Shen (Paper Appeals Proving Dishonesty)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Green |
| Judgment Date | 20 May 2014 |
| Neutral Citation | [2014] UKUT 236 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 20 May 2014 |
[2014] UKUT 236 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon Mr Justice Green
UPPER TRIBUNAL JUDGE Goldstein
For the Appellant: No Appearance
For the Respondent: Ms K Pal, Home Office Presenting Officer
Shen (Paper appeals; proving dishonesty)
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(1) In terms of the approach that a tribunal should adopt towards decisions of the Secretary of State in which dishonesty or deception is alleged against an applicant for leave to remain, the starting point should be, as the Court of Appeal in Adedoyin (formerly AA (Nigeria) v SSHD ) [2010] EWCA Civ 773have made clear, that pursuant to paragraph 322 of the Immigration Rules, the reference to “false” means “dishonestly” false.
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(2) Where an application form etc is false in a material way, this may be relied on by the Secretary of State as prima facie evidence establishing dishonesty. The inference of deliberate deception can be strengthened by other facts: eg if a criminal conviction (not disclosed in an application) occurred shortly before completion of the application form. Here, the conviction must have been high in the applicant's mind and any explanation based on oversight would carry little weight. But it is always open to an appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the burden switches back to the Secretary of State to answer that evidence. At the end of the day the Secretary of State bears the burden of proving dishonesty.
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(3) The internal organisational decision by the Secretary of State not to engage with paper appeals means that the appellant's evidence goes unchallenged. In that regard, it must be remembered, that in the absence of evidence from the Secretary of State putting the appellant's prima facie plausible explanation into doubt, it would be wrong to find dishonesty. Thus, in view of the possible evidential difficulties confronting a judge when deciding a paper application, where the appellant's evidence is not met (see para (2) above), a tribunal should be slow to find dishonesty, particularly without hearing evidence and submissions on the point from the appellant and/or the Secretary of State.
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(4) A finding of dishonesty can have catastrophic consequences for the appellant in social and economic terms and is not to be made lightly. Thus, in a paper case, if a judge entertains doubts as to the appellant's account, he or she should be mindful of the powers of rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to give directions regarding supporting documentary evidence, or for the Secretary of State to respond to the appellant's evidence as she considers appropriate.
This appeal concerns the approach that the Tribunal should adopt towards decisions of the SSHD in which dishonesty or deception is alleged against an applicant for leave to remain. It also highlights a particular problem faced by the First-tier Tribunal (FtT) in relation to dealing with allegations of dishonesty on paper appeals.
There is before the Tribunal an appeal against the determination of Designated Judge Zucker in the FtT of 12 February 2014. In that determination the Judge dismissed, on paper, the Appellant's appeal against the decision of the SSHD of 18 September 2013 (“the decision”) refusing the Appellant's application for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant under the Points Based System (PBS) and for a Biometric Residence Permit. The Appellant did not appear before us to make representations. However no explanation has been given for this absence and no request has been received for an adjournment. In the circumstances Ms Pal requested that we proceed. In the circumstances we have decided, in the exercise of our power under rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to proceed to determine this appeal.
The decision was to remove the Appellant pursuant to section 47 of the Immigration, Asylum and Nationality Act 2006. The basis of the decision was that the Appellant failed to meet the requirements of paragraph 245ZX(a) of the Immigration Rules. Further it was stated that in the Appellant's Tier 4 application, at question J16, she said that she had never used “deception” to gain leave to remain in the United Kingdom. The operative part of the decision was in the following terms:
“At section P on the Tier 4 (General) application form you declared and confirmed that the information you gave in that form was complete and true to the best of your knowledge and agreed to the sharing of information held about you by other government departments, agencies, local authorities, the police, foreign governments and other bodies and that if such bodies provided the Home Office with any information held about you which may be relevant for immigration purposes it may be used in reaching a decision on your application.
At section J on the Tier 4 (General) application form you declared that you have no criminal convictions (including traffic offences), civil judgments and/or charges made against you in the United Kingdom or any other country. Through routine checks made by the Home Office we have information that you have not disclosed your driving offences. Your driving offences are as follows:
Conviction(s):
1. 22.01.13 Neath Port Talbot Magistrates
Yalian, Shen
1. Failing to stop after accident on 11.05.12
No separate penalty.
2. Drive mechanically propelled vehicle without due care and attention on 11.05.12
No separate penalty.
3. Using a vehicle while uninsured on 11.05.12
Fine £600.00
Victim surcharge £15.00
Costs £85.00
Disqualified from driving – discretionary 56 days.
Conviction not spent until 22.01.2018
Therefore your application for Tier 4 (General) Student has been refused under the published Immigration Rules.”
It is to be observed that the failure relied upon by the SSHD was the failure to disclose the offences by which we interpret the decision to refer specifically to mean the convictions which are then set out in the letter all of which relate to a single incident on 11 May 2012.
We would note that whilst the decision refers to the declaration, which it is said was wrongly made, that the Appellant had no “criminal convictions (including traffic offences), civil judgments and/or charges”, this is not, in actual fact, a faithful reflection of the application form that the Appellant was required to complete in conjunction with her application. In the application there is no reference to convictions including “traffic offences”.
The Appellant appealed to the FtT. In her application form (IAFT1) in Section 8, she gave the following reasons and evidence:
“When submitting my Tier 4 (General) application for further leave to remain in the UK, I stated in question J16 that I had never used deception to gain leave to remain in the UK. At Section P on the Tier 4 (General) application form, I declared and confirmed that the information I gave in the form was complete and true to the best of my knowledge. Furthermore, at Section J on the Tier 4 (General) application form, I declared that I had no criminal convictions (including traffic offences), civil judgment and/or charges made against me in the UK or any other country. Unfortunately, I was not aware that I was required to disclose the following convictions given to me on 22/01/2013.”
She then proceeded to set out the convictions in issue. She recorded that as a result of these convictions she was disqualified from driving for a discretionary 56 days and required to pay a fine of £700.00. She then proceeded to state as follows:
“I was informed by the police that I would receive a letter by post disclosing the penalty charges, however I had still not received any letter by the time I had moved to temporary accommodation elsewhere in June 2012. I continued to contact my friends who were continuing to live at my previous address to enquire if the letter had been received. However my letter had still not been posted. In October 2012 I moved address once again in order to commence my studies at Swansea University and I updated my new address with the police. At this time, I had still not received a letter to my previous address. As I had still not received the letter by October 2012 and since I had updated the police with my new address in Swansea, I had presumed that my case had been closed and that no further action would be taken. When I made my Tier 4 (General) application on 21/08/13 in order to study at Cardiff Metropolitan University I did not understand that I should disclose information about my traffic offences as I believed the police had taken no further action to convict me.”
The appeal was submitted together with an application, as was the Appellant's right, that it be heard on paper. The Appellant was a litigant in person and she had no legal advisors to assist her. The facts as set out in her application have not been challenged by the SSHD. In the course of submissions during oral argument it was explained to us by Counsel for the SSHD that, internally, the SSHD had no process or mechanism pursuant to which appeals submitted to the FtT on paper were appraised with a view to be responded to in the course of the paper appeal process. It was for this reason that the facts and matters set out by the Appellant in her appeal documentation were not put in issue or otherwise challenged.
Judge Zucker issued his determination on 12 February 2014 dismissing the appeal. The Judge in paragraphs 1-3 recites, briefly, the...
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