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Craig Holmes Succeeds in Judicial Review of Refusal of Indefinite Leave to Remain

by Kenworthy's Chambers 14/05/2018

Following a refusal of indefinite leave to remain as a Tier 1 migrant, Craig Holmes, instructed by Parkview Solicitors, has succeeded in having both the refusal, and subsequent refusal of an administrative review, quashed.

The Applicant in this case had been refused indefinite leave to remain under the general grounds of refusal, paragraph 322 (5). The Secretary of State alleged that due to late filing of one of the Applicant's tax returns, and also due to perceived ‘discrepancies' in the amount that the Applicant had earned, the Applicant's "conduct" or "character" meant that it was necessary to exclude him from the UK. An administrative review was sought, pointing out not only that the decision letter in question was riddled with mistakes, but also that there were in fact no ‘discrepancies' in the Applicant's income, nor was the delay in filling the tax return unexplained. Nevertheless, the Secretary of State maintained the decision to refuse the application.

The Applicant therefore sought judicial review of the Secretary of State's decision to refuse. Craig argued, successfully, before the Upper Tribunal that the decision in question failed to establish exactly what it was that the Secretary of State alleged brought the Applicant's character into question; particularly in light of the fact that the Secretary of State had misled herself as to the relevant facts of the Applicant's case. Having accepted the arguments put forward by the Applicant, both the decision to refuse, and the subsequent administrative review upholding it, were quashed by the Upper Tribunal, and the Applicant was awarded his costs of bringing the action.

The challenge was an important example of it being crucial that Applicants and representatives remain willing to keep the Secretary of State honest in respect of her (or now his) assertions, not only when those allegations are made under the worryingly broad powers encapsulated in rule 322 (5), but particularly so where the allegations cast relatively grave aspersions on an individual's character.