By Jessie Yang
In the case of Khan v The Secretary of State for the Home Department, the Court of Appeal dismissed the appeal of the appellant, whose application for Indefinite Leave to Remain had been refused by the Secretary of State (Respondent). The appellant’s application was refused on the basis that he had provided false information about his income in a previous application for leave to remain. It was held that the documents provided by the Appellant had to be genuine and therefore the Secretary of State had acted fairly by refusing the application.
Keep reading to learn more about the case and the rules for submitting false information in an application.
Background of the case
In this case, the Appellant applied for Indefinite Leave to Remain as a Tier 1 migrant. The Respondent (the Secretary of State) refused the Appellant’s application on the basis that the earnings that the Appellant had provided in his current and previous application for Indefinite Leave to Remain had not supported the lower amount of earnings that he had declared for the purpose of income tax. The Appellant’s claim was subsequently dismissed under paras 276B and 322(5) of the Immigration Rule.
The Appellant challenged the decision in the Upper Tribunal (Asylum and Immigration Chamber) by submitting a Judicial Review claim. The Appellant contended that the Secretary of State had acted unfairly by failing to give him adequate notice of the issues raised. In addition, the Appellant submitted that the Respondent’s finding of dishonesty had been irrational.
The Upper Tribunal dismissed the Appellant’s claim and the Appellant appealed.
Judgment of the Court
It was held by the Court of Appeal that the Upper Tribunal was not irrational in reaching the conclusion that the Secretary of State had acted unfairly. When reaching the decision, the court set out the following tests and requirements to be met by the Respondent, the Secretary of State:
1. Were the documents or information relating to the Appellant’s claimed income genuine and true? In the present case, it was decided that the documents and the claimed income were not genuine.
2. If the Respondent considered that the discrepancies were the result of dishonesty, did she clearly inform the Appellant of this fact and give him the opportunity to respond, both about his conduct and any other factors that were relevant and should be taken into consideration? In the present case, the court held that the requirement was satisfactorily met.
3. Provided that requirement 2 is met by the Respondent and that the Appellant responded to the Respondent, did the Respondent take that response into account before she concluded that the Appellant had been dishonest? In the present case, the court held that on the facts of the case, this requirement was amply met.
As a conclusion, the court ultimately held that the Respondent (the Secretary of State) had met all the relevant requirements and accordingly, the Appellant’s claim was dismissed.
Significance of the case and our comment
The decision in Khan v The Secretary of State for the Home Department means that any future applicant for Indefinite Leave to Remain is obliged to provide detailed, genuine and true evidence that supports the applicant’s claim that they have earned the necessary income.
If the Secretary of State can prove that they have given the applicant the opportunity to respond to the submitted claimed income that is or might not be ‘genuine’, the court will most likely to find that the Secretary of State had acted with impartiality and fairness.
This is especially true when the Secretary of State can show that they have taken into consideration the applicant’s response or any other relevant factors before concluding that the applicant had been dishonest. Accordingly, the court will be highly likely to refuse an applicant’s claim in such a scenario.
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