Last year, in the important case of Balajigari  EWCA Civ 673, the Court of Appeal ruled that, before refusing a settlement application on the basis that the person applying has been dishonest, the Home Office must:
- Let the applicant know that they are minded to refuse, and allow them a chance to submit more information as to why they should not be refused.
- With all of the evidence in front of them:
- Consider whether the applicant was dishonest
- Consider whether, even if dishonest, the applicant’s presence in the UK is undesirable
- Consider whether, even if dishonest and undesirable, the applicant should be granted leave for other reasons
In the new case of R (Mansoor) v Secretary of State for the Home Department (Balajigari – effect of judge’s decision)  UKUT 126 (IAC), the Upper Tribunal has found that
The process required by the Court of Appeal in Balajigari may be carried out by the Tribunal in effect applying that guidance, such that the Secretary of State’s failure to do so is rendered immaterial.
The tribunal also reiterated that a person can be allowed to remain in the UK despite dishonesty, although it would be “surprising” for the Home Office to grant them indefinite leave.
When can tax discrepancies be forgiven?
In the present case, the Home Office had refused Mr Mansoor’s application for indefinite leave to remain on the familiar basis that he had been dishonest in his dealings with HMRC and/or the Home Office. The charge was that he had either overstated his earnings to the Home Office, or underestimating his earnings to HMRC. Officials applied the infamous paragraph 322(5) of the Immigration Rules to refuse his application for settlement.
Mr Mansoor appealed against the refusal. The First-Tier Tribunal also found that he had been dishonest. But the judge went on to decide that he shouldn’t be removed from the UK: he had a British wife and son, and it was in the son’s best interests to remain in the UK.
The Home Office proceeded to grant Mr Mansoor leave to remain in the UK for 30 months. Mr Mansoor challenged this decision by way of judicial review, arguing that he should have been granted indefinite leave to remain.
In his challenge, Mr Mansoor argued that the process set by Balajigari was not followed. The Upper Tribunal disagreed: Mr Mansoor had had the opportunity to explain the discrepancies between his tax returns and Home Office applications at the First-Tier Tribunal. The tribunal, in turn, considered those reasons and still found him to have been dishonest.
In view of the finding of dishonesty, the Home Office was entitled to grant limited leave to remain, rather than indefinite leave to remain. Mr Mansoor still failed to meet the rules to be granted indefinite leave to remain, but was granted limited leave on the basis that his removal would violate his and his family’s Article 8 rights. This finding is in line with paragraph 39 of Balajigari itself, which states:
There will, though no doubt only exceptionally, be cases where the interests of children or others, or serious problems about removal to their country of origin, mean that it would be wrong to refuse leave to remain (though not necessarily indefinite leave to remain) to migrants whose presence is undesirable.
The application for judicial review was therefore refused.