"Character" and "Conduct" issues in Paragraph 276B(ii)(c) of the Immigration Rules arising from tax related matters

The Court of Appeal (Irwin LJ, Simler LJ and Sir Jack Beatson) hands down the judgment in Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157 and allows the Appellant's appeal. The Court of Appeal's judgment concerns "character" and "conduct" issues arising from tax related matters in the context of Paragraph 276B(ii)(c) of the Immigration Rules.

The Appellant appealed to the Court of Appeal from the decision of the Upper Tribunal to uphold the decision of the First Tier Tribunal which, in turn, had dismissed his appeal from the Home Secretary's decision to refuse his application for indefinite leave to remain based on his 10 years residence in the United Kingdom. The Home Secretary used Paragraphs 276B(ii)(c) and 322(5) of the Immigration Rules to refuse the Appellant's application. The First Tier Tribunal dismissed the Appellant's appeal by reference to Paragraph 276B(ii)(c) of the Immigration Rules on the grounds of his "character" and "conduct" because he had failed to make timely tax returns for three consecutive years. The First Tier Tribunal, among other things, found that the Appellant had "failed to act with integrity in relation to his tax affairs". The Upper Tribunal, on the Appellant's appeal, held that the First Tier Tribunal made no error of law in dismissing the Appellant's appeal.

The Court of Appeal, on the Appellant's further appeal, holds that both the Upper Tribunal and the First Tier Tribunal erred in law in making their respective decisions. The Court of Appeal allowes the Appellant's appeal and set aside the decisions of the Upper Tribunal and the First Tier Tribunal, while preserving certain findings of fact.

The Court of Appeal upholds the Appellant's "central complaint" that the First Tier Tribunal "proceeded directly from the adverse finding on conduct and character, albeit not based on dishonesty, to uphold the refusal of [indefinite leave to remain], without considering the positive evidence as to the Appellant's conduct and character, and without conducting the balancing exercise necessary for a lawful conclusion" [18]. The Court of Appeal concludes that "There should be a balancing exercise, taking into account any positive factors" [44].The Court of Appeal observes that "Resort to the phrase lack of integrity may well confuse rather than illuminate decision-making in this field" [45]. The Court of Appeal further concludes that "In all but the most extreme cases, where the conduct complained of is such that on any view the balance must fall against an applicant, even where a sufficient character or conduct issue is proved, a balancing exercise is required" [46].

Zane Malik appeared for the Appellant. Christopher Staker appeared for the Respondent.

The Court of Appeal's full judgment is here.