Jurisdiction(s):
United Kingdom

Chaudhry v SSHD: Four-stage test for BNA 1981 s40(3) appeals; FTT fact-finding restored; causation/discretion public law only; HRA s6 merits review; Ciceri/Chimi overturned

Published on: 07 February 2025

Published by a LexisNexis Immigration expert

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Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16

What are the practical implications of this case?

The effect of this decision is that the earlier stance of the Upper Tribunal (IAC) in Ciceri v SSHD [2021] UKUT 238 (IAC) and Chimi v SSHD [2023] UKUT 115 (IAC) has been set aside. Going forward, whether the statutory gateway is made out — namely fraud, false representation, or concealment — will be determined by the First-tier Tribunal (FTT) on a full merits footing. In other words, the FTT will undertake primary fact-finding to decide if such conduct occurred. The shift is of considerable day-to-day importance. Before this ruling, the FTT was confined to asking only whether the SSHD had ‘materially erred in law’ when addressing the statutory precondition, which was the approach in Chimi. The court also confirmed that the Secretary of State for the Home Department (SSHD) carries the evidential burden, to the civil standard of the balance of probabilities. Collectively, these points represent a clear move away from the position that had prevailed under Ciceri and Chimi for an extended period, and it was, accordingly, noteworthy that there was consensus between the parties in...

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