Ahmed (general grounds of refusal – material non-disclosure)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge McKee |
| Judgment Date | 19 August 2011 |
| Neutral Citation | [2011] UKUT 351 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 19 August 2011 |
[2011] UKUT 351 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Upper Tribunal Judge McKee
For the Appellants: Mr Sharaz Ahmed, instructed by Khans Solicitors
For the Respondent: Mr Kyri Kyriacou, Senior Presenting Officer
Ahmed (general grounds of refusal — material non-disclosure) Pakistan
In order to have made false representations or submitted false documents so as to attract a mandatory refusal under Part 9 of the Immigration Rules, an applicant must have deliberately practised ‘Deception’, as defined at para 6. Failing to disclose a material fact is also classed as ‘Deception’. It follows that such failure also requires dishonesty on the part of the applicant, or by someone acting on his behalf.
The appellant arrived here from Pakistan on 3 September 2009 with entry clearance as a student, which conferred leave to enter until 31 December 2010. On 21 August 2010 the appellant, who has been living in Ilford, travelled for the first time by rail to Gravesend, thinking that he could use his Oyster Card, which still had £15 in credit. On the way there, however, a ticket inspector told him that his Oyster Card was not valid for travel on that route, and that he ought to have bought a ticket in London before setting off. The appellant supplied his name and address, and in due course he received a letter from North Kent Magistrates' Court, asking whether he admitted having travelled on the railway without paying the fare. The appellant wrote back with the requisite admission, and on 11 October 2010 a “Notice of Fine and Collection Order” was sent to him by the Magistrates' Court. He had been fined £80, to which were added compensation of £4.50, a victim surcharge of £15 and costs of £35, making a total of £134.50. That the appellant did not realize that he now had a criminal conviction was accepted by Immigration Judge Talbot when the current appeal came before him the following year.
On 16 December 2010 the appellant made an in-time application for further leave to remain. Among the questions posed in the Tier 4 (General) Application Form, such as whether the applicant was guilty of war crimes or genocide, was question E1:
“Has the student had any criminal convictions in the United Kingdom or any other country (including traffic offences) or any civil judgments made against them?”
To this question the appellant ticked the ‘No’ box. When he received the decision on his application, in a letter dated 11 February 2011, he was told that he had scored 30 points for Attributes and 10 points for Maintenance, which would normally have satisfied the requirements of the Points Based System. But paragraph 245ZX(a) of HC 395 stipulates that “ the applicant must not fall for refusal under the general grounds for refusal”, and the application was indeed said to fall for refusal under one of those general grounds, namely paragraph 322(1A). This provides a mandatory ground on which variation of leave to remain is to be refused:
“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 refusal letter does not cite any of the above wording, and does not specify which of the various subdivisions of the rule is being relied on to justify refusal, but simply tells the appellant that his application has been refused under paragraphs 322(1A) and 245ZX(a) of the Immigration Rules because of the answer which he gave to question E1 of his Application Form. “ I am satisfied”, says the author of the letter, “ that you have used deception in this application.”
An appeal was duly lodged with the First-tier Tribunal, and when it came before Immigration Judge Talbot on 15 April 2011 copies were handed up of FW (Paragraph 322; untruthful answer) Kenya [2010] UKUT 165 (IAC), the head note to which reads as follows:
“When a direct question is asked, and answered untruthfully, there is both a false representation and a non-disclosure; and it is not open to an Appellant who gives an untruthful answer to a direct question in an application form to say that the matter was not material.”
This was a case, very similar to the instant case, in which an applicant had wrongly answered ‘No’ to question E1 on his application form, asking whether he had any criminal convictions. This was said in the refusal letter to be both a false statement and the non-disclosure of a material fact, the author of the letter also being satisfied that the applicant had “used deception”. The Vice-Presidential panel took the view, which was the received wisdom at the time, that it did not matter whether the maker of false representations had made an honest mistake. It was enough that the information given was inaccurate. This view was corrected in Adedoyin – also known as AA (Nigeria) [2010] EWCA Civ 773, holding at paragraph 76 that “ [d]ishonesty or deception is needed, albeit not necessarily that of the applicant himself, to render a ‘false representation’ a ground for mandatory refusal.” It was to AA (Nigeria) rather than FW (Kenya) that Judge Talbot turned for guidance, and having found that the appellant had not been dishonest when he ticked the ‘No’ box on the application form, he concluded that he had not made a ‘false representation’ in the required sense.
The judge then turned, however, to the ‘material non-disclosure’ aspect of paragraph 322(1A). Although the refusal letter was silent as to which aspect of the rule was being relied on, saying only...
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The Queen (on the application of Bijendra Giri) v Secretary of State for the Home Department
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