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Upper Tribunal (Immigration and Asylum Chamber)
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Cite as:  Imm AR 383,  UKUT 395 (IAC)
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(Immigration and Asylum Chamber)
Ejiogu ( Cart cases)  UKUT 395 (IAC)
THE IMMIGRATION ACTS
Heard at Field House
Decisions & Reasons sent out on
On 23 October 2019
THE HONOURABLE MR JUSTICE LANE, PRESIDENT
MR C. M. G. OCKELTON, VICE PRESIDENT
IFEANYI DAMIAN EJIOGU
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr J Gajjar, instructed directly.
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer.
DECISION AND REASONS
1. The appellant, a national of Nigeria, appeals to this Tribunal against the decision of Judge Shore in the First-tier Tribunal, dismissing his appeal against the decision of the Secretary of State on 10 May 2016 refusing him indefinite leave to remain. The letter of refusal sets out the reasons for the decision, based on discrepancies between the income declared for tax purposes, and much higher levels of income claimed for immigration purposes, in two separate years.
2. The appellant was admitted to the United Kingdom as a student in February 2006, and had successive periods of student, and post-study, leave, due to expire on 3 March 2012. On 1 April 2011 he applied for leave to remain as a Tier 1 general migrant. That application required him to show that he had income at a certain level. He claimed that he had income of £56,150.90, including self-employed earnings of £40,289.00, in the period from 7 May 2010 to 23 March 2011 (which fell wholly within the 2010-11 tax year). His application was successful, and he was granted leave from 20 May 2011 to 20 May 2013.
3. On 17 May 2013, just before the expiry of that leave, he applied for its extension. He again had to show income at a certain level. He claimed that in the period 1 May 2012 to 30 April 2013 (which fell within the 2012-13 tax year except for the last 25 days) his income was £57,912.80, consisting of employed earnings of £24,017.80 and self-employed earnings of £33,895.00. The application was successful, and he was granted leave from 2 June 2013 to 2 June 2016.
4. On 10 May 2016 he applied for indefinite leave to remain on the basis of ten years' lawful residence in the United Kingdom. Investigations were made with Her Majesty's Revenue and Customs (HMRC). Those investigations revealed that in the 2010-11 tax year the appellant had declared an income of £14,250.00 from all sources for tax purposes, including self-employed earnings of £7,258.00. In the 2012-3 tax year he declared a total income of £26,577.00, including self-employed earnings of £3,199.00. In the 2013-14 tax year he declared a total income of £23,970.00, including no income from self-employment.
5. We interject here that it can be seen that the discrepancy in the 2010-11 tax year is plain from the figures as they stand. Because the period of declared earnings in the 2013 application spanned two tax years the position is not so clear, and in particular the income from employment may have been correct. But figures for the income from self-employment over the two tax years show that only a total of £3,199.00 was declared to HMRC for the two years, whereas over ten times that amount was claimed for immigration purposes for a period that was in total half the period covered by those two tax years.
6. The 2016 application was refused on the basis of paragraph 322(5) of the Statement of Changes in Immigration Rules, HC 395 (as amended), which provides that leave "should normally be refused" on the ground of:
"The undesirability of permitting the person concerned to enter or remain in the United Kingdom in the light of his conduct (including [criminal convictions]), character or associations or the fact that he represents a threat to national security".
7. The relevant part of the letter of refusal, after setting out the figures as above, continued as follows:
"On review, it is clear that HMRC records of your self-employed income for the tax years [sic] ending April 2011 differ significantly to [sic] the income you have declared to UKVI [the relevant agency of the Secretary of State] in the application dated 01 April 2011.
You have completed a questionnaire in relation to your self-employment in the UK and have not raised any concerns in relation to your tax record in the United Kingdom.
You have also confirmed that you have used accountants 'Bajwen & Co' to assist you in referring your self-assessment tax returns.
It is not clear whether you have actually earned the self-employed income you declared to UKVI, and not declared this income to HMRC, or whether this income was only created in order to obtain your Tier 1(General) visas[sic]. However, your application of 10 May 2016 is to be refused under general Grounds paragraph 322(5) of the Immigration Rules as your character and conduct in misleading government departments in relation to the previous income you have earned would lead to the undesirability of permitting you to remain in the United Kingdom.
It is acknowledged that Paragraph 322(5) of the Immigration Rules is not a mandatory refusal, however the evidence submitted does not satisfactorily demonstrate that the failure to declare to HMRC at the time any of the self-employed earnings declared on your previous application for leave to remain in the United Kingdom as a Tier 1 (General) Migrant was a genuine error. It is noted that there would have been a clear benefit to yourself either by failing to declare your full earnings to HMRC with respect to reducing your tax liability or by falsely representing your earnings to UK Visas & Immigration to enable you to meet the points required to obtain leave to remain in the United Kingdom as a Tier 1 (General) Migrant.
It is also noted that you have supplied evidence to support that you have since declared these claimed self-employed earnings to HMRC. The fact that you have retrospectively declared these claimed earnings to HMRC is not sufficient to satisfy the Secretary of State that you have not previously been deceitful or dishonest in your dealings with HMRC and/or UK Visas & Immigration."
8. Leave was therefore refused under the provisions relating to long residence, by reference to paragraph 322(5). The decision-maker went on to consider the parts of the Rules concerned with article 8 of the ECHR. The appellant did not meet the requirements of the Rules by virtue of his relationship with his partner or with their child; his own claim based on private life was refused by reference to paragraph 322(5). The decision-maker then considered whether there were "exceptional circumstances" outside the factors covered by the Rules and decided that the evidence did not justify a grant of leave.
9. The appellant appealed. His grounds of appeal, prepared by solicitors, assert that he had made an application earlier in 2016 and had been told that he would need to submit his self-assessment tax forms for the relevant years. Asking his accountant for them he was promptly told that "there had been some errors ... and that this must be amended". He thereupon withdrew the application to allow time for the amendment. By the time he re-applied he had, through new accountants, made the amendment. He had never intended to deceive and was a victim of professional negligence. It was "grossly unfair" to refuse his application under paragraph 322(5). In any event the decision was disproportionate for failure to take properly into account his rights under article 8.
10. B efore Judge Shore the appellant was represented by counsel, instructed apparently by a firm of solicitors different from those who had prepared the grounds of appeal; but the matters raised at the hearing were fully in line with the grounds. The appellant gave oral evidence. He confirmed that he has an MSc in IT security. He said he had relied on his accountants, Bajwen & Co, and did not himself know much about UK tax law, but he said he had "probably" himself reviewed the figures on the documents the accountants had prepared for him. He could not explain why he had not noticed the large error in the 2011 return. There was evidence of his private life, including some letters from church members who regarded him as honest, and limited evidence of his having engaged in voluntary community work. There was no evidence from Bajwen & Co, nor any evidence that any accusation of negligence had been put to them, but there was a witness statement from another client of Bajwen & Co, who said the firm had failed to meet professional standards with his accounts for 2011, which he discovered in 2012; this was about the time that he had met the appellant, but he had not told him then of his experience with Bajwen & Co.
11. Judge Shore considered the evidence and the submissions made. He did not regard the appellant as a credible witness on the key elements of the case. In particular,"he must be able to understand numbers that are produced for him [and it is] implausible that a person educated to the level that the appellant attained would not notice that his tax return contained an income figure of approximately £40,000 less than he had represented his income to be to UKVI". It was also implausible that, if the position was as the appellant claimed, he had not sought any redress from Bajwen & Co for their alleged failings. Judge Shore concluded that the "documents", including presumably the letter from the other client of the accountants, were not to be relied upon. He rejected the submission that the appellant would have "no motive" to make a false tax return, because "he would have avoided a great deal of tax and National Insurance".
12. Judge Shore concluded that the appellant was "culpable" in his tax returns, and, after citing R v SSHD ex parte Khawaja  UKHL 8 and R (Giri) v SSHD  EWCA Civ 784, that the Secretary of State was entitled to take the dishonesty of the appellant into account in refusing the application. The appeal therefore failed in respect of that part of the claim. Looking then at article 8 within the Rules, Judge Shore noted that there are not "very significant obstacles" to the appellant's return to Nigeria.
13. Outside the Rules, the judge balanced the aspects of the appellant's private and family life of which he had evidence against the public interest, giving substantial weight to the public interest in the denial based on false tax returns and treating the best interests of the appellant's children as primary. He concluded that the decision would not cause the United Kingdom to be in breach of its obligations under the ECHR. So he dismissed the appeal. His decision was sent out on 5 March 2018.
14. The appellant then sought permission to appeal. Grounds drafted by counsel (different from counsel who had represented him at the hearing) were submitted to the First-tier Tribunal. They asserted error as follows:
(i) Failing to take into account Home Office Guidance [not apparently relied on at the hearing] indicating that a conviction was not necessary for paragraph 322(5) to apply, and that the question was whether "there is reliable evidence to support a decision that the person's behaviour calls into question their ...conduct ...to the extent that it is undesirable to allow them to ... remain in the UK". This is linked with an assertion that as the appellant had made the amendment to his return before the present application, it might be that paragraph 322(5) did not apply at all.
(ii) Failing to determine for himself the exercise of the discretion under paragraph 322(5). [This appears to be a reference to a ground of appeal not available since the coming into force of the amendments in appeal rights set out in the Immigration Act 2014.]
(iii) Not appreciating that there was now, since the hearing, a letter from Bajwen & Co saying that they were at fault and citing E and R v SSHD  EWCA 49, but not explaining how the absence of such material previously was not attributable to the appellant.
(iv) Failing to appreciate that the standards of accountants cannot be expected to be as high as those of solicitors and failing to give any reason for the conclusion that the appellant lacked credibility.
(v) Wrong application of the principle in Tanveer Ahmed  UKIAT 00439 on the basis that the dicta there apply only to overseas documents [the implication appears to be that the judge was obliged to take an unattested letter derived from within the United Kingdom as proving what it asserted].
(vi) Failure on the facts to balance the interests of the appellant against the public interest
15. Permission to appeal was refused. The application was renewed to the Upper Tribunal. The grounds, drafted by a third counsel, did not save in one respect rely on the grounds put to the First-tier Tribunal, but instead asserted as follows:
(i) The Secretary of State was not entitled to rely on paragraph 322(5). This ground relied on an unreported decision of a Deputy Upper Tribunal Judge, Judge D E Taylor, who said in her judgment in Kadian v SSHD (HU/11723/2016), sent out on 1 May 2018, in relation to an appellant in similar circumstances, whose explanations had been rejected by the First-tier Tribunal, that "not declaring all relevant income, whilst highly regrettable, cannot properly be described as conduct such as that set out in the policy guidance. ... It cannot properly be said that his failure to disclose calls into question his character conduct and [sic] associations". [In view of what was said subsequently elsewhere, we have examined the text of this ground with care. There is no accompanying text dealing with the citation of this unreported decision. The decision is simply referred to, set out at length in the grounds, and annexed to them; and the ground concludes with a submission that 'thus' failure to take the policy into account was an error of law.]
(ii) In the light again of Kadian, the judge had failed to consider whether the respondent's reliance on paragraph 322(5) was merited when undertaking the balance of public interest against the appellant's circumstances, and had in general failed to take all relevant circumstances into account.
(iii) It was unfair to ignore the new letter from the accountants. There was an [unidentified] reason why it was not available earlier, and if its absence was to be a matter of importance, it should now be taken into account.
16. Permission was refused by UTJ Keki ć . She said that she did not take the unreported case into account as "there has been no application to adduce it". She rejected the other grounds, because (a) the judge had given clear reasons for his decision on the appellant's honesty and his conclusion on the balancing exercise; (b) "the argument now made about the inadmissibility of 322(5) and the respondent's policy was not one which was made before the judge"; (c) the letter from the accountant was not before the judge. There was therefore no arguable error of law in the judge's decision. Judge Keki ć's decision was made on 22 June 2018.
17. The history of this case immediately thereafter is not entirely easy to understand, particularly in view of the assertions of fact made to us at the hearing by Mr Gajjar, the fourth member of the bar to represent the appellant in this appeal. There was an application for permission for Judicial Review of Judge Keki ć's decision on a Cart ( R (Cart) v The Upper Tribunal  UKSC 28) basis. The application, filed on 3 August 2018, was made by Mr Gajjar, directly instructed, and the grounds were drafted by him. They assert as follows:
(i) Judge Keki ć was wrong to say what she did about paragraph 322(5) because, as the judge recorded, the appellant's case was put on the basis that "paragraph 322(5) was not viable in this case because the allegations of deception or dishonesty in an old application cannot be taken into account in a new application".
(ii) Judge Keki ć was wrong to refuse to take the unreported case into account on the ground that there had been no application to adduce it, because it was "more than arguable that the requirements for an application had been complied with"; alternatively that given that this was merely an application for permission a "reasonable decision maker" would have granted permission [sic, not "considered whether to grant permission"] with a requirement to remedy any defect; in any event "it was implied from the grounds that the principle cannot be derived from other case law".
(iii) There had been a general failure to take into account the positive factors in the appellant's case; reference was specifically made to the decision of Foskett J in R (Ngouh) v SSHD in which, on a judicial review of the Secretary of State's decision [not an appeal to the Tribunal on grounds limited by statute, though that is not made clear in the grounds] the judge had made it clear that there was a balancing exercise involved in making the discretionary decision under paragraph 322(5).
18. The documents to which we have already referred were included in the bundle supporting the Judicial review application. There were also copies of two other documents. One was the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and of the Upper Tribunal in its then current emanation (of 13 December 2014). Part 11 of that Direction reads, so far as material, as follows:
"11. Citation of unreported determinations
11.1.A determination of the Tribunal which has not been reported may not be cited in proceedings before the Tribunal unless:
(a) the person who is or was the appellant before the First-tier Tribunal, or a member of that person's family, was a party to the proceedings in which the previous determination was issued; or
(b) the Tribunal gives permission.
11.2. An application for permission to cite a determination which has not been reported must:
(a) include a full transcript of the determination;
(b) identify the proposition for which the determination is to be cited; and
(c) certify that the proposition is not to be found in any reported determination of the Tribunal, the IAT or the AIT and had not been superseded by the decision of a higher authority.
11.3. Permission under paragraph 11.1 will be given only where the Tribunal considers that it would be materially assisted by citation of the determination, as distinct from the adoption in argument of the reasoning to be found in the determination. Such instances are likely to be rare; in particular, in the case of determinations which were unreportable (see Practice Statement 11 (reporting of determinations)). It should be emphasised that the Tribunal will not exclude good arguments from consideration, but it will be rare for such an argument to be capable of being made only by reference to an unreported determination."
19. The other document was the decision of Martin Spencer J in a case on Judicial Review in the Upper Tribunal, R (Shahbaz Khan) v SSHD, JR/3097/2017. We need to say something about this decision, but we start by pointing out that as a decision on Judicial Review it carried, on publication, the status of a reported decision: see the Chamber's Guidance Note 2011 No 2, appendix, paragraph 2(b) (and cf ibid paragraph 4). The decision itself was sent in draft to the parties, including Mr Gajjar (who represented the applicant) in March 2018, and subsequently finalised; it was published on UTIAC's website apparently in July 2018. It was given italic keywords, a headnote, and a neutral citation number, on 16 November 2018.
20. Martin Spencer J's decision is a full reasoned judgment. It sets out a number of propositions by way of guidance, summarised in paragraph , several of which are relevant to the arguments mounted in this appeal. In particular he specifically held that where there has been a significant difference between the income claimed in a previous application for leave and the income declared for tax purposes, the Secretary of State is entitled to draw an inference that the applicant has been deceitful or dishonest and to apply paragraph 322(5), and "I would expect the Secretary of State to draw that inference where there is no plausible explanation for the discrepancy"; and that simply blaming an accountant will not exonerate the applicant, but will raise further questions which may need to be resolved by reference to disclosed correspondence between the applicant and his accountant, or specific explanations about why the applicant did not appreciate the accountant's error.
21. On consideration of the application for Judicial Review on the papers, HHJ Mckenna directed the Secretary of State to provide an Acknowledgment of Service. It was filed on 9 October. It objects to the applicant's reliance on Kadian, citing seventeen decisions (including Shahbaz Khan) to the contrary effect, all substantive decisions on Judicial Review claims (so all having the status of reported decisions) and including decisions by at least six different High Court judges. It was also argued that the second appeal criteria, required for a successful Cart application, were not met.
22. Permission was granted in the High Court. The decision made no reference to the second appeal criteria, but on the substantive grounds observed as follows:
"The UTIAC Judge arguably erred in failing to consider the authorities on the scope of paragraph 322(5) of the Immigration Rules, including the unreported UTIAC decision, Kadian HU/11723/2016. It is arguable that the unreported decisions procedure was complied with, including attaching a copy of the Kadian decision to the application for permission to appeal. The Secretary of State submits that Kadian was wrongly decided, and refers to ample authority in support. However, this point should have been addressed by UTIAC when considering permission."
23. Following the usual procedure in cases of this type, no party having sought a hearing, the decision of Judge Keki ć was on 12 December quashed by order of a Master, leaving outstanding the original application to the Upper Tribunal for permission to appeal, on the grounds summarised above at paragraph 22.
24. The appellant then took it upon himself to submit, through Mr Gajjar, what he called "Supplementary Grounds of Appeal", dated 8 January 2019. They include an application to amend the original grounds based only on an assertion that it would be in the interests of justice for "these additional factors to be considered", but in the final paragraph of the document there is a submission that "this case is suitable for the grant of permission to appeal to Upper Tribunal notwithstanding the recently reporting [sic] of Spencer J's judgement in Khan which permits the use of paragraph 322(5)".
25. Permission to appeal was granted on 22 January 2019, expressly in the light of the decision of the High Court. The grant of permission did not make any decision on the application to amend the grounds. The appeal was listed to be heard by the Tribunal on 23 October. The appellant sought an adjournment on the ground that Mr Gajjar was "unavailable" on that day. The adjournment was refused. Mr Gajjar appeared before us on 23 October. His first task was to deal with the application to amend the grounds, and, in particular, to explain why the grounds upon which he now sought to rely could not have been advanced within the time limited for the application to the Upper Tribunal, which expired in the early summer of 2018.
26. Mr Gajjar's explanation was that he had been content to rely on the grounds considered by Judge Keki ć and in essence relying on the proposition, derived from Kadian, that paragraph 322(5) was inapplicable in the present circumstances, until the decision in Khan was, as he put it, "reported" in November 2018. He had then acted with what he thought of as promptness in drafting new grounds to cover the fact that, as he now appreciated, he could not rely on that proposition. He argued that Judge Shore had "failed to appreciate the discretionary nature" of paragraph 322(5), although, as became apparent, he was unable to say what remedy was available within the existing appeals structure; that Judge Shore had failed to give proper or adequate reasons for his decision to give little weight to the document from the other client of Bajwen & Co; that Judge Shore had failed to take into account the facts stated in that document, or the accounts submitted that would show that the appellant really had earned the income he had failed to declare (Mr Gajjar did not explain how the latter point could assist the appellant); and that the judge's conclusion that it was implausible that the appellant, with his level of education, would have made such understatements mistakenly because there was one calculation that might have been plausible was irrational, and that the judge could not have been certain that the appellant's explanation was implausible.
27. Mr Kotas, for the Secretary of State, opposed Mr Gajjar's application. We refused it at the hearing, noting that the failure to comply with the rules was considerable, the delay being over six months after the end of a time limit of 14 days; that there was no adequate explanation for the delay, that the grounds now advanced were not obviously of great merit, and that (bearing in mind the interests of both parties) we were not persuaded that it was in the interests of justice to enlarge the appeal to include these grounds.
28. Having had a fuller opportunity to consider the matter in the light of the papers, we add this. We find it extremely difficult to understand fully the position Mr Gajjar was taking. If the decision in Shahbaz Khan (which has, with some reservations about the passage quoted in paragraph 20 above, also been endorsed by the Court of Appeal in Balajigari v SSHD  EWCA Civ 673) was what caused Mr Gajjar to appreciate that the principal grounds put to the Upper Tribunal had no merit, then that was a position he was aware of from the time of that judgment, early in February 2018. It is therefore not easy to see why he advanced the Judicial Review grounds that he did, nor why in discharge of his duty of candidness he did not also cite the many authorities against him as a part of his grounds, rather than simply attaching Shahbaz Khan as part of the bundle and making no reference to the wealth of decisions against him. Even if Mr Gajjar was in some way unaware of the status of the decision in Shahbaz Khan and thought that it had in some way changed when it was given a headnote, we do not understand why he did not then promptly contact the High Court and the respondent and interested party to his Judicial Review claim and explain that the basis upon which the Court had given permission could not now lead to a successful appeal.
29. It is not our role to challenge the decision of the High Court granting permission in the Judicial Review. It is, however, becoming increasingly clear that a substantial number of these claims are succeeding in circumstances where it is difficult to imagine that the Full Court that decided Cart itself intended that the litigation should be prolonged in this way. In the present case it is, with respect, not easy to see that the ground that appears to have found favour with the Court was even made out, when the actual application is compared with the requirements set out in the Practice Direction. There was no identification of the proposition, and no certification.
30. Further, it is not easy to see why anybody might think that a claim based on Kadian could possibly succeed. Its apparent ratio is that understatement of income for tax purposes is incapable of engaging paragraph 322(5). But that proposition is contrary to a wealth of authority and must depend in part on the mistranscription in Kadian of the text of the Rules, substituting "and" for "or" before "associations" as noted in paragraph 15(i) above.
31. Here, whatever might be said about the application to rely on Kadian that was the subject of the Upper Tribunal's decision, it appears that permission was granted on grounds which had no merit, ought to have been withdrawn by their proponent, and do not seem to have been regarded as giving a reasonable prospect of success even in the grant of permission. Further, as we have noted, the decision of the High Court gives no indication of why it was thought that the second appeal criteria (set out in CPR 54.7A(7)(b)) were or could be met in this case. The result is that these proceedings have extended a good way beyond the point at which the appeal should have been regarded as finally determined.
32. We return, belatedly it may be thought, to the appeal before us. As Mr Gajjar acknowledged, once it is accepted that the Secretary of State was entitled to decide the application by reference to paragraph 322(5) in the circumstances of this case, the surviving grounds of appeal are rather limited. Mr Gajjar attempted to repeat the ground based on the point that that paragraph incorporates a discretion. But, despite the way in which, by reference to formerly-available grounds of appeal, that point was put at earlier stages of this case, it cannot help the appellant now. We accept of course that if paragraph 322(5) were to be shown not to be applicable, then a human rights appeal would, in its consideration of proportionality, have to take into account that the refusal was based on a factor upon which it ought not to have been based. But where the decision does not have that feature of potential unlawfulness, the discretion involved in making it can have no direct application to an appeal of this sort.
33. That leaves only the question whether it can be shown that Judge Shore erred in his treatment of the evidence before him relating to other aspects of the appellant's life. He dealt, as we have said, with the article 8 issues both within and outside the Rules raised by the appellant's family life. Although he referred to documents evidencing other aspects of the appellant's life he did not deal with them specifically.
34. Those documents show that the appellant is active as a member of his church and that his parish priest and others regard him as honest, an opinion that must now be read in the light of Judge Shore's findings. There is also limited evidence of voluntary work: the organiser records a break (of unspecified length) in this work, and the evidence cites only one person specifically assisted.
35. Mr Kotas submitted that it was wholly unrealistic to think that there was any possibility that this evidence, however fully considered, could have affected the outcome of the appeal. We entirely agree. The Judge found that the appellant was responsible for the considerable understatement of his income for tax purposes, and that that weighed heavily in determining the proportionality of refusing him leave. The appellant cannot meet the requirements of the Rules. In order to succeed, he would have to show that the individual circumstances of his case justify a conclusion that despite not meeting the requirements of the rules he is entitled to remain. The evidence upon which he relies for that purpose is in our judgment insufficient even seriously to raise the question.
36. Judge Shore's decision contained no error of law. This appeal to the Upper Tribunal is dismissed.
C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 5 November 2019