Claimant’s duty of candour in judicial review proceedings and evidence proving long residence: What Mr Khan did wrong

The recently reported case of Khan, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 416, raises the following  issues in summary:

  • Claimant’s duty of candour in judicial review proceedings;
  • Whether only  documents from “official” sources are acceptable in proving continuous long residence.

In essence, what Mr Khan  did wrong  in seeking to assert that  he  was entitled  to  indefinite  leave to remain under the  previous 14year long residence rule was that he :

  • Put forward two different factual versions of his residence between 1998 and 2001; and
  • In breach of his duty of candour in judicial review proceedings, failed to provide a witness statement explaining the discrepancy between a previous work permit application and subsequent leave to remain application in relation to the said period of residence.

(1)Put forward  two different factual versions of his residence between 1998 and 2001:

Mr Khan claimed that he had entered the United Kingdom illegally on 1 January 1998 with the assistance of an agent, and remained here ever since. On 12 March 2013, the Secretary of State refused his application made on 2 July 2012 for leave to remain in the United Kingdom on the basis of 14 years long continuous residence pursuant to Rule 276B(i)(b) of the Immigration Rules and Article 8 of the European Convention on Human Rights.

It was the application for a work permit submitted in September 2002 that brought to the fore the factual discrepancies.  In 2002, a work permit application was made by a Mr Dad of Farnoak Ltd, t/a Sky Fries, a fast food takeaway, for a work permit for Mr Khan to work at Sky Fries. Mr Dad also appeared to have been Mr Khan’s landlord at the time.  Mr Dad clarified within the application that from 5 February 1998 to 27 June 2001 Mr Khan was a Tandoori chef in Pakistan. Mr Khan was granted a work permit for five years, however the application for leave to remain as a work permit holder was refused as he had not provided any evidence of lawful entry into the United Kingdom and the Secretary of State was not satisfied that he had entered the United Kingdom with a valid work permit or in a category that allowed a switch into a work permit.

Two letters dated 10 December 2011 signed by Mr Dad, the sponsoring employer in the 2002 work permit application, were submitted with the July 2012 application. The first letter, stated that Mr Khan was a tenant at a specified property belonging to Mr Dad and that he resided there between 1998 and May 2005.   The second letter, on the notepaper of Sky Superstore, stated that Mr Khan “was employed by Sky Fries from December 2002 to May 2005 with the benefit of a work permit”. .

The factual inconsistencies are thus clear.

(2)In breach of his duty of candour in judicial review proceedings, failed to provide a witness statement explaining the discrepancy between the previous work permit application and subsequent leave to remain application:

In judicial review proceedings filed on 11 June 2013, Mr Khan sought permission to challenge the decision of the the Secretary of State of 12 March 2013 refusing his application.

Permission was refused on the papers by Mr Fordham QC on 22 October 2013, and, following a hearing on 10 January 2014, by Upper Tribunal Judge Peter Lane.    Permission to appeal to the Court of Appeal was refused on the papers by Sir Stanley Burnton on 20 June 2014 but, following a hearing on 25 February 2015, was granted by Sullivan LJ.

The Secretary of State filed an application on 5 April 2016, for an order pursuant to CPR 52.9(1)(b) setting aside the grant of permission to appeal. It was submitted that Mr Khan and/or his representatives were in serious breach of their duty of candour in judicial review proceedings and permission to appeal was granted without Sullivan LJ being given the full picture as to the evidence in the bundle.

(3)Breach of duty of candour and failure by Mr Khan to file a witness statement: Court’s considerations

The Court of Appeal noted that the 2002 application for a work permit was not in the original bundles for the appeal submitted on behalf of Mr Khan to the Civil Appeals Office. It was only obtained by the court with or soon after the recent applications by the Secretary of State.

The Court of Appeal observed that at the time the proceedings were filed in 2013, the fact that Mr Khan did not provide a witness statement was not unusual or necessarily open to criticism but that in view of what subsequently emerged, however, this became a case in which the individual seeking judicial review should have filed a comprehensive witness statement at the permission stage. The Court considered that Mr Khan should certainly have done so after he had notice of the material relied on by the Secretary of State in her application to set aside permission to appeal.

The Court of Appeal considered and reasoned as below:

    • The duty to disclose all material facts known to a claimant in judicial proceedings including those which are or appear to be adverse to his case prior to applying for permission is well established.
    • Notwithstanding the provision by CPR 54.8 for a respondent to judicial review proceedings to file an acknowledgement of service and summary grounds, it remains the case that a claimant in judicial review proceedings must ensure that the judge dealing with such an application has the full picture in order to make the relevant decision.
    • The provision for a respondent to judicial review proceedings to file an acknowledgment of service and summary grounds does not justify a claimant taking a more relaxed view of the duty of candour.
    • The authorities on the duty that lies on a claimant concern disclosure. In the present case the 2002 application for a work permit was disclosed. The question was whether that was sufficient, or whether a claimant must do more to provide the judge dealing with the application with the full picture.
    • The Court of Appeal questioned, where as applies to Respondents, whether there was a similar duty on claimants to assist the court with “full and accurate explanations of all the facts relevant to the issue” raised by their application. Was it incumbent on Mr Khan and his legal representatives when making the application to draw the attention of those considering the application for judicial review to the answer to question 14 in relation to the work permit application and the inconsistency between it and Mr Dad’s letter dated 11 December 2011 both of which were submitted with the papers?
    • Providing a partial explanation in the statements of grounds and facts which is misleading will be a breach of the duty of candour in an application for judicial review even where it is not linked with a without notice application for an injunction. Beyond that, in particular, the Court of Appeal did not consider that it suffices to provide a pile of undigested documents, particularly in a document heavy case, or where the claimant has knowledge which enables him or her to explain the full significance of a document. The Court also stated that in considering the effect of a failure to explain material in a disclosed document that is adverse to the claim, it is relevant to consider whether the failure to explain the material was innocent in the sense that the relevance of the material was not perceived.
    • In the Court’s judgment, whatever the grounds given by the Secretary of State for rejecting the application for long continuous residence, those considering bringing judicial review proceedings should have carefully reconsidered the material relied on in support of the application before instituting proceedings. Had Mr Khan or his legal advisers undertaken a proper and careful review of the viability and propriety of a challenge to the refusal of the application for long continuous residence and the evidence in support of it before proceedings were filed, the existence of the two documents in reference to Mr Dad should have raised at least a bright amber light, if not a red one. The need for an explanation in a witness statement, either of Mr Khan or Mr Dad, or at least in the statement of facts and grounds, with the application for judicial review would have been manifest.
    • It must also be borne in mind that the duty of candour is a continuing one. It includes a duty to reassess the viability and propriety of a challenge in the light of the respondent’s acknowledgment of service and summary grounds.
    • In the present case, the Court of Appeal accepted that Mr Ahmed( appearing on Mr Khan’s behalf) did not know of the answer to question 14 in the 2002 application at the time the application for permission to appeal was renewed and at the time of the hearing. But the position of Mr Khan was different. He knew how long he had been in the UK and whether he had been here continuously. The information provided by Mr Dad’s solicitors, who were also Mr Khan’s solicitors when the application for the work permit application was granted, was something within Mr Khan’s knowledge. Absent any explanation, it appeared that he instructed representatives to make the long continuous residence application, to challenge the Secretary of State’s decision in judicial review proceedings, and then to seek permission to appeal against the refusal of permission on a fundamentally false basis. He used two documents signed by Mr Dad which contained inconsistent information on the crucial question in support of his application for long continuous residence leave. The Court had had no explanation of the discrepancy from Mr Khan in an affidavit or statement at any time, and in particular since the respondent drew it to the attention of his present solicitors. There had also been no statement by Mr Dad explaining the discrepancy.
    • The lack of candour demonstrated by Mr Khan, was patent. The two different factual versions of his residence between 1998 and 2001 could not both be correct without further explanation. There had been no explanation despite an opportunity to provide the same.
    • The Court agreed with McCloskey J in R (Bilal Mahmood) v Secretary of State for the Home Department [2014] UKUT 00439 that the duty of candour which is a duty to disclose all material facts known to a party in judicial review proceedings applies to all parties in the proceedings. The duty is not to mislead the court which can occur by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.
    • It was not Mr Khan’s advisers who had been guilty of a breach of the duty of candour. The lack of candour was, therefore, that of Mr Khan himself, who, must have known, when he launched the judicial review proceedings on 11th June 2013 and instructed his lawyers to appear before Sullivan LJ in February 2015, that he had not been continuously in the United Kingdom for 14 years before his application for leave to remain on 2nd July 2012.
    • Once it became clear that Mr Khan was not going to make a witness statement, his legal representative should, have withdrawn or discontinued the appeal however that was considered by the Court to be a rather different matter.
    • The Court considered it crucial in this case that Mr Khan had provided no statement explaining the discrepancy in the contents of the 2002 application for a work permit signed by Mr Dad and Mr Dad’s letter as landlord in support of the long continuous residence application. He knew whether he was or was not in Pakistan between 1998 and 2002. He knew that at the time he launched these proceedings and at the time he decided to appeal against the decision of the Upper Tribunal.
    • Applications such as this should be discouraged except in the clearest of cases. Mr Khan’s failure to provide any explanation since the Secretary of State identified the discrepancy made this such a case. It allowed the court to infer that he had none and that he put forward his applications for long continuous residence, for judicial review, and for permission to appeal to the Court of Appeal on a fundamentally false factual basis and did so knowingly. That in the Court’s judgment amounted to a compelling reason for setting aside permission to appeal.

(4)Documentary evidence submitted proving continuous long residence: Court’s considerations

The Court of Appeal noted at paragraph 2 of their judgment  that the principal issue in the substantive appeal concerned the nature of the evidence required to support an application for leave on the basis of long continuous residence. In particular, do only “official” documents suffice, and what is the status of non-official but “independent” documents and letters and of letters from neighbors and friends?

The Court noted at paragraph 25 of their judgement that the question whether documents of the types identified in the letter to Mr Khan and in the guidance were the only ones that qualified had arisen in a number of cases.

Mr Khan’s application of July 2012 enclosed the following documents:

  • ESOL Certificate, passport sized photographs, College certificates, NHS card and letters, reference letters, payslips, utility bills, P60s, tax papers, employment contract, P45, bank statements, phone bills, DVLA papers, and “work permit letter”. There was also a letter from the Vice-President of the Pakistan Welfare Association dated 15 December 2011 stating the writer had known Mr Khan for four years. The reference letters were from people who stated they had known Mr Khan since either March or November 1998. Two letters dated 10 December 2011 signed by Mr Dad, the sponsoring employer in the 2002 work permit application, were submitted with the July 2012 application. The first letter, on the notepaper of Sky Accommodation Services, stated that Mr Khan was a tenant at a specified property belonging to Mr Dad and that he resided there between 1998 and May 2005. The second letter, on the notepaper of Sky Superstore, stated that Mr Khan “was employed by Sky Fries from December 2002 to May 2005 with the benefit of a work permit”.

A letter from the Secretary of State dated 23 February 2013 asked Mr Khan to provide documentary evidence of ownership of his home or a rent book/tenancy agreement, a letter from the landlord or local authority confirming who resided at the premises, wage slips covering the last six months or, if self-employed, the last completed tax return and tax statement, detailed bank statements covering the last six months, and the most recent council tax bill. The letter also requested further documentary evidence from 1 January 1998 to December 2001 to show that he had been continuously resident in the United Kingdom since his claimed date of arrival on 1 January 1998.

The letter from the Secretary of State stated, “Please see attached Guidance Note for information on the type of evidence required”. (The Court of Appeal however noted that the Guidance Note appeared primarily concerned with documentary evidence of cohabitation). It stated: “You must provide documentary evidence of cohabitation in the form of official letters or documents addressed to yourself and your spouse”. The examples of acceptable types of letters and documents listed were those from government departments and agencies, GPs, a hospital or local health service, bank and building society statements and letters, mortgage statements and agreements, tenancy agreements, and council tax, water rates, and utility and telephone bills or statements.

In response, Mr  Khan’s legal representatives  stated that because Mr Khan did odd jobs to support himself on a “cash in hand” basis, he was unable to provide wage slips or a letter from an employer. They enclosed six letters stated to be “from respectable neighbours or friends to confirm Mr Khan’s resident  in the UK since he arrived in 1998”. The letters were similarly worded. They stated that the signatory had known Mr Khan “in a variety of capacities for many years”, had a good character, was honest, extremely competent, and “has an excellent rapport with people of all ages”.  Most stated they had known him since January 1998, but one stated he had known him since 1999.

The Secretary of State refused Mr Khan’s application in the letter dated 12 March 2013, which was challenged in the judicial review proceedings.  The letter stated that Mr Khan had only provided “word of mouth evidence from neighbours and friends (not official sources) from 1998 to 2001″. The letter also stated that  in response to the letter dated 23 February,  “you have not only provided acceptable evidence from 2001”  and  “you have provided no evidence at all of residence in the UK from 1998 to 2001, a complete gap of 4 years”.   The letter also  stated that the provision of word of mouth evidence meant that “you have therefore provided no acceptable evidence of residence in the UK from 1998 to 2001”  and that the Secretary of State was therefore not satisfied that Mr Khan met the requirements of paragraph 276B(i)(b) of the Immigration Rules in force before 9 July 2012.

The Court of Appeal considered and reasoned as below:

  • At the hearing before the Court of Appeal, Mr Lewis, appearing for the Secretary of State, acknowledged that a restriction providing that only official documents were acceptable evidence could not be defended. It was accepted on behalf of the Secretary of State that the statement in the decision letter that she would not consider such evidence was an error of law.
  • In the Court’s judgment, the Secretary of State was correct in not seeking to defend the part of the decision letter in which she stated that there was no evidence of residence in the UK from 1998 to 2001 because there were no official documents to this effect.
  • The Court did note that the guidance enclosed with the letter dated 23 February 2013 appeared to concern marriage/cohabitation applications, a different type of application to Mr Khan’s.
  • It was also noted that it was accepted on behalf of the Secretary of State that there was no authority for such a restriction in legislation or the Immigration Rules. The Court stated that it was recognised, for example in ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 at [3], the 14 year rule set out in Rule 276B(i)(b) is specifically directed to people who have managed to stay in the United Kingdom for 14 years or more without lawful authority, and is in effect an amnesty clause. It is likely that those in the United Kingdom without leave, and therefore without status, will have no official documentation, particularly in the early period of their residence. Thirdly, although most of the documents listed by the Secretary of State can be classified as “official” in the sense that they are from institutions and not individuals, a tenancy agreement and a letter from a landlord, which are listed, are difficult to classify as “official”.
  • In the light of the combination of the answer to question 14 in the 2002 application for a work permit and the absence of evidence by Mr Khan or Mr Dad explaining the position, the Court considered that there was a serious question about the continuous nature of Mr Khan’s residence. His legal representatives accepted that the high point of the evidence supporting residence in the United Kingdom before 2002 was the letter signed by Mr Dad stating that Mr Khan was a tenant of a specified property belonging to Mr Dad and resided there between 1998 and May 2005. That evidence was problematic in the light of the answer to question 14 in the 2002 application, which was completed on behalf of Mr Dad and signed by him. The remaining letters were of very little weight because they are in (almost identical) general terms, none referring to Mr Khan being known to the writer by reason of his residence in the United Kingdom, and none stated that he was present in the United Kingdom continuously.

Conclusion

Although the 14year rule is  no longer  in place, this has however  been replaced  by the 20year rule and as such  the same reasoning  also applies in this regards in relation to submission of evidence going towards continuous  long residence. Having regard to paragraph  276ADE and the several categories   listed therein in relation to private life  issues,  both official and reliable  non – official  documentary  evidence can be  submitted in applications or appeals in this regards.  The same should  also be applicable to  applications placing reliance  upon the 10year  continuous  lawful residence Rule.

As for Mr Khan, perhaps the outcome  might have been different  if he  had proffered a witness  statement  with explanations during proceedings, but then again  only he knows why he did not  do so.

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