AA (Nigeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Longmore,Lord Justice Jacob |
| Judgment Date | 06 July 2010 |
| Neutral Citation | [2010] EWCA Civ 773 |
| Docket Number | Case No: C5/2010/0051 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 2010 |
Court of Appeal, Criminal Division
Before Lord Judge, Lord Chief Justice, Mr Justice David Clarke and Mr Justice Lloyd Jones
When a statute was not notified to the European Commission, but should have been, it was not incumbent upon the court to re-open the cases of defendants who had been convicted under it unless their convictions had given rise to substantial injustice.
TheCourt of Appeal, Criminal Division so held when dismissing appeals 20 months out of time by Nikolas Budimir and Nicholas Rainbird against their convictions on March 10, 2008 at Bournemouth Crown Court (Judge Harvey Clarke) on their pleas of guilty to six counts of having in their possession for the purpose of supply a video recording for which no classification certificate had been issued, contrary to section 10(1) of the Video Recordings Act 1984.
Sitting also as the Queen's Bench Divisional Court, their Lordships dismissed an application by Interfact Ltd, under rule 52.17 of the Civil Procedure Rules, to re-open the dismissalUNK ([2005] EWHC 995 (Admin)) of its appeal by case stated against conviction on April 27, 2004 by Liverpool Ju stices on 44 counts involving the supply of R18 certificated videos from, rather than in a licensed sex shop, contrary to section 12(1) of the 1984 Act.
Mr Nigel Peters,QC, for Budimir and Rainbird; Lord Pannick,QC and Mr David Lowe for Interfact; Mr John McGuinness,QC, for the Crown; Miss Marie Demetriou for the Secretary of State for Culture, Media and Sport, intervening.
THELORDCHIEF JUSTICE, giving the reserved judgment of the court, said that on August 24, 2009, her Majesty's Government had announced that the 1984 Act should have been notified under Directive 83/189/EEC. It had not been. In a series of judgments the Court of Justice of the European Communities had established that breach of the obligation to notify under Directive 83/189 rendered non-notified technical regulations inapplicable so that they were unenforceable against individuals. Against that background the applicants sought the quashing of their convictions.
The House of Lords and the Court of Appeal had consistently held that, in analogous circumstances, where a conviction was based on the law as it was then understood to be, a subsequent change of the law or in the understanding of the law would not be a valid ground for leave to appeal out of time, unless substantial injustice had been done. There would be no difference of approach, for the purposes of the present applications, to applications in theDivisional Court.
Their Lordships were wholly unpersuaded that the convictions in these cases had given rise to any substantial injustice.
It was clear from the jurisprudence of the European Court of Justice that failure to notify did not have the effect of rendering the national measure a nullity, void or non-existent. As a matter of national law, therefore, these convictions were valid unless and until they were set aside.
The jurisprudence of the European Court of Human Rights did not impose upon contracting states an obligation to undo all the consequences of a national law which was later held to be incompatible with the European Convention on Human Rights. Rather, it acknowledged that the principle of legal certa inty dispensed with any such need.
In their Lordships' judgment these convictions remained safe and the appeals would be dismissed, although a question of law would be certified for the consideration of the Supreme Court.
[2010] EWCA Civ 773
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Senior Immigration Judge D E Taylor
Before: Lord Justice Rix
Lord Justice Longmore
and
Lord Justice Jacob
Case No: C5/2010/0051
IA/07553/2009
Mr Zane Malik (instructed by Malik Law) for the Appellant
Mr Ben Collins (instructed by Treasury Solicitors) for the Respondent
Hearing date : Thursday 25 March 2010
Lord Justice Rix:
This is the appeal of Mr Adekele Adedoyin, a citizen of Nigeria who has spent many years as a student in England, against the decision of the AIT upholding the refusal of the Secretary of State to grant Mr Adedoyin leave to remain as a Tier 1 (post-study work) migrant. The relevant rule within the Immigration Rules (HC 395) is paragraph 322(1A) which is headed “Refusal of variation of leave to enter or remain or curtailment of leave” (the “rule”). However, reliance is principally placed upon a letter dated 4 April 2008 from Mr Liam Byrne MP, minister of state at the Home Office, addressed to ILPA (the Immigration Law Practitioners' Association), which it is submitted should lead to a different interpretation of the rule from that which was adopted by the AIT (“the letter”). There is also an issue under article 8 of the European Convention on Human Rights.
The rule states that leave to remain in the United Kingdom “is to be refused”–
“(1A) 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.”
The false representation which led to the refusal of leave to remain in the case of Mr Adedoyin was his answer “No” to the question, raised in the relevant application form which he signed on 25 November 2008, –
“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?
Note 1 – Convictions spent under the Rehabilitation of Offenders Act need not be disclosed. More information about the Act is given toward the end of the section.”
In fact, Mr Adedoyin had been convicted on three occasions, twice in 2004 and a third time in 2006, of driving without a licence or insurance. His evidence, however, has been that he did not realise that these were criminal convictions, or he thought that they were spent. He says that he did not intend to deceive the authorities.
The AIT held that under the rule any question of dishonesty or of an intention to deceive is irrelevant, and that it is sufficient that a representation has been made which is not true. Therefore it did not make any finding about Mr Adedoyin's state of mind. It also rejected Mr Adedoyin's reliance on article 8.
The letter, which was also or even primarily concerned with the consequences of a different rule, albeit a rule in the same terms as the rule with which this appeal is concerned, namely paragraph 320(7A), said inter alia that –
“The new Rules are intended to cover people who tell lies either on their own behalf or that of someone else in an application to the UK Borders Agency. They are not intended to catch those who make innocent mistakes in their applications.”
“False”
It is a remarkable feature of a language as rich as English that the word “false” has two meanings. Thus its first meaning (the Concise Oxford Dictionary) is “wrong, incorrect” and its second meaning is “lying, deceitful, treacherous, unfaithful to; deceptive; spurious, sham, artificial…”. So it can be used to denote something which is merely not in accordance with the true facts, or it can be used to denote something which is also dishonest (or at least the product of artifice). Lawyers certainly are familiar with the two uses. However, our civil law tends to prefer the expression “misrepresentation” to “false representation” in order to emphasise that an untrue representation need not be dishonestly made. Misrepresentations may be innocent, or fraudulent, or negligent. That it seems to me is a wise precaution. In the criminal law, the word “false” on the whole (but I am cautious about the dangers of generalisation) is used in the second sense of the word. Thus “false accounting”, “making false allegations”, “false statements on oath”, “false instruments” (to pick up expressions from the index of Archbold) are all used in a context where the mens rea element demands something more than mere inaccuracy.
It appears, however, that in the context of immigration law, “false representation” has been thought of as being used in the first, and morally neutral sense of the word. Thus, the following passage occurs in Tahzeem Akhtar v. Immigration Appeal Tribunal [1991] Imm AR 326 at 332/3 per Staughton LJ:
“…a false representation is one that is inaccurate or not in accordance with the facts. I say that, first, from the ordinary use of the English language and, secondly, because it seems to me that that interpretation squares more easily with the words in the rule “whether or not to the holder's knowledge”. I agree that there is an alternative explanation for those words being in the rule, that is to say, to cover the case when somebody else has made a fraudulent representation. But to my mind they were inserted to show that representations, either by the holder or by anybody else, need not have been fraudulent…”
The circumstances of Mr Adedoyin's application
Mr Adedoyin was born on 18 April 1982. He entered the UK on 30 December 1999 as a student and received numerous extensions of that leave culminating in an extension dated 28 December 2007 for leave to remain until 31 January 200On 26 November 2008, within time, he made the application which is the subject-matter of this appeal.
His evidence discloses...
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