Leave to remain in the UK and allegations of dishonesty

Mrs Karagul and her family was granted Limited Leave to enter on 13/07/2015 and arrived in the United Kingdom on 11/08/2015. On 01/12/2015, Mrs Karagul applied for Leave to Remain under the Agreement establishing an Association between the European Economic Community and Turkey in order to establish herself in business, working as a mobile beauty therapist (the Agreement permits Turkish nationals to establish themselves in business in the UK). Mrs Karagul’s and her family application was refused on the basis of alleged dishonesty. She was effectively denied a right to ‘clear her name’ and refute the allegations due to Home Office procedural flaws.

The Administrative Court held that:

The process by which the claimant had been found dishonest and then faced an appeal process conducted without any chance to rebut that allegation with new evidence had been found procedurally unfair at common law.

The Administrative Court also quashed the SSHD decision, refusing their applications for leave to remain in the UK, and remitted them for fresh consideration. Although the Home Office must now reconsider their decision, it does not mean that Leave to Remain must be granted.

The Administrative Court confirmed that as a general principle where a public authority refuses an application for some right, on the basis that the applicant has been dishonest or acted in bad faith, common law fairness requires procedural safeguards. Either an interview or a written ‘mind to refuse’ process should be followed before a final decision is taken.

Further, an internal administrative of that decision is likely to be unfair if it bars the applicant from submitting new evidence to rebut the finding of dishonesty.

Lastly, the need for these common law procedural safeguards is particularly acute when there is no right of appeal on the merits to an independent tribunal.

The judgment is likely to have very wide implications extending well beyond United Kingdom immigration law.

The judgment is available at Bailii