Note that
AR2.10 Administrative review is not pending when:
- (a) an administrative review waiver form has been signed by an individual in respect of whom an eligible decision has been made. An administrative review waiver form is a form where the person can declare that although they can make an application in accordance with paragraphs 34M to 34Y of these Rules, they will not do so;
- (b) administrative review has previously been pending and the individual in respect of whom the eligible decision has been made submits a fresh application for entry clearance, leave to enter or leave to remain. In this case the day prior to the day on which the fresh application is submitted is the last day on which administrative review is pending.
Moreover, I think her AR is likely to fail if she did not mention a previous refusal when asked and there was no case working error.
If they had not refused under
9.7.2, then it may be a good sign as they may have ruled out
9.8.7? Else, there is no guarantee that they will even look at another application before
automatically refusing it under 9.7.2 and 9.8.7.
However, if submitting a new application with new evidence, then perhaps also cite
Naidu?
52.
The flaw of making a decision without taking account of a relevant consideration is generally regarded as one of the limbs of the Wednesbury principles and so explained. It should, however, not be forgotten that in his rigorous analysis in Council for Civil Service Unions v Minister for the Civil Service
[1985] AC 374 (“the GCHQ case”) Lord Diplock put this flaw under his rubric of “illegality”. However it is classified, the failure to have regard to that material in my judgment took the Entry Clearance Officer and thus the Secretary of State outside the wide ambit of her power. I therefore conclude that the appellant succeeds on ground 2, albeit on its Wednesbury limb and for the reasons I have given rather than the procedural fairness limb, which was the primary way in which the case for him was put in the written and oral submissions. It is thus not necessary to decide whether, had the Entry Clearance Officer considered and taken account of the evidence before him on the second occasion, it would have been reasonable for him to conclude that the document submitted with the first application was a false document and that deception was used in that application. It suffices that it was not inevitable that he would have so concluded. For these reasons, I would allow this appeal.
So do include any overwhelming evidence to refute any possible/potential deception allegations with any new applications.
