HMRC case: Khan, Country of return: Abunar, Standard of proof: HKK, New matter: Oksuzoglu

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At last the §322(5) HMRC case Khan reported plus other UT case law
Khan, R (on the application of) v Secretary of State for the Home Department (Dishonesty, tax return, paragraph 322(5)) [2018] UKUT 384 (IAC) (3 May 2018)
(i)                  Where there has been a significant difference between the income claimed in a previous application for leave to remain and the income declared to HMRC, the Secretary of State is entitled to draw an inference that the Applicant has been deceitful or dishonest and therefore he should be refused ILR within paragraph 322(5) of the Immigration Rules.  Such an inference could be expected where there is no plausible explanation for the discrepancy.
(ii)               Where an Applicant has presented evidence to show that, despite the prima facie inference, he was not in fact dishonest but only careless, then the Secretary of State must decide whether the explanation and evidence is sufficient, in her view, to displace the prima facie inference of deceit/dishonesty.
(iii)             In approaching that fact-finding task, the Secretary of State should remind herself that, although the standard of proof is the “balance of probability”, a finding that a person has been deceitful and dishonest in relation to his tax affairs with the consequence that he is denied settlement in this country is a very serious finding with serious consequences.
(iv)             For an Applicant simply to blame his or her accountant for an “error” in relation to the historical tax return will not be the end of the matter, given that the accountant will or should have asked the tax payer to confirm that the return was accurate and to have signed the tax return. Furthermore the Applicant will have known of his or her earnings and will have expected to pay tax thereon.  If the Applicant does not take steps within a reasonable time to remedy the situation, the Secretary of State may be entitled to conclude that this failure justifies a conclusion that there has been deceit or dishonesty.
(v)                When considering whether or not the Applicant is dishonest or merely careless the Secretary of State should consider the following matters, inter alia, as well as the extent to which they are evidenced (as opposed to asserted):
                                  i.               Whether the explanation for the error by the accountant is plausible;
                                ii.               Whether the documentation which can be assumed to exist (for example, correspondence between the Applicant and his accountant at the time of the tax return) has been disclosed or there is a plausible explanation for why it is missing;
                              iii.               Why the Applicant did not realise that an error had been made because his liability to pay tax was less than he should have expected;
                              iv.               Whether, at any stage, the Applicant has taken steps to remedy the situation and, if so, when those steps were taken and the explanation for any significant delay.
Abunar (Para 339C: “Country of return”) [2018] UKUT 387 (IAC) (24 October 2018)
It appears that paragraph 339C of the Immigration Rules does not correctly transpose the relevant provisions of the Qualification Directive
HKK (Article 3: burden/standard of proof) [2018] UKUT 386 (IAC) (22 October 2018)
(1) It has long been a requirement, found in the case law of the European Court of Human Rights (“ECtHR”), for the government of a signatory state to dispel any doubts regarding a person’s claim to be at real risk of Article 3 harm, if that person adduces evidence capable of proving that there are substantial grounds for believing that expulsion from the state would violate Article 3 of the ECHR.
(2) This requirement does not mean the burden of dispelling such doubts shifts to the government in every case where such evidence is adduced, save only where the claim is so lacking in substance as to be clearly unfounded.
(3) Article 4.5 of the Qualification Directive (Council Directive 2004/83/EC) provides that, where certain specified conditions are met, aspects of the statements of an applicant for international protection that are not supported by documentary or other evidence shall not need confirmation.
(4) The effect of Article 4.5 is that a person who has otherwise put forward a cogent case should not fail, merely because he or she does not have supporting documentation. Nowhere in the Directive is it said that a person who has documentation which, on its face, may be said to be supportive of the claim (eg an arrest warrant or witness summons), but whose claim is found to be problematic in other respects, has nevertheless made out their case, so that the burden of disproving it shifts to the government.
(5) When national courts and tribunals are considering cases in which the ECtHR has decided to embark on its own fact-finding exercise, it is important to ensure that the ECtHR’s factual conclusions are not treated as general principles of human rights law and practice.
Oksuzoglu (EEA appeal – “new matter”) [2018] UKUT 385 (IAC) (17 October 2018)
(1)    By virtue of schedule 2(1) of the Immigration (EEA) Regulations 2016 (‘the 2016 Regs’) a “new matter” in section 85(6) of the Nationality, Immigration and Asylum Act 2002 includes not only a ground of appeal of a kind listed in section 84 but also an EEA ground of appeal.
(2)    The effect of the transitory and transitional provisions at schedules 5 and 6 of the 2016 Regs is as follows:
(a)     All decisions made on or after 1 February 2017 are to be treated as having been made under the 2016 Regs, whatever the date of the application;
(b)     Regulation 9 of the 2016 Regs applies (through the medium of the transitory provisions) to all decisions made on or after 25 November 2016 whatever the date of the application;
(c)     In all other respects the Immigration (EEA) Regulations 2006 apply if (i) the application was made before 25 November 2016 and (ii) the decision was made before 1 February 2017.
Fraz Wahlah - CEO Citizen Lawyer

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Fraz Wahlah

Fraz Wahlah is a leading British human rights lawyer and founder of Citizen Lawyer in London and Birmingham. Read more about Wahlah here