagul, the Court of Appeal explicitly rejected the respondent’s argument that the finding of unfairness in Balajigari was confined to its facts, and applied them to ECAA decisions in which the respondent was not satisfied that the applicants had a genuine intention to establish themselves in business as they claimed. This is because the finding that an application is not genuine is, essentially, one that it was made in bad faith. An interview or a “minded to refuse” process may be required: Karagul at [106](x) and (xii).
“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 an explain himself. “: [107]
Applying the law to the facts
Ground One
92. It is important to recognise that Ground One challenges the lawfulness of the decision of 23 May 2024, on the basis of the evidence before the caseworker at the time. It is irrelevant that at the time he made the application, the applicant believed Ms Ozcelik had not received notice of the October 2021 decision, and that he later learned that this was wrong. The question is whether the respondent was required to consider the evidence that he did put forward and, having considered it, to give reasons for rejecting beyond the conclusion that it was not “substantial”.
93. It is also important to recognise that, contrary to what is suggested in the AR decision and to some of Mr Gajjar’s submissions, the refusal decision was not based simply on the fact that the applicant was an overstayer. The caseworker directed themselves that “an applicant may not automatically be refused as an overstayer on this basis alone (discretion can be applied for incidental overstaying)”. They then proceeded to consider exercising their discretion to overlook the overstaying, in line with Para. 4 of HC510. Even putting HC510 aside, the applicant had made a specific request for discretion to be exercised in his favour with regard to his overstaying, and the respondent was therefore required to consider doing so. The respondent has not suggested otherwise. She was also required to “deal with any material” the applicant had relied on in support of his request: R (Behary & Anor) v SSHD [2016] EWCA Civ 702 at [39].
94. I consider it clear from the plain language of the decision that when considering whether to exercise their discretion, the caseworker made a finding not only that the applicant had provided no good explanation for overstaying but also that his overstaying reflected a deliberate disregard for immigration rules and processes and that he was therefore of bad character. It was primarily for this reason that it was not appropriate to exercise discretion in his favour. No other factors relevant to the exercise of discretion were identified, except for the related issue of the length of the overstay. Nor has it ever been suggested that the application fell for refusal for any other reason.
95. Because the caseworker’s exercise of discretion turned entirely on the applicant’s overstaying, they were required to consider the evidence put forward by the applicant that was relevant to this issue. The respondent’s reliance on the general principle that decision-makers are not required to comment on all of the evidence and submissions made is misplaced. This was the sole basis for the applicant’s request that discretion be exercised in his favour, and the sole reason that the decision-maker refused that request. It was the critical issue, and therefore an explanation of how the caseworker reached the decision they did was required. See: MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) and Joseph (permission to appeal requirements) [2022] UKUT 00218 (IAC) at [43] (citing English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605 at [19]).
96. I cannot accept Mr Gajjar’s submission that the statement that the evidence was not “substantial” is a sufficiently clear reason for the finding that the applicant had showed a clear disregard for the immigration laws and was therefore of bad character. The applicant had submitted a statement from his previous legal representative confirming that she had not received the decision. It may be that the caseworker did not believe this statement, because they checked internal Home Office records as the respondent later claimed. But if this was the reason for rejecting the former legal representative’s statement, the appropriate adjective would have been “not credible”, and even then it would have been incumbent on the caseworker to explain why it was not credible. Nor do I accept the alternative submission that saying that the evidence was not “substantial” is the same as saying that the applicant had done nothing more than make a bare assertion, and that therefore no further reasons were required. The evidence and submissions may have been limited, but they went beyond a bare assertion. There was not just Ms Ozcelik’s statement but also, as Mr Saini stressed, statements in the covering letter from the ARB Solicitors explaining their own ongoing efforts to clarify, first, why their client was considered an overstayer and second, why the October 2021 decision had not reached him.
97. Finally, I am not persuaded that the statement in the AR decision that “the caseworker considered the information you provided for your application including the cover letter from ARB Solicitor […] and the statement […] from Sibel Ozcelik” assists the respondent here. As is apparent from the excerpt from the AR decision set out at [35] above, the AR decision does not say that this was considered by the caseworker when deciding whether to exercise their discretion. The AR decision says that it was considered but dismissed because he was nonetheless an overstayer and could not meet Para. ECAA 2.2(a).
98. I therefore conclude that the caseworker either did not consider Ms Ozcelik’s letter and the various relevant submissions in the covering letter when deciding not to exercise discretion in the applicant’s favour because he had deliberately overstayed and was of bad character or, if they did consider them, they gave inadequate reasons for rejecting them.
99. Mr Gajjar did not pursue the respondent’s alternative justification for the bad character finding, which was that the onus had been on the applicant to chase the Home Office directly, in spite of being legally represented. This is transparently a new reason put forward for the first time in this litigation and therefore cannot justify the challenged decision.
100. Ground One is therefore made out.
Ground Two
101. As framed in the grounds, Ground Two is also a challenge to the rationality of the original caseworker’s decision-making process: it was an “omission in the [respondent’s] decision-making process” that the caseworker did not consider whether the applicant had been validly served with the October 2021 decision. Ground Two is not a challenge to the actual validity of service. For this reason, it is not out of time.
102. The applicant’s difficulty here is that nowhere in their covering letter to the March 2024 application did ARB Solicitors suggest that the October 2021 decision had not been validly served. Admittedly, some of the submissions in the letter could be read as suggesting that the applicant still had valid leave, such as the assertions that the applicant met all of the requirements of the rules. However, when the letter is read as a whole, it is clear that it is accepted that the applicant was, in fact, an overstayer. The solicitors say that because “neither Applicant nor Sibel Celik were aware of” the decision, “the Applicant did not have the opportunity to submit any further application or take any necessary actions.” They do not say that because he was not aware of the decision, the applicant still had valid leave under section 3C of the 1971 Act and was therefore not an overstayer at all.
103. I do not consider it irrational, unfair or otherwise unlawful for the caseworker not to have considered an argument that was not squarely raised by the applicant.
104. Ground Two is therefore not made out.
Ground Three
105. Ground Three challenges the fairness of the respondent’s decision-making process overall, both at the initial decision stage and on AR.
106. As a preliminary matter, I find that the refusal decision did include a finding that the applicant had engaged in reprehensible conduct. I do not accept Mr Gajjar’s submission that a finding that someone had shown a “clear disregard” for immigration laws and processes could mean no more that they had been neglectful. That is inconsistent with the plain meaning of “clear disregard”. Nor do I accept that showing a clear disregard for immigration laws and processes and deliberately overstaying for 595 days is not reprehensible conduct. Knowingly overstaying is a criminal offence, and the respondent views it as sufficiently reprehensible conduct that it disqualifies a person from being naturalised as a British citizen.
107. Mr Gajjar submitted that the respondent was not required to engage in a “minded to refuse” process before the initial refusal, because the applicant already knew she considered him to be an overstayer and he had already set out his evidence attempting to explain this. What he did not know, however, was that the respondent considered that his overstaying had been deliberate and was evidence of a clear disregard for the immigration rules and therefore of his bad character.
108. Some of the leading caselaw setting out basic principles of procedural fairness has involved somewhat similar situations, in which people affected by executive decisions know what facts the executive will be considering, but not what the executive makes of those facts. I consider that there is a meaningful similarity to the argument made by the Secretary of State in Doody at 563:
“that since the prisoner already knows all the circumstances of his offence, in the light of which the trial judge made his recommendation on the penal element, he can deduce without the need for any more information both the factual basis of the Secretary of State's decision, and the intellectual reasons why the penal element was fixed at a particular term of years.”
109. Lord Mustill rejected that argument in part because, “The prisoner does indeed know what primary materials were before the court, but he does not know what the judge and the Home Secretary made of them”. Likewise, in Balajigari the applicants presumably knew – or reasonably should have known – what income figures they had reported to the respondent and to HMRC over the previous five years. Yet the Court of Appeal still found that it was unfair that the respondent had not specifically put to them that those figures showed that they had engaged in dishonesty.
110. I therefore consider that it was unfair for the respondent not to put her concerns about the “clear disregard” for the law and bad character to him before refusing his application. At the very least, the applicant could have put forward a witness statement and the WhatsApp messages he had exchanged with Ms Ozcelik as further evidence that he did not know of the October 2021 decision.
111. This initial unfairness was compounded by the unfairness of the AR process. The respondent had found that the applicant had engaged in reprehensible conduct, but in the AR process, she closed her eyes to a considerable body of evidence undermining that finding, including the results of an independent, expert investigation into the conduct of his legal representatives. For the reasons set out in Balajigari and Karagul, this was unfair.
112. In these proceedings, the respondent has not sought to justify the fairness of excluding evidence rebutting a finding of reprehensible conduct from the AR process. As noted above, Mr Gajjar submitted that the conduct was not reprehensible, a submission I have rejected.
113. I therefore conclude that the decision-making process in this case was unfair, both because the applicant was not given an opportunity to respond to the allegation that he had shown a clear disregard for the law before the decision was made, and because the respondent subsequently closed her eyes to the evidence that strongly indicated that this finding was wrong.
114. Ground Three is made out.
Ground Four
115. The arguments before me about Ground Four overlapped substantially with those about the aspects of Ground Three that challenged the fairness of the AR process. For the reasons given directly above, I consider that the AR process was unfair in this case and that the Court of Appeal and the High Court have already found that the process is unfair in cases in which the respondent has made a finding that a person has engaged in reprehensible conduct.
116. In response to this ground, the respondent points to the general purpose of the AR process: it is, in her words, “not a general mechanism for an application [sic] or a second bite at the cherry”. This is a relevant consideration. When deciding whether to imply certain procedures into a statutory scheme, it may be necessary to consider whether those procedures would frustrate the scheme’s purpose or “cut across its practical operation”: Bank Mellat at [37]-[38] of Lord Sumption’s judgement. However, since the introduction of the AR process, applicants have been allowed to respond to findings that they are either not credible (in the first version of the rules) or have engaged in some form of deception (since April 2015). The submission of new evidence to rebut a finding of some types of wrongdoing has thus never been considered incompatible with the AR process. Nor has the respondent identified any reason of principle or practicality for allowing applicants to rebut a finding of deception but not of any other type of wrongdoing.
117. I am not persuaded, however, that I have the jurisdiction to make a declaration that the AR rules are ultra vires or otherwise unlawful. Such an application should be made to the High Court, as was done in Karagul and (unsuccessfully) in CA (Turkey).
118. For this reason, Ground Four is not made out.
Conclusion
119. I allow the Applicant’s claim for judicial review on Grounds One and Three. The Respondent’s decisions of 23 May 2024 and 2 May 2025 are quashed.
120. I invite the parties to agree an order in appropriate terms.
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