LONDON: A UK court of appeal has upheld a Home Office decision to cancel the 10-year multiple-entry visit visas of Bahria Town founder Malik Riaz and his son, Ahmed Ali Riaz, on the grounds that their “exclusion from the UK is conducive to the public good”.

The Home Office decision to cancel their visas was taken after the top immigration body considered the National Crime Agency’s (NCA) investigation and settlement of £190 million with Mr Riaz in 2019; Supreme Court judgements concerning Bahria Town in May 2018 and March 2019; a Joint Investigation Team (JIT) report probing money deposited by Bahria Town into fake accounts and a National Accountability Bureau (NAB) reference filed in April 2019 linking Bahria Town to an investigation into Karachi Land Developments.

Read: SC accepts Bahria Town Karachi's Rs460bn offer, halts NAB references

While rejecting the appeal, the UK court judgement notes that the conclusion of the Home Office that Mr Riaz and his son have been involved with corruption and financial/commercial misconduct was founded on their involvement in the affairs of Bahria Town — a company owned and run by the appellants’ family and described as the largest property developer in Asia.

Both the court and Home Office heavily relied on SC judgements and orders, NAB inquiries and the JIT report linked to Bahria Town.

Despite multiple challenges filed by Bahria Town owner and son, Home Office decision to cancel visit visas stands

Timeline of events

Mr Riaz and his son had held 10-year visit visas to the UK valid till July 28, 2021 and May 18, 2021, respectively. The Home Office cancelled the visas on December 10, 2019, a week after the NCA announced its probe and settlement with the Bahria Town founder.

In attempt to resolve a dispute before court proceedings are initiated, Mr Riaz’s lawyers filed a pre-action protocol (PAP) letter to the Home Office, which took a fresh cancellation decision against their visas on January 31, 2020.

Subsequently, they filed a judicial review application to the Upper Tribunal (Immigration and Asylum Chamber). A judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision made by a public body, in this case, the Home Office. On November 17, 2020, the tribunal dismissed Mr Riaz’s claim for a judicial review, and found no wrongdoing in how the Home Office made its decision about the visas’ cancellation.

Mr Riaz and his son then mounted an appeal on seven grounds in the Royal Courts of Justice that upheld the tribunal’s decision on the judicial review.

A detailed judgement outlining the grounds of appeal, the evidence considered by the Home Office as well as the decision taken to cancel the visas was published by the court on November 26.

Immigration law and Home Office decision

The judgement features the letters written by the Home Office to Mr Riaz and his son informing them of the decision to cancel their visas.

One such letter reads, “…whilst there has not been a criminal conviction against you I am satisfied on the balance of probabilities that you have been involved with corruption and financial/commercial misconduct. As a result, having regard to the UKs commitment to combat corruption and financial crime, I believe that your exclusion from the UK is conducive to the public good due to your conduct, character and associations.”

The judgement notes that the conclusion of the Home Office that Mr Riaz and his son have been involved with corruption and financial/commercial misconduct was founded on their involvement in the affairs of Bahria Town.

According to the Home Office, an exclusion decision is a personal decision of the Secretary of State, on the ground that it is conducive to the public good. This means that it is undesirable to admit the person to the UK because they pose a threat to UK society.

The appellants’ visas were cancelled under V 9.1 and V 9.6 of Appendix V of the Immigration Rules read with paragraphs V 3.3. The Home Office rules note that a person does not need to have been convicted of a criminal offence for this provision to apply.

In response to their PAP letters, the Home Office wrote, “I have taken into account the fact that these were not criminal proceedings and that the Supreme Court of Pakistan stopped short of making a finding of bribery. However, I consider that the majority judgments of the Court provide strong support for the conclusion that Bahria Town, you and/or your associates benefited financially from the proceeds of illegitimate activities. By way of example, the court judgment features the following quote ‘Grant of land to MDA for an incremental housing scheme proved to be a gimmick to accomplish the agenda of Malik Riaz aiming at his personal enrichment at the cost of the state and the people. It is, thus, a brazen betrayal of the trust of the state and the people and a blatant fraud on the statute’ (Paragraph 12) which strongly supports this conclusion.”

Grounds of appeal

Mr Riaz and his son had challenged the tribunal’s decision on seven grounds. They maintained that 1) the judge wrongly rejected their challenge to the UK government reliance on the SC judgement in concluding that the appellants were involved in corruption; 2) challenge to the respondent’s approach to the SC implementation bench order; 3) challenge to the respondent’s approach to the JIT report in the fake accounts case; 4) challenge to the respondent’s approach to the NAB’s interim reference; (5) challenge to the respondent’s approach to the account freezing proceedings; (6) challenge to the respondent’s cumulative reliance on weak strands of evidence and (7) challenge to the respondent’s failure to acknowledge the differences in the evidence against the appellants.

The judgement summarised the appellants’ case by saying that the rationality challenge is that the decision-maker (Home Office) failed to take into account relevant considerations such as the content and implication of Baqar J’s dissenting opinion in the SC judgment and the fact that the JIT report is said to be superseded by the NAB reference. The appellants also said that the decision-maker took into account irrelevant considerations such as the NCA’s reliance on the same material emanating from Pakistan and Bahria Town’s agreement to pay “a vast sum of money as consideration for a vast amount of land, valued at market price”.

Mr Riaz and his son further maintained that the Home Office and the tribunal wrongly concluded that the majority opinions provided serious and/or cogent evidence of corruption.

The appellants pointed out the allegations contained in the JIT report and the NAB reference were in respect of a separate matter, the fake account case. They argued that the JIT report is no more than a prosecutorial document containing untried and untested allegations and that it makes no mention of Mr Ali, thus it could not be relied upon to conclude he was guilty of alleged offences.

To conclude, Mr Riaz and his son said the individual strands of evidence relied upon by the decision-maker amounted to weak evidence of corruption.

Discussion and conclusion

To conclude, Lady Justice Nicola Davies concluded that in approaching the issue of the exclusion of a person from the UK on the ground that it is conducive to the public good due to the individual’s conduct, character and associations, a broad discretion is accorded to the decision-maker, in this case the Home Office.

The judge applied a civil standard of proof with the qualification that the seriousness of the allegation is to be reflected in the quality of the evidence required which is to be subject to critical and anxious scrutiny.

The judge noted, “I regard the findings that each appellant had a ‘significant association’ with Bahria Town and that ‘on the balance of probabilities, you would have had knowledge of the operations of Bahria Town’ as being logically and reasonably based upon the totality of the evidence before the decision-maker. In my view there are critical findings linking each appellant to the activities of Bahria Town and, following from that, possessing knowledge of the same.”

“It is clear from each letter that the decision-maker considered all three judgments of the Supreme Court dated 4 May 2018. In my judgement, the decision maker was entitled to place substantial weight upon the majority judgments and to the issues and concerns contained therein… It was accepted by the decision-maker that the Supreme Court proceedings were not criminal. It was not the role of the Supreme Court to make findings of specific criminal offences. It is accepted that neither appellant has a criminal conviction in Pakistan or the UK.”

Regarding the JIT report, the judge held, “I accept that the JIT report was a prosecutorial report but that does not diminish the scope of its investigation, nor the detail and analysis which led to its findings. It was a report which was required to be subjected to critical scrutiny by the decision-maker and it was.”

The judge noted that the decision-maker considered separate strands of evidence. “The approach which was properly taken by the decision-maker was to consider the totality of the evidence. The Home Office Guidance states: ‘You must assess if there are cumulative grounds for refusing a person on character, conduct or associations grounds.’ It was open to the decision-maker to consider the cumulative effect of each strand of evidence and in so doing to draw inferences having regard to the whole of the evidence. The totality principle requires relevant evidence to be examined cumulatively and not piece by piece.”

At the end, the judge was “satisfied that the cumulative effect of: i) the evidence and findings set out in the majority judgments of the Supreme Court in May 2018; ii) the significantly increased sum of money paid by Bahria Town for the Karachi land in the 2019 Implementation proceedings; and iii) the detail provided in the JIT investigation, which was consistent with the findings of Khan J and Arab J; of themselves provided evidence of sufficient strength and quality to enable the decision-maker, on the balance of probabilities, to conclude that by reason of each appellant’s involvement with corruption and financial/ commercial misconduct his exclusion from the UK would be conducive to the public good due to the conduct, character and associations of each appellant. Further, it is clear from the detail of each letter that the evidence had been subject to critical scrutiny by the decision maker.”

Published in Dawn, November 28th, 2021