Li v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales |
| Judgment Date | 07 November 2018 |
| Neutral Citation | [2018] EWCA Civ 2411 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 2018 |
| Docket Number | Case No: C7/2016/1957 |
[2018] EWCA Civ 2411
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Craig
JR/14232/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
THE SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Sales
Case No: C7/2016/1957
Ramby De Mello (instructed by Christine Lee & Co) for the Appellant
Emma Dring (instructed by Government Legal Department) for the Respondent
Hearing date: 25 October 2018
The Senior President:
Introduction
This is an appeal against the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) to refuse permission to apply for judicial review of the decision of the Secretary of State made on 21 August 2015. Permission to appeal was granted by Treacy LJ in relation to one of the two grounds of appeal relied upon by the appellant. The appellant applied to renew the second ground and Beatson LJ directed that the application to renew ground two should be listed with this appeal.
Factual and procedural background
The appellant is a national of China.
On 5 May 2014 the appellant applied for entry clearance as a Tier 1 (Investor) migrant. She wanted to bring her son with her, who was born in 2007. In order to do this the appellant was required to submit her son's birth certificate. She asserts that she had a birth certificate for her son but that it did not state his father's name. She was given advice that she should obtain a copy of the birth certificate listing both parents' names. It appears that she instructed an agent to obtain or help to obtain a new birth certificate for her and it was this birth certificate that was submitted with her application.
Her application was refused under paragraph 320(7A) of the Immigration Rules on the basis that the birth certificate was a false document. There was an administrative review of the decision. In support of her case on the review the appellant provided a letter, purportedly from a hospital, confirming that the birth certificate was genuine. The reviewing officer concluded (for reasons that are clearly set out in the documentation) that the birth certificate was false and the supporting letter was also false.
On 22 September 2014 the applicant made another application for entry clearance as a Tier 1 (Investor) migrant. This was rejected under paragraph 320(7B) on the basis that in her previous application for entry clearance she had provided a false document, the son's birth certificate.
On the 27 November 2014 the appellant attempted to enter the UK but was denied entry at the port under paragraph 320(7B) of the Immigration Rules.
On 4 August 2015 the appellant applied again for entry clearance as a Tier 1 (Investor) migrant. The application was refused on 21 August 2015 under paragraph 245EB (insufficient points under the points-based system) and again under paragraph 320(7B) of the Immigration Rules.
The appellant applied to judicially review this decision.
Permission to apply for judicial review was refused at an oral hearing by Upper Tribunal Judge Craig.
Immigration Rules and relevant legislation
Paragraph 6 of the Immigration Rules is as follows:
“In these Rules the following interpretations apply:
‘Deception’ means making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.
‘Illegal Entrant’ has the same definition as in section 33(1) of the Immigration Act 1971.”
Section 33(1) of the Immigration Act 1971 is in the following terms:
“‘entrant’ means a person entering or seeking to enter the United Kingdom and ‘illegal entrant’ means a person—
(a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or
(b) entering or seeking to enter by means which include deception by another person,
and includes also a person who has entered as mentioned in paragraph (a) or (b) above”
Paragraph 245EB of the Rules states that:
“To qualify for entry clearance or leave to remain as a Tier 1 (Investor) Migrant an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance will be granted. If the applicant does not meet these requirements, the application will be refused.”
Paragraph 320 of the Rules is as follows:
“In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2–8 of these rules, and subject to paragraph 321 below, the following grounds for refusal of entry clearance or leave to enter apply:
…
(7A) 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 or in order to obtain documents from the Secretary of State or a third party required in support of the application.
(7B) where the applicant has previously breached the UK's immigration laws (and was 18 or over at the time of his most recent breach) by:
…
(c) being an Illegal Entrant;
(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);”
Decision appealed
Judge Craig held that the judicial review application could not succeed and refused permission to apply for judicial review. The judge's decision was based on three reasons:
i) there was a rational basis for concluding that the birth certificate and the letter from the hospital were false.
ii) for the purposes of paragraph 320(7B)(d) it did not matter if it was the dishonesty of the appellant or a third party so long as the maker of the document acted dishonestly. The judge purportedly relied upon AA (Nigeria) v SSHD [2010] EWCA Civ 773 to hold that a document was false if it contained an element of dishonesty. He held that the dishonesty did not have to be attributable to the appellant so long as it was attributable to the maker of the document and
iii) the application would have failed anyway because the appellant failed to provide the necessary information to secure enough points under the points based system (under paragraph 245EB).
The appellant challenges the judge's second reason in her first ground of appeal.
Grounds of appeal
The appellant has two grounds of appeal:
i) The judge erred in law in holding that paragraph 320(7B)(d) applied to the previous deception used by third parties without the appellant's knowledge and
ii) The judge was wrong to find that paragraph 320(7B) is engaged by previous deception which is not material to the current application for entry clearance.
Permission to appeal was only granted in relation to the first ground of appeal. The application to renew the second ground of appeal has been listed with this appeal.
Preliminary discussion
The appellant was refused entry clearance under two separate paragraphs of the Immigration Rules: 245EB and 320(7B). Mr De Mello who appears on behalf of the appellant before this court very properly accepts that he cannot challenge the refusal of entry under paragraph 245EB which was the consequence of a straightforward failure to provide enough information to secure enough points having regard to the particulars that are described in that paragraph of the Rules.
In written submissions, Ms Dring, who appeared for the Secretary of State, pursued an argument that the whole appeal was academic because there also existed an option for the merits to be decided against the appellant under rule 320(7B)(c). In oral submissions, Ms Dring, on instructions, did not pursue that point for reasons which need not detain this court. Mr De Mello argued forcefully against the application of rule 320(7B)(c) as a matter of principle and on the facts. Given the joint position of the parties, it suffices to say that this court has not heard argument from each party on the other's interpretation of rule 320(7B)(c) and it is neither...
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