FW v Secretary of State for the Home Department

This is an appeal against an order of the Upper Tribunal made on the reconsideration of the appellant’s appeal against the Secretary of State’s refusal of his application for leave to remain in this country.

The appellant originally came to the United Kingdom in January 2007 as a student. He was granted leave to remain until 30^th April 2008, which was subsequently extended on various occasions to 24^th June 2009. On 4^th June 2009 he applied for further leave to remain as a Tier 1 (Post Study Work) Migrant. The application form that he was required to complete included the following question:

“E1. Has the Applicant had any criminal convictions in the United Kingdom or any other country (including traffic offences) or any civil judgments made against them?”

and attached to the question was the following Note:

“Note 1: Convictions spent under the Rehabilitation of Offenders Act 1974 need not be disclosed. More information about the Act is given towards the end of this section.”

The appellant answered that question “No”, but in fact in June 2007 he had been convicted of driving with excess alcohol in his blood, in respect of which he was fined and disqualified from driving for a period of 12 months.

Paragraph 322 of the Immigration Rules provides as follows:

“Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused

. . .

1(A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application.”

By a letter dated 9^th July 2009 the Secretary of State refused the appellant’s application on the grounds that he had failed to disclose his conviction. She stated in that letter that she regarded his answer to Question E1 as false and that the fact of his conviction was material to his application. She also stated that she was satisfied that the appellant had used deception in his application.

The appellant lodged an appeal against that decision and the matter came before Immigration Judge Page in the Asylum and Immigration Tribunal (“the AIT”). The appellant was represented at the hearing by counsel, Mr. Nasim, who also appeared for him before the Upper Tribunal and on this appeal. He argued that the appellant had not withheld the information about his conviction deliberately; he thought that his conviction was spent because by the time he completed the application form he had paid the fine and the period of disqualification had expired.

In paragraph 9 of his determination promulgated on 18^th September 2009 I.J. Page found that the appellant had chosen not to answer Question E1 truthfully but had withheld the information to enhance the chance of the application’s being granted. He reached that conclusion having heard the appellant give evidence and having asked him various questions about the contents of the form and the accompanying guidance and having formed a view about his ability to understand written English. He also had regard to the appellant’s educational background and the way in which he had completed the remainder of the form, which in his view showed that he had thought carefully about his answers. In the light of those matters he rejected as incredible the appellant’s evidence that he believed that a conviction acquired in 2007 had already become spent in June 2009. He also rejected the argument that the existence of the conviction was not material to the appellant’s application. An alternative argument that the refusal to extend the appellant’s leave to remain would infringe his right to private life under Article 8 of the European Convention on Human Rights was also rejected and has not subsequently been pursued.

The appellant sought and obtained an order for reconsideration of his appeal. Although the reasons given by Senior Immigration Judge Allen for making the order suggested that the AIT may have addressed the wrong issue, the order itself was framed in quite general terms and did not limit the scope of the issues that the appellant was entitled to raise in seeking to persuade the Upper Tribunal that the AIT had made an error of law.

Before the Upper Tribunal the appellant, again represented by Mr. Nasim, argued that the application had been refused solely on the grounds of a failure to disclose a material fact, not on the grounds that the appellant had made a false representation; that the conviction was not a material fact, since, if it had been disclosed, it would not have led the Secretary of State to refuse the application; and that the AIT had failed to give proper consideration to the private life he enjoyed in this country, including the pursuit of a career here.

The Upper Tribunal promulgated its decision on 12^th May 2010, holding that the AIT had not made an error of law. It held that the appellant’s answer to Question E1 constituted both a failure to disclose a fact and a false representation. It also rejected the argument that the conviction was not a material fact. Then, in paragraph 11 of its determination it said this:

“We should add another point on false representations. It was inherent in Mr. Nasim’s submissions that a false representation made innocently ought not to cause paragraph 322(1A) to be applied. We are unable to accept that submission. It does not seem right to us that the Secretary of State ought to grant leave on a false basis , provided only that the falsity was unknown to the applicant. If a false statement is made in an application, the Secretary of State must be entitled to refuse it. That, indeed, appears also to be the effect of the words in parenthesis in paragraph 322(1A) itself.”

Finally, although in his grounds for reconsideration the appellant had sought to challenge as being perverse the finding in paragraph 9 of the AIT’s decision that he had chosen not to answer Question E1 truthfully, the Upper Tribunal recorded in paragraph 12 of its decision that no point had been raised before it on the precise formulation of that paragraph.

Having applied for, and been refused, permission to appeal by the Upper Tribunal, the appellant made an application to this court. The grounds of appeal are excessively long, running to almost four pages, and read more like a skeleton argument, instead of being limited, as they should have been, to a concise identification of the respects in which the Upper Tribunal is said to have erred. However, it is possible to identify the following grounds:

The application for permission to appeal was considered by the Single Lord Justice on paper on 6^th September 2010. In the meantime, on 6^th July 2010 judgment had been given in the case of Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, in which this court held that a representation is “false” for the purposes of paragraph 322(1A) of the Immigration Rules only if it has been made dishonestly. Permission to appeal was given so that the court could consider the effect of that judgment, in particular in relation to paragraph 11 of the Upper Tribunal’s decision.

The starting point of Mr. Nasim’s submissions was that in her refusal letter of 9^th July 2009 the Secretary of State had relied only on a failure by the appellant to disclose a material fact as a ground for refusing his application and had not treated him as having made a false representation. Accordingly, he submitted, both I.J. Page and the Upper Tribunal had been wrong to dismiss the appeal on the grounds that the appellant had made a false representation.

The relevant parts of Secretary of State’s letter read as follows:

“In your application you said that you have never been convicted of a criminal offence.

Failure to disclose material fact

I am satisfied that the statement was false and I am satisfied that this fact was material to the application because it is a mandatory field on the application form for which you signed a declaration stating that the information given by yourself was true.

As material facts were not disclosed in relation to your application, it is refused under paragraph 322(1A) of the Immigration Rules.”

There then followed a passage dealing with the appellant’s failure to provide sufficient evidence to show that he satisfied the financial requirements of the Immigration Rules, which I need not quote because it is no longer relevant. The letter then continued:

“For the above reasons I am also satisfied that you have used deception in this application.”

In my view it is clear that the Secretary of State was making two points in her letter in relation to the appellant’s answer to Question E1: that it constituted a false statement and also a failure to disclose a material fact. That much appears from the first of the two paragraphs under the heading “Failure to disclose material fact” and is reinforced by the final sentence quoted above. Mr. Nasim sought to place some reliance on the heading itself, but it is quite clear that it was not intended to identify exhaustively the grounds that she relied on, because there follow the paragraphs dealing with the appellant’s financial position which were relied on as a completely separate ground for refusing the application. Moreover, the Secretary of State had also made it clear that she considered that the appellant had acted dishonestly. No other meaning can reasonably be attached to the word “deception”. In the circumstances that cannot have referred to the evidence relating to his financial position.

In his grounds of appeal to the Asylum and Immigration Tribunal the appellant set out his case, namely, that at the time of completing the form he had honestly believed that his conviction was spent and that the error had arisen as a result of an innocent mistake. By doing so he introduced into the proceedings the issue of his own honesty and invited the tribunal to make a finding about his state of mind. Quite why he took that course is unclear, but it may have been because paragraph 4.9 of the Immigration Directorates’ Instructions suggests that an application should not be refused if the information that the applicant has failed to disclose is not relevant to the decision to be made on the application and the failure to disclose is the result of an innocent mistake. At all events, having invited the tribunal to consider the question, it is not open to him now to complain that it did so.

I.J. Page clearly thought that whether a false statement had been made was the more important aspect of the question, because he dealt with it at length in paragraphs 4-9 of his decision, dealing with the issue of materiality quite briefly in paragraph 11. For the reasons I have already given I am satisfied that the issue was properly before the tribunal, but in the light of Mr. Nasim’s submission to the contrary it is interesting to note that there is no reference in the decision to any submission on the part of the appellant that the tribunal ought not to consider and decide it.

Having heard evidence, most importantly from the appellant himself, I.J. Page found that he had deliberately given a false answer to Question E1 in order to bolster his application and if that finding stands it is fatal to the present appeal. That is why Mr. Nasim was forced to argue that that finding was perverse in the sense that there was insufficient evidence to support it. As part of that submission he contended that it was wrong for I.J. Page to express himself as being satisfied on the balance of probabilities and drew our attention to the decision of the House of Lords in Re B [2008] UKHL 35, [2009] 1 A.C. 11, in which Lord Hoffman reviewed the authorities concerning the standard of proof in civil cases.

In my view the Immigration Judge was right to proceed on the basis that proof on the balance of probabilities was all that was required. As Lord Hoffmann made clear in Re B, that is the standard which applies in all civil proceedings. What evidence will be sufficient to justify a finding of fact on the balance of probabilities may depend on the nature of the issue before the court. Thus, the court may be more reluctant to find that a person has acted dishonestly than it would be to find that he has acted honestly and may require more cogent evidence before reaching that conclusion. However, such questions are concerned with whether there is evidence capable of supporting a particular finding, not with the standard of proof as such.

It can often be difficult to decide whether a person has acted dishonestly, because the person accused of doing so will usually protest his innocence, leaving the tribunal of fact to draw inferences from other evidence. In the present case the conviction was very recent and the appellant had been directed by the notes in the form to a source of information that would have made it clear that it was not spent. The tribunal had the opportunity to investigate with the appellant his level of comprehension and his state of mind and by questioning him to test his assertion that he honestly believed that the conviction was spent. There is nothing in the tribunal’s reasoning to suggest that it was led too easily to its conclusion that he had acted dishonestly, nor can it be said that there was insufficient evidence to support its decision. The recent date of the conviction spoke for itself: on the face of it there was no reason why any reasonable person should have thought it was spent. The appellant put forward an explanation which the Immigration Judge was entitled to regard as implausible. In my view I.J. Page was entitled to find that the appellant had deliberately given a wrong answer to the Question E1. In those circumstances the materiality of the conviction becomes irrelevant. The case fell within paragraph 322(1A) of the Immigration Rules by reason of the fact that the appellant had knowingly made a false statement and the Secretary of State was right to refuse his application for leave to remain.

The Upper Tribunal reached the same conclusion as the AIT for essentially the same reasons and accordingly held that it had not made an error of law. In paragraph 6 of its decision it quoted paragraph 9 of the AIT’s decision and in paragraph 9 of its own decision it said:

“It is fair to say that Mr. Nasim had some difficulty in showing how the application should have been granted under the rules. His submissions were devoted to the materiality of non-disclosure but he was unable persuasively to explain how, given the false representation, the application could have succeeded. The truth of the matter is that this is a case where there is no essential difference between false representation and non-disclosure. The non-disclosure was a false representation, because it was an answer to a direct question. The answer “no” both was false and constituted a failure to disclose what would have been disclosed if the question had been answered truthfully. . . ”

The Upper Tribunal made its decision at a time when it was thought that the word “false” in paragraph 322(1A) of the Immigration Rules meant no more than “untrue”, a view reflected in paragraph 11 of the decision, to which I have already referred. That was wrong, as the decision in Adedoyin v Secretary of State for the Home Department has since made clear, but the error is immaterial in the light of the AIT’s finding that the appellant answered the question dishonestly. On any view, therefore, the appellant made a false representation and leave to remain was properly refused under the terms of paragraph 322(1A). The Upper Tribunal was correct to hold that the decision of the AIT contained no material error of law. I would therefore dismiss the appeal.

I agree.

I also agree.