Upper Tribunal (Immigration and asylum chamber), 2009-10-02, [2009] UKAIT 43 (KB (para 320(7A): "false representations"))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Dr HH Storey |
| Status | Reported |
| Date | 02 October 2009 |
| Published date | 14 October 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 08 September 2009 |
| Subject Matter | para 320(7A): "false representations" |
| Appeal Number | [2009] UKAIT 43 |
KB (para: 320(7A): “false representations”) Albania [2009] UKAIT 00043
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Procession House Date of Hearing: 8 September 2009
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Storey
Between
KB
Appellant
and
THE ENTRY CLEARANCE OFFICER, TIRANA
Respondent
Representation
For the Appellant: Mr Alfred Qinani (the sponsor)
For the Respondent: Ms M. Tanner, Home Office Presenting Officer
A genuine document may contain a false representation. If it does, refusal under para. 320(7A) is lawful.
DETERMINATION AND REASONS
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The Appellant is a national of Albania. She applied to the respondent for entry clearance with a view to settlement in the United Kingdom as the wife of the sponsor. Her application was refused. She appealed to the Tribunal, and an Immigration Judge allowed her appeal. The respondent sought and obtained an order for reconsideration. Thus the matter comes before us.
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The sponsor is a British citizen, and, apparently, also a national of Albania. He came to the United Kingdom in October 1998. He said that he was Kosovan, and claimed asylum. Apparently without any very serious enquiry into his nationality, the Secretary of State granted him refugee status. After he had had that status for a number of years he applied for British citizenship. In doing so, he repeated the falsehood about his nationality, stating that he had been born in Morin, in Kosovo. Again apparently without any very serious enquiries as to his nationality he was granted British citizenship, and a British passport was issued to him on 16 March 2006 recording his birth in Morin.
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The sponsor then travelled to Albania, met his wife and married her.
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The sponsor’s history does not appear to be an unusual one. Although the Tribunal and hence the public tend to hear about cases in which applications to the Secretary of State are refused, it is usually said wrongly, it appears that the result in many successful applications may be equally wrong. Section 4 of the Nationality, Immigration and Asylum Act 2002 substitutes a new s40 in the British Nationality Act 1981. Subsection (3) of that section enables the Secretary of State to deprive a person of “a citizenship status which results from his registration or naturalisation” if it was obtained by fraud, false representation, or concealment of a material fact. The decision to deprive a person of his citizenship in this way carries a right of appeal to this Tribunal. In the only such cases of which the Tribunal has previously been aware, the Secretary of State proposed to prove the fraud or false representation by means of a reminiscence of a telephone conversation between an unspecified British official and an unspecified Albanian official. There was to be no verification of the latter’s status or knowledge, and, other than the British official’s assurance, no evidence that the interlocutors were talking about the same person. The Secretary of State’s decisions were in due course withdrawn.
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In the present case, the facts came to light in the appellant’s application, because she gave what the sponsor admits are the true details of her husband’s birth, in Kukes, Albania on 7 April 1978. She produced his birth certificate as evidence of that. She also, however, supported her application with a copy of the sponsor’s British passport, showing his birth in Morin, Kosovo, on 7 April 1981. The respondent considered the facts before him and, on the evidence, was not satisfied that the appellant and the sponsor had established that they intended to live together permanently as husband and wife, as required by paragraph 281(iii) of the Statement of Changes in Immigration Rules, HC 395. The application was refused for that reason, as well as under para 320 (7A), which provides as follows:
“320…. The following grounds for the refusal of entry clearance or leave to enter apply:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
….
(7A) Where false representations have been made or false documents 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.”
6. The Immigration Judge heard evidence from the sponsor. He concluded that at the date of the decision the appellant and the sponsor did indeed intend to live together permanently as husband and wife. He thus found that the requirements of para 281(iii) were satisfied. On para 320 (7A), he recorded the sponsor’s evidence as follows:
“At the time he made his application for asylum in the United Kingdom, he did not speak good English. He said his father had been working in Kosovo at the time and he came here from Kosovo where he had been helping his father. He says this is where the error arose from. He had then successfully claimed asylum in this country.”
7. He noted that the grounds of appeal alleged that the discrepancy was “nothing more than an administrative error made with respect to the details of his place and date of birth, without the sponsor’s knowledge, when he claimed asylum in the United Kingdom.” The Immigration Judge went on to say this:
“15. It seems to me that paragraph 320 (7A) must be founded on allegation of a false representation, or a deliberate omission to disclose facts. Its effect is to impose a mandatory refusal on the application even if the misrepresentation was not material to the application. It follows that the decision-maker must be satisfied to a high standard that false representations have been made or, false documents or information have been submitted, or material facts have not been disclosed.
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The appellant in this case did not, in my view, make any misrepresentation herself she gave her husband’s date of birth, as she knew it, as 7th April 1978. The respondent’s case is essentially that the sponsor’s British passport is false. However there is no allegation that it is a forgery, and no dispute that it relates to the sponsor. Although a genuine document...
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