The Court of Appeal has allowed two appeals over refusals under a special immigration scheme, directing that the applicants’ review applications be reconsidered by a different reviewer.
The judgment, delivered by Ms Justice Faherty on 3 October 2023, concerns two non-EEA nationals whose residence permissions based on marriages to EU citizens had been revoked. The Minister later refused their applications under a scheme for certain former student-permission holders, finding they did not meet its requirement to have been of good character and conduct.
The first applicant, identified as S.R. in the case heading and referred to in the judgment as Ms Rana, is an Indian citizen. The Minister’s 2018 revocation decision found that she had entered a marriage of convenience. The second applicant, identified as L.A. in the heading and referred to as Mr Ali, is a Pakistani citizen. His residence permission was revoked in 2016 after the Minister found that documentation submitted in support of his application was intentionally misleading. Neither applicant sought a review of those revocation decisions.
Their scheme applications were refused in 2020. They challenged the refusals, arguing that the Minister had not assessed their character and conduct in the round, including the information and character references they supplied with their review applications. The High Court dismissed their challenges in 2022.
The Court of Appeal held that the earlier findings could be relevant and carry substantial weight, but they did not remove the Minister’s obligation to consider the scheme criterion in the round. The court did not overturn or reopen the earlier revocation findings. It said the scheme reviews were not a new decision-making stage for those decisions.
The appeal turned on the wording of the October 2020 review decisions. Although they said that the applicants’ additional material had been considered, they also said the reviewer had found that the proper procedures were followed and the correct interpretation of the scheme criteria applied. That wording left uncertainty about whether the reviewer had assessed the merits of the submissions and weighed the additional material against the earlier findings.
The Court of Appeal said the decisions did not give an unambiguous indication that the required assessment had taken place. It also found that the reviewer’s affidavits in the proceedings did not explain the review process or the reasons for refusing the applications. The court therefore allowed the appeals on this narrow basis and remitted both review applications to the Minister for reconsideration by a different reviewer. It did not decide whether either applicant meets the scheme’s character criterion.
The applicants were awarded their costs, subject to any party seeking a different costs order within 28 days of electronic delivery of the judgment.