R Giri v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 09 April 2014 |
| Neutral Citation | [2014] EWHC 1832 (Admin) |
| Date | 09 April 2014 |
| Docket Number | CO/7459/2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 1832 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Jay
CO/7459/2011
Mr Z Malik (instructed by MLC Solicitors) appeared on behalf of the Claimant
Mr M Barnes (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is an application by way of judicial review pursuant to which the claimant seeks to challenge a decision of the Secretary of State for the Home Department given on 13 July 2011, first of all to refuse his application to vary his leave to remain on the basis that he failed to disclose a material fact pursuant to paragraph 332(1A) of the Immigration Rules; and, secondly, to refuse future applications for entry clearance in accordance with paragraph 320(7B) on the basis that he had used deception on his application to vary his leave to remain. That decision was reconsidered by the Secretary of State and maintained in a further decision of 10 October 2011. Following a hearing before Mr Philip Mott QC sitting as a Deputy High Court Judge on 16 February 2012, permission to apply for judicial review was granted on a single ground, namely that the Secretary of State's decision was not properly in accordance with paragraph 322(1A) and was thereby unlawful.
The essential factual background to this case is as follows. The claimant is a citizen of the Kingdom of Nepal and was born there on 12 February 1982. On 23 February 2006 he made an application for entry clearance as a student. It seems that he submitted a bank balance certificate and statement of account in support of that application, as he would have needed to do to satisfy the Entry Clearance Officer of the means requirement in the Rules.
On the same day the Entry Clearance officer in Kathmandu sent an urgent request by fax to the relevant bank seeking its assistance, namely whether it could verify the balance certificate and statement of account, which had purportedly emanated from that bank. The document verification report which came from the bank is no longer available. The Secretary of State has explained through a witness statement that the relevant evidence simply does not exist. However, it is clear from the Entry Clearance Officer's refusal decision dated 28 February 2006 that there was, at one stage at least, a document verification report in existence since it is referred to expressly at page 79 of the bundle as part of the refusal of entry clearance decision. The Entry Clearance Officer stated that he was satisfied to a high degree of probability that not all of the documents submitted were genuine, and the application was therefore refused pursuant to paragraph 320(21) of the Immigration Rules.
Undaunted, on 16 August 2006 the claimant made another application for entry clearance as a student. He was interviewed in connection with that application on 29 August 2006 and the relevant interview template has been made available. It appears at page 81 of the bundle. At the start of the document, before the questions and answers are set out, the following appears:
"SUBMITTED FORGED/COUNTERFEIT BANK STATEMENTS LAST TIME, BANK CHECKS CONDUCTED NOW STATE THAT DOCS ARE GENUINE — IS HIS INTENTION GENUINE THO? — HE IS REGISTERED WITH ACCA, INTERVIEW TO CONFIRM INTENTION TO LEAVE UK AT THE END OF HIS PROPOSED STUDIES."
This requires some interpretation. Mr Malik submits that this wording is consistent with his client maintaining that the documents submitted last time, namely in February 2006, were genuine documents. I simply cannot accept that interpretation. What the Entry Clearance Officer is doing is setting out his state of mind before the interview is about to start. He is pointing out that in February 2006 counterfeit bank statements were submitted. He is also pointing out that in relation to the bank documentation submitted on this occasion, namely in August 2006, verification checks with the relevant institution had demonstrated that the documents were genuine. The issue therefore was whether the claimant's intention was genuine, namely whether it was truly his intention to study in the United Kingdom, rather than to seek to come here for a different purpose, and to leave at the end of his proposed studies.
A number of questions were then asked of the claimant. It seems from the answers given that the claimant gave frank and, if I may say so, somewhat respectful, if not deferential, answers. He is not, of course, to be criticised for that. He was asked in terms who was paying for the course here in the United Kingdom and he stated "my father, my mother and my uncle and aunt". Question 13: "Last time you applied for a student visa to study the same course, why was this visa refused?" Then the answer given was, "Do [I think it should say due] to the financial problems sir". This gives the reader some indication that the claimant was well aware that there were difficulties in relation to the evidence he was submitting on the previous occasion. Then question 14 is more specific: "I note that you submitted forged bank documents to show that you have more money than you actually hold, is this correct?" The answer given was, "Yes". That clearly is a reference to what happened in February 2006, not to what was happening in August 2006. Question 15: "Where did you get the forged documents from?" Answer: "From my nephew sir". That was a clear and precise answer and a clear admission that the claimant was accepting both that the documents submitted in February 2006 were forged and that he knew that they were forged.
All of this might have been a basis for refusing the claimant an entry clearance to come to the United Kingdom on the basis that previous deceptions had been practised. However, for reasons which are not altogether clear, and which I will need to come to in a moment, the claimant was nonetheless granted entry clearance to come to the United Kingdom as a student. This was on 29 August 2006.
The claimant came here on 6 September 2006. On 12 April 2007, just outside the currency of his then extant leave (although nothing turns on that) he was granted further leave to remain as a student until the following year. There were then a series of further applications for leave to remain for one year, which applications were granted.
It is not clear from the available evidence what questions, if any, the claimant was asked about what had happened as to previous applications for entry to the United Kingdom. I infer that it is probable that the application form which the claimant must have completed in 2007/2008 et cetera contained the same question D21 which we see at page 90 of the bundle. That question was, "Has the applicant ever used deception when seeking leave to enter or leave to remain?" However, it is not safe to infer what answer the claimant gave to that question. I have to be in a state of agnosticism as to that, and to the extent that I am exercising a review jurisdiction the Secretary of State has taken no point on that particular aspect of the matter in the witness statement which I have considered.
On 21 April 2011 the claimant made yet another application for leave to remain as a Tier 1 (Post Study Work) Migrant. He completed an application form, most of which, perhaps all of it, is in the bundle. It is clear from page 90, as I have already pointed out, that he was asked at D21 whether he ever used deception when seeking leave to enter or remain, and the answer given was no.
On 13 July 2011 the Secretary of State refused the application to vary leave to remain on the basis that the claimant had failed to disclose a material fact pursuant to paragraph 322(1A) and furthermore that future applications for leave for entry clearance would be refused. The Secretary of State's reasons were as follows:
"In your current application made on 21 April 2011, you failed to disclose that you used deception in your previous immigration application made on 23 February 2006 for entry clearance. In your Tier 4 General application you have stated 'No' under D21 of Section 2 in confirmation that you have never used deception.
I am satisfied that these facts were material to the application because when you applied for entry clearance on 23 February 2006 in Kathmandu you supplied false documents. This has been confirmed by the entry clearance office …"
Pausing there, it is not clear to me why the Secretary of State is saying that the claimant failed to disclose the previous deception. It would have been for more straightforward to say, and frankly easier to prove from the Secretary of State's perspective, that the claimant made a false representation in answer to question D21 at the top of page 90 because instead of answering no, the correct answer was yes. Ultimately though, nothing turns on that nicety.
On 10 October 2011 the Secretary of State reconsidered and maintained her decision. Her reasoning was more or less identical.
That is the essential factual background to this case but it is necessary to understand what each party has to say about the evidence which I have summarised. The Secretary of State has filed a witness statement from Milind Deshpande, who is a Senior Case Worker at UKBA and has been serving in that role since 2007. Much of his evidence is a review of the documentary materials, which I have already conducted. The deponent does address the issue as to why the claimant was granted entry clearance on 29...
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