The answer to this question is complex and depends on a wide array of factors including the type of immigration application that is being considered, the nature of the weakness in question and whether the UK’s immigration decision-making process is deemed to be “intrinsically fair”. This question has required judges to strike a balance between administrative efficiency (i.e. ensuring the UK’s immigration system operates smoothly) and ensuring fairness (i.e. ensuring visa applications are decided fairly). The latter consideration is of particular importance to the UK’s common law traditions and is often the very reason why people choose to migrate to the UK in the first place.
The common law requires public bodies (including the Home Office) to act fairly when making a decision so as to uphold the rule of law. The most basic duty imposed on public bodies is that their decision-making procedures must be fair – a concept referred to as “procedural fairness”. To discharge this obligation, the public body’s decision-making processes must, amongst other things, be rational, transparent and unbiased. They must also offer people the opportunity to make representations before making an adverse decision against them, give people the chance to answer the case against them and give people the information they require in order to do so. However, the recent case of R(Taj) v The Secretary of State for the Home Department  EWCA Civ 19 has confirmed that the latter three elements of procedural fairness only apply to visa applicants under the Points Based System in certain circumstances, depending on the nature of the weakness in their visa applications. The case of Taj is explained in further detail below.
To answer the question posed above, we outline below several general non-exhaustive categories of weaknesses which could determine whether the Home Office has an obligation to notify you.
1) Weaknesses stemming from simple error, omission, or where the caseworker requires further evidence before they can make a decision
In these circumstances, the Home Office’s Evidential Flexibility policy may be applicable, depending on which visa route the application was made under.
The Evidential Flexibility policy requires the Home Office to request evidence from the applicant if the weakness in their application stems from an innocent (non-deceptive) mistake. An example of this would be where the supporting documentation included a sequence of bank statements from January to December, but the statement for March was missing. In such a case, the Home Office may request that you provide the statement for March within a defined timeframe.
2) Weaknesses stemming from factors beyond the applicant’s control
Depending on the applicant’s individual circumstances, some material weaknesses in their application may fall outside their control such as in the case of R (Pathan) v Secretary of State of for the Home Department  UKSC 41 where the applicant applying for a Tier 2 (General) visa had their Certificate of Sponsorship (‘CoS’) revoked by the Home Office whilst the application was pending (the CoS was revoked as a result of the applicant’s sponsor employer losing their sponsor licence).
The court in Pathan decided that it was procedurally unfair for the Home Office not to notify the applicant of this weakness before refusing their application. The court in Taj took the view that the revocation of the CoS in Pathan was a weakness that stemmed from matters beyond the applicant’s control (i.e. only the Home Office could revoke a CoS) and the applicant had no way of knowing (i.e. access) that the revocation had taken place (the two-stage test). The court in Taj also saw the weakness in Pathan as one in which the applicant was not at fault and therefore perhaps more worthy of being notified and given a chance to make representations (despite the hopeless nature those representations). The two-stage test laid out in Taj appears to raise the question of what would happen in a situation similar to Pathan where an applicant had access but not control (e.g. they knew about the issue but couldn’t do anything about it), or an applicant had control but not access (e.g. they didn’t know about the issue and therefore didn’t do anything about it).
3) Weaknesses stemming from factors within the applicant’s control
The court in Taj decided that the applicant’s weakness fell into this category. The applicant in question, Mr Taj, was a Tier 1 (Entrepreneur) applicant who had failed the genuineness test when applying for permission to remain (note that the successor of this visa – the Innovator visa – incorporates the same requirement at paragraph INN 4.1 of Appendix Innovator of the Immigration rules). The reason Mr Taj failed was because his evidence, interview, and on-site inspection raised a number of inconsistencies which were considered insufficient to prove his application was genuine. The court in Taj took the view that Mr Taj had control over the evidence he submitted, had ample opportunity to prepare for his interview and knew about the genuineness test through the “open and transparent” Immigration Rules. As a result, the court concluded that he was therefore not entitled to be notified of the weakness in his application or given a chance to remedy it. It could be argued that the court saw that the weaknesses in Mr Taj’s application were of his own making. Indeed Mr Taj’s evidence included easily identifiable weaknesses such as the address and names on his customer contracts not matching Companies House records and performing poorly in his interview.
It could be suggested that these weaknesses would not have been present if Mr Taj’s application had been professionally prepared. Commentators have also questioned the extent to which the Immigration Rules are truly “open and transparent” with regards to applicants without legal training or counsel. It could be argued, in fact, that the message the court has actually advanced in Taj is the importance of retaining qualified legal advisors when preparing complex visa applications such as the Entrepreneur or Innovator visa.
Gherson has a wealth of experience in dealing with UK visa and immigration matters. If you have any specific questions or queries in respect of your particular circumstances, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.