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Published 25 March 2021
The Points Based System, as it was originally introduced in 2008, was designed to be fast and economical which the preceding immigration system arguably was not. As time lapsed, the Points Based System grew slower and more expensive with visa application fees increasing significantly and the levying of numerous disbursements such as the Immigration Health Surcharge, Immigration Skills Charge, biometric enrolment fee, visa appointment fees and faster processing fees. It is therefore unsurprising that an element of fairness was gradually embedded in to the Points Based System by the Courts.
Most recently, the Supreme Court in R (on the application of Pathan) v Secretary of State for the Home Department  UKSC 41 (‘Pathan’) held that a requirement for the Secretary of State to act fairly included a duty to give prompt notice to a Tier 2 visa applicant if their sponsor’s licence was revoked.
A subsequent decision by the Court of Appeal, however, limits the application of procedural fairness.
R on the application of Taj v Secretary of State for the Home department  EWCA Civ 19 (‘Taj’)
The main issue before the Court of Appeal in Taj was whether the Secretary of State was required to notify the Applicant of inconsistencies in his application and give him a chance to address those concerns.
The Applicant had a Tier 1 (Entrepreneur) visa and made an application to extend it. After the application was submitted, the Home Office carried out a threefold assessment; a paper based assessment, an interview and a site visit to the Applicant’s business premises.
After completing the assessments, the Home Office identified a number of inconsistencies and concluded that the business was not genuine.
The fundamental argument by the Applicant in this case was that the refusal of his application was procedurally unfair because the Home Office are obligated to provide notice of concerns it had, especially when these concerns relate to the truthfulness of an applicant. To make the refusal decision in Taj procedurally fair the Applicant argued that the Home Office needed to:
a) give the Applicant the opportunity to explain those concerns through representations to the Home Office; and
b) disclose the nature of their concerns so they could be fairly addressed by the Applicant.
The Applicant sought to rely on the recent decision in Pathan to support his argument. In Pathan, the Court ruled in favour of a Tier 2 migrant who had an application for leave to remain refused due to his sponsor’s licence being revoked before a decision was made on the application. The Supreme Court decided there was a duty on the Secretary of State to promptly notify Mr Pathan of the revocation of his sponsor’s licence and not to do so was procedurally unfair.
The Secretary of State responded to the Applicant in Taj, arguing that the Points Based System is drafted in a prescriptive manner which removes discretion and replaces it with strict, clear and transparent criteria which must be met for a successful application. The way the rules are drafted is intended to encapsulate the requirements of fairness.
The Secretary of State’s arguments were favoured by the Court and the Applicant’s case was dismissed.
When reaching their decision, the Court of Appeal in Taj relied on the acknowledgement by the Supreme Court in Pathan that the application of procedural fairness is fact and context specific. This led to the Court of Appeal introducing the following two-part test to be used when assessing the application of procedural fairness in Points Based System applications;
a) who has access to the information needed to support an application
b) who has control over that information
In Pathan, there was a fundamental change of circumstances which were outside of Mr Pathan’s control and information which affected the decision was held exclusively by the Secretary of State. As such, Mr Pathan was not at fault for not meeting the requirements of the Immigration Rules and this was identified as the distinguishing feature between the two cases.
Conversely, in Taj, the Court held that the Applicant had both access and control over every relevant fact which contributed to the success or failure of his application. The Applicant was able to prepare for his interview with the Home Office, knew the nature of that interview and knew that he had to meet a requirement of ‘genuineness’.
Further, the Court of Appeal held that the Points Based System is open and transparent and is drafted in such a way that it is inherently fair. An applicant has an opportunity to advance their best case for an application for leave to remain before it is submitted. As a result of this, it was held that the Home Office is not obligated to notify an applicant of evolving concerns, including concerns related to truthfulness, before a decision is made on an application.
It is also worth noting that the Court in Taj acknowledges that the Points Based System can lead to unfair decisions, if perhaps not procedurally unfair decisions, and this is an acceptable trade-off for a clear and precise system.
Following Taj, and its contradictory approach to the application of procedural fairness in Pathan, it is apparent that the burden is on the applicant to pre-empt concerns or weaknesses in their application before it is submitted. With the infamous complexity of the Immigration Rules as a whole, this is clearly a difficult task particularly for unrepresented applicants for whom English is not always a first language. Where an individual fails to do so, they may still rely on procedural fairness in limited cases.
One example was highlighted in the case of R (Balajigari) v Secretary of State for the Home Department  EWCA Civ 673. Here, the Court of Appeal held that where the Secretary of State was minded to refuse indefinite leave on the basis of dishonesty, which was likely to be a serious matter, common law procedural fairness required that an indication of that suspicion should be supplied to the applicant to give him an opportunity to respond through prior notice.
Arguably, the Supreme Court’s finding in Pathan remains but applicants should be aware that arguments of procedural fairness have limitations as the Court of Appeal set out in Taj.
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