Balajigari - the UT, CoA, HO and costs...

 As a direct immigration barrister who has been practising for some 20 years, one of the few matters that has troubled me more than the Legacy Shambles, Toeic scandal is the way Tier 1 Migrants have been effectively called liars without having been given the chance to explain themselves.

This was thankfully been brought to ahead by the Court of Appeal inBalajigari v Secretary of State[2019] EWCA Civ 673. Since this case there has been much evidence as to how the cases are to be disposed of in the Court of Appeal and Upper Tribunal.

The history of this negotiation goes back to Balajigari which held that the Secretary of State's decision making process was unlawful. This lead to a number of test cases which had been stayed. At this hearing where I represented 2 out of the 4 clients, the Court sought directions from each as to how the cases would be disposed of.

This lead to the HO suggesting that they would reconsider and not much else.

This lead to responses initially by me and then by other practitioners as to how the cases should be disposed of, ie people should be given s.3C leave, right to work, reconsideration, clearing of name, quashing of decisions and payment of costs.

The HO final position, accompanied by various draft Orders were that the Secretary of State would withdraw the decisions, ie meaning that the Applicants had won, and that the Respondent (Secretary of State) would pay the reasonable costs. This position statement highlighted cases in the UT.

Key factors were that the SoS accepted decisions could not be defended and secondly that there would need to be a reconsideration and it was agreed, as is normal, that the Respondent would pay costs as losing party. Indeed in the position statement contained a number of provisions or draft Orders.

However, since this has been published the UT has adopted an inconsistent approach to Balajigari cases - granting permission on some on the basis that there will be a reconsideration and that this meant the decision was plainly arguable.

Other UT Judge refused permission on the basis that there would be, at some future point, a reconsideration and that meant the JR was academic, which seems unfair as when we contacted GLD it took us ages to track down the caseworkers and get them, essentially after the Order to agree to the reconsideration.

Then the Secretary of State started issuing varying Consent Orders, that provided that costs would be awarded, that there should be no order as to costs, that costs should be from date of Balajigari or from the date of amendment - this is clearly in breach of what was said to be the HO position to the UT. Who knows what the HO's position statement had on the UT in the way they disposed of the cases. It looks to me that the HO having realised that they were looking to lose large sums of money defending a fundamentally flawed procedure were trying to wriggle out of the costs.

This left a large number of cases in the Court of Appeal - recently LJ Hickinbottom took charge and issued directions that set out the Secretary of State's position as to the Court of Appeal cases. The Court of Appeal provided the GLD with a list of Balajigari stayed cases - with the GLD to provided position statements.

The position statement came through in part today, in brief it divided the cases into four

1. Balajigari cases
2. This included appeals against refused JRs; and
3. Appeals against dismissed JRs.
4. Cases which raised Balajigari but where there had been a statutory appeal;
5. Such as LTR - long residence claims; and
6. Cart Jus
7. Cases where the individual had been "tarred with the Balajigari brush" but where the client had been granted limited leave to remain as opposed to ILR;
8. Other cases which would be dealt with on a case by case basis

Balajigari cases

Here the HO proposed that

1. Permission to appeal should be granted and the appeal allowed;
2. Permission to apply for permission to apply for JR granted and JR allowed;
3. The HO to quash the decision
4. The HO to reconsider
5. Along lines of UT;
6. By sending "minded to refuse letters" and giving Applicants 14 days to respond;
7. That if Applicants did not respond the HO would proceed on the same evidence (ie likely to re-refuse without a right of appeal - if made under SET O route

Oddly, whereas in the original position statement the HO included draft consent orders - none are produced. Even more worrying is that the document is silent on the issue of costs. This is worrying given the inconsistent position adopted by the Home Office.

Settlement / Appeal

The GLD position is that these cases should not be conceded. The basis for this is that individuals have had the chance to bring their appeal already and have had the chance to clear their name

CART JRs

These again are not proposed to be consented, even though anecdotally I have seen a few, on the basis that the Applicant had a right of appeal.

In these cases - I would advise that individuals get in touch with the lawyers urgently, and review the merits and arguments being advanced, perhaps grounds will have to be amended or cases reviewed entirely, it might be possible to try to bring these cases within the Balajigari "cohort" and get the principles applied but this may well be difficult

LLR and not ILR

Here the SoS is being somewhat disingenuous, the SoS accepts that something has gone wrong - ie that they were never given a "Minded to refuse" refusal and that the Secretary of State would agree to reconsider.

The problem with this is that the HO does not propose that the Court of Appeal allow these cases and is silent on this matter. It seems to me that the HO are hoping that the Court of Appeal will dismiss any such appeals as being academic on the basis of the promise. It seems to be contradictory, while there is some excuse that those straightforward Balajigari cases don't have leave these individuals have. It seems to be to be a distinction without a difference - in particular as the SoS makes no reference to paying costs in these or any other cases.

The "odds and sods"

Lastly, the HO accepts that there are odd cases that will be dealt with on a case by case basis.

Analysis

It seems that the HO are seeking to withdraw from the earlier position of paying costs and withdrawing and are doing so both by putting forward wildly inconsistent consent orders and the complete absence of any suggested orders in the CoA submissions and absence of any suggested wording for the disposal of the cases.

My advice in these cases, would be that if your case falls within the UT "cohort" - then unless you are given either the right 2 work (as a minimum) or re-instate s.3C leave and agree to pay costs and costs in their entirety - then the HO has changed its stance without informing the UT as a whole. It is never a good sign for the GLD to adopt a widely differing approach - law is about consistency. The HO lost and ought to pay. As to the argument that it was only after Balajigari that they should pay this is arguably fallacious - the Court of Appeal do not make the law - they only interpret it - or discover it - in short they discovered that the whole manner that the HO had approached the 322(5) cases was procedurally unfair, as was reflected in the earlier position statement - as it would be manifestly wrong for the HO to be defending cases upon which it knows the decisions are legally flawed. If it was the other way round and an Applicant sought to argue a case on a legal basis even though the circumstances underpinning the decision had fallen away the Court would not be impressed, for example if the Applicant was actually found to be an Albanian after a refusal it would be strange if the Applicant was allowed to continue arguing the case on the basis that the Applicant was a Kosovan. A more ridiculous example would be if the Applicant continued argued the case on the basis of risk on return as a single woman to a dangerous place and it was discovered that the Applicant was actually a man just because the HO had not raised this as an issue.

There are a great number of these cases and I look forward to having a meeting and hopefully an interview with Salman and some of the Highly Skilled Group this week which will result in a detailed discussion.

So, on it goes, what should have been a simple disposal, and indeed a great deal of work went into devising a disposal that was fair, has become more complex, and it is sad that the complexity is coming from the losing party, and looking at this, all I can assume it is an attempt at damage limitation both in number of cases conceded and costs.

Surely, the simplest course of action would have been to have carried out the entire exercise lawfully in the first place, rather than putting individuals and families through many many years of suffering. It is not as if this argument was complex. Indeed as noted by the Court of Appeal, there was a clear precedent in nationality cases.

Balajigari was handed down in April - it is now November and the matter still rumbles on, I wish I could say I was surprised but having done this for over 20 years, I see the usual mixture of law and politics on the government side, it saddens me as this was not a narrowly one case. The Court of Appeal were emphatic. A large number of people were simply denied a fair decision and are now paying the price in uncertainty, legal fees and delay. I hoped that the HO would honour or at least follow the position statements, however this is not what I see on a daily basis

I will continue to provide written and video updates, but thought for a change I would put these thoughts into writing.

If you have an immigration problem, whether it be a 322(5) refusal or a Toeic allegation or any other matter or if a friend or family member has please do not hesitate to contact me, Paul Turner, the direct access immigration barrister and head of Imperium Chambers on 020 7242 3488.