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Duncan Lewis Solicitors help client win an ‘earnings discrepancy’ Judicial Review (18 December 2020)

Date: 18/12/2020
Duncan Lewis, Main Solicitors, Duncan Lewis Solicitors help client win an ‘earnings discrepancy’ Judicial Review

There has been a slew of cases over the last couple of years where the Home Office have refused ILR applications on the basis that the applicant had previously declared earnings to the Home Office in one sum (where the applicant was applying for leave in a category that required income to a certain level), but then declared a lower income to HMRC for tax purposes. It is easy to see why the Home office consider that on the face of it that gives rise to suspicions that in one or other of those applications the applicant was being dishonest.

Fortunately, the Courts have recognised in judgments such as R (Balajigari) v SSHD [2019] 1 WLR 4647 that applicants should have an opportunity to respond where the Home Office are minded to refuse on this sort of basis. That is right as a simple matter of fairness, especially as applicants can be ignorant of the discrepancy, or the need to explain the discrepancy, and the hurdles that such explanations can face.

The Dalston public law team were instructed in the case of an applicant who had received a ‘Minded to refuse’ letter. It turned out to be one of those cases where although initially it appeared that the Home Office’s points were overwhelming, actually the applicant had a good answer to all of them.

We assisted the applicant in producing a very lengthy and detailed response on each issue. The most pertinent point was that the Home Office alleged that the applicant had only sought to amend his tax return for the year in question when he made his application for ILR. We provided evidence that showed that the applicant had commenced the process for amending his tax return, incorrectly completed by his previous accountants, some three and a half years earlier, at the earliest reasonable opportunity.

Unfortunately, the eventual decision did not refer to this evidence, and the response to the pre-action letter did not engage with the point either.

What really took the case out of the norm was that in their Acknowledgement of Service the Home Office alleged that the applicant’s letters to HMRC had been misaddressed, and therefore did not count as an attempt to rectify the record. That runs entirely against the principles of judicial review, which are restricted to: on the one hand challenges on the basis of the material the Applicant had put forward prior to the decision, and on the other, the reasons given for the decision at the time. Decisions are not supposed to be attacked or defended on the basis that “I would have said something different at the time and/or introduced different evidence then, if I had thought more clearly”. The Upper Tribunal commented laconically of the Acknowledgement of Service that “this was on any view, an unusual step”.

Not only was it unusual, it was transparently mistaken. The “evidence” that the postcode was wrong, was based upon a slight mistyping of the postcode that the applicant had actually used. The Applicant produced a “Reply” addressing the point in detail, which it appears, despite two follow up mails from the legal team, was not put before UTJ Gill, who proceeded to find in favour of the Home Office on all of the issues when refusing permission on the papers.

At the OPH counsel for the Home Office was constrained to accept both that the postcode point was wrong, and that it followed that permission should be granted on all grounds. The Home Office were then supposed to explain how this error arose. They have failed to even apologise, much less acknowledge that it was unacceptable to attempt to introduce new evidence at this stage and in this manner. They merely offered to make a fresh decision and pay costs on the standard basis.

Sadly our client was by now feeling the financial pinch of fighting the Home Office for so long, and was not prepared to take the risk of pursuing indemnity costs for the "Reply" and the OPH, despite our positive advice.


James Packer was the lead lawyer for Duncan Lewis Solicitors with assistance from Klevis Taho. Tim Buley QC of Landmark Chambers was counsel instructed in the case.

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