The Court of Appeal's judgment in Rule 322(5) cases as to out-of-country appeals and section 3C leave

The Court of Appeal has handed down its judgment in Baldha and Dhamodharan v Secretary of State for the Home Department [2020] EWCA Civ 1494.

Mr Dhamodharan and Mr Baldha have three things in common. First, their applications for indefinite leave to remain were refused by the Secretary of State by reference to Paragraph 322(5) of the Immigration Rules on the basis that there were material discrepancies in the earnings that they had claimed in their application for leave to remain as Tier 1 (General) Migrants and the earnings that they had declared to HMRC for the corresponding tax years. Second, they left the United Kingdom voluntarily following the Secretary of State's decisions but challenged those decision by way of Judicial Review. Third, their applications for permission to apply for Judicial Review were refused by the Upper Tribunal prior to the guidance given in Balajigari v SSHD [2019] EWCA Civ 673. In the light of Balajigari, the Secretary of State agreed to withdraw her decisions refusing the applications for indefinite leave to remain made by them, reconsider their applications by adopting the "minded to refuse" procedure and facilitate their return to the United Kingdom if, at reconsideration, their applications are successful. Mr Dhamodharan and Mr Baldha declined to settle the proceedings by way of consent and this resulted in the hearing before the Court of Appeal.

Mr Baldha and Mr Dhamodharan, at the Court of Appeal, sought quashing the Secretary of State's decisions, declarations that they have leave to remain under section 3C of the Immigration Act 1971 and may return to the United Kingdom at any time on that basis, orders requiring the Secretary of State to facilitate their return to the United Kingdom pending the outcome of the reconsideration of their applications for indefinite leave to remain, damages for breach of their Article 8 rights, declarations that their presence in the United Kingdom is not undesirable and that they are entitled to indefinite or limited leave to remain, and, full costs.

The Court of Appeal, refusing the applications made by Mr Baldha and Mr Dhamodharan, held that:

• The Upper Tribunal made no error of law in holding that "it was unarguable that the Secretary of State was not entitled to conclude that [Mr Baldha and Mr Dhamodharan] had been dishonest" – [7].
• When the Secretary of State's decisions "are looked at fairly and as a whole, … the decision-makers clearly concluded that, in making differential declarations of income, [Mr Baldha and Mr Dhamodharan] had been dishonest, that dishonesty being the basis of the conclusion that the criteria in paragraph 322(5) were met" – [8].
• The decisions made by the Upper Tribunal "were not arguably wrong" – [12].
• It would be "inappropriate" for Article 8 claim to be made this Court of Appeal in the circumstances where "the First-tier Tribunal is experienced and better equipped to act as a fact-finder than this court on an appeal or even the Upper Tribunal on a judicial review" – [14].
• "Section 3C(3) of the 1971 Act provides that the leave extended by that section lapses if the applicant leaves the UK, as [Mr Baldha and Mr Dhamodharan] here have" and "as a result of that statutory provision, [they] currently have no leave to remain as at present and consequently no right to be in the UK as a result of any such leave" – [20].
• "It is insufficient for an applicant to assert that his or her application for leave to remain can only be properly made if he or she is in the UK; and/or that if such an application is in the future refused, then he or she has a right to an in-country appeal and so must be allowed to stay in (or be returned to) the UK" because "whether an out-of-country remedy is sufficient will depend on the circumstances of the case … there are many circumstances now in which (e.g.) an out-of-country appeal in an article 8 case will be adequate to comply with the right to access to justice" – [25].
• Mr Baldha and Mr Dhamodharan were not entitled to their full costs. They were only entitled to their costs from the date when they claimed procedural unfairness. Further, they were liable to pay the Secretary of State's costs of and occasioned by the hearing at the Court of Appeal – [26].

Zane Malik appeared for the Secretary of State for the Home Department