COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE D E TAYLOR
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE JACOB
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Ben Collins (instructed by Treasury Solicitors) for the Respondent
Hearing date : Thursday 25 March 2010
Crown Copyright ©
Lord Justice Rix :
"(1A) 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."
"E1. Has the applicant had any criminal convictions in the United Kingdom or any other country (including traffic offences) or any civil judgments made against them?
Note 1 – Convictions spent under the Rehabilitation of Offenders Act need not be disclosed. More information about the Act is given toward the end of the section."
"The new Rules are intended to cover people who tell lies either on their own behalf or that of someone else in an application to the UK Borders Agency. They are not intended to catch those who make innocent mistakes in their applications."
"…a false representation is one that is inaccurate or not in accordance with the facts. I say that, first, from the ordinary use of the English language and, secondly, because it seems to me that that interpretation squares more easily with the words in the rule "whether or not to the holder's knowledge". I agree that there is an alternative explanation for those words being in the rule, that is to say, to cover the case when somebody else has made a fraudulent representation. But to my mind they were inserted to show that representations, either by the holder or by anybody else, need not have been fraudulent…"
The circumstances of Mr A's application
"24. I never for once equated my traffic offences with criminal offences. I have always honestly thought traffic offences that need be mentioned are the ones that are related to drink driving, manslaughter while driving, killing while driving, vehicle stealing, failing to stop resulting in police car chase etc. For this reason, I never included any of my traffic offences on my home office applications since 2004 and I have always had my subsequent visas renewed.
25. It was never my intention to use deception in my application…"
Mr A does not there state that, in the alternative, he believed that the convictions were spent (which they were not), but he gave evidence to that effect before the AIT.
The Secretary of State's decision letter
"In your application, you failed to declare a criminal conviction.
For the above reasons, I am also satisfied that you have used deception in this application."
"This means that any future applications for entry clearance or leave to enter the UK you make will be refused under paragraph 320(7B) of the Immigration Rules (unless it would breach your rights under the Human Rights Act 1998 or the Refugee Convention) for the following period starting on the date on which you leave the UK following this refusal:
One year if you leave voluntarily, without our having to pay or contribute to the costs of your departure;
Five years if you leave voluntarily at the Government's expense;
Ten years if we remove or deport you."
The appeal proceedings
"The Appellant explained the circumstances of his driving offences, and said that his failure to mention them was an honest mistake. He had not realized that his conviction was a "criminal" conviction, and in any event he had believed the offences to be "spent"."
"It is irrelevant that the representation may have been inadvertent. The Rule does not import a discretion to the decision-maker; where the mandatory subparagraph applies, a grant of entry clearance would necessarily not be in accordance with the law. I am satisfied to the requisite degree of proof that false representations were made…This is dispositive of the appeal; in the circumstances I do not have to determine whether there had been non-disclosure of a material fact in relation to the application."
"The point of law is clearly arguable and a conclusion on it in favour of the Appellant would lead to a different determination depending on the facts found."
"13. This answer was false. It is in fact difficult to see how the Appellant's contention that the mistake was innocent can be maintained, given the clear nature of the question as stated in the application form. Be that as it may, the matter is irrelevant because of the mandatory nature of Rule 322(1A).
"14. The Immigration Judge had no discretion but to dismiss the appeal. There is no error of law…"
Thus SIJ Taylor ultimately made no findings as to Mr A's state of mind.
"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 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.''
It will be observed that paragraph 320(7A) contains the same language as the rule under consideration in paragraph 322(1A).
"(7B) subject to paragraph 320(7C), where the applicant has previously breached the UK's immigration laws by:
(b) breaching a condition attached to his leave;
(c) being an Illegal Immigrant;
(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not);
unless the applicant:
(i) Overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;
(ii) used Deception in an application for entry clearance more than 10 years ago;
(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;
(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago, or
(v) was removed or deported from the UK more than 10 years ago.
Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph."
"(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules."
"In paragraph 320(7B) and paragraph 320(11) of these Rules:
'Deception' means making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts."
"Grounds on which leave to remain in the United Kingdom is to be refused…
(1A) 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."
This rule is identically worded to paragraph 320(7A).
"Grounds on which leave to remain in the United Kingdom should normally be refused
(2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave…
(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his character, conduct or associations or the fact that he represents a threat to national security…"
Immigration Directorates' Instructions (IDIs)
"4. Paragraph 322(1A) – Deception used in a current application
4.1 The Immigration Rules require an application to be refused where false representations are made and/or false documents or information are submitted and/or material facts are not disclosed in relation to an application.
4.2 False representations: a false representation is made when an applicant or a third party lies or makes a false statement in an application, either orally or in writing (whether on the application form or on other documents). To consider refusing an application, the caseworker must be satisfied to a high degree that a false representation has been made. Applications should not be refused because the caseworker suspects that false representations have been made, or because of minor inaccuracies in the application, for example an inaccurate address or mis-spelt name.
4.3 False documents or information: a document or false information submitted alongside an application which is independently verified as being forged or not genuine. A false document includes:
• A genuine document which has been altered or tampered with;
• A counterfeit document (one that is completely false);
• A genuine document that is being used by an imposter;
• A genuine document which has been fraudulently obtained or issued;
• A genuine document which contain s a falsified or counterfeit visa/endorsement.
4.4 The Rules state that a refusal must be made irrespective of whether the false representations/documents or information have a bearing on the application.
4.5 An application should be refused even if it would otherwise have succeeded had the false representations/documents or information not been submitted.
4.6 An application should be refused even where the applicant does not know (or claims not to know) it is a false document.
4.7 Material facts not disclosed
4.8 There is a key distinction between providing false information and not disclosing information.
4.9 An application should only be refused where a person has not disclosed material facts…
4.10 The need for evidence
4.11 As with any refusal it is important to have evidence to support the decision. The wording of paragraph 322(1A) states "false representations have been made or false documents or information have been submitted" i.e. the burden of proof is on caseworkers (and not the applicant) to prove a false representation and that it was made for the purpose of obtaining leave. The standard of proof rests on the balance of probabilities, for matters of false representations, documents and other information it is a higher balance of probabilities than normal…
4.15 Any applicant refused under Paragraph 322(1A) will potentially face a ban on obtaining future Entry Clearance or Leave to Enter by virtue of Paragraph 320(7)(B).
Any applicant who breaches immigration laws, for example seeks leave to enter or remain by deception, enters illegally, overstays for more than 28 days or breaches his/her conditions of stay) will be banned from coming back to the UK for the following periods:
• 1 year, if they left the UK voluntarily (not at public expense) after the breach;
• 5 years, if they left the UK voluntarily at public expense following the breach; and
• 10 years, if they were removed or deported…
4.16 In order to make Entry Clearance and Immigration Officers aware of an applicant's history, caseworkers should make specific reference to the reasons for refusal on CID."
The minister's letter of 4 April 2008
We are pleased to have clarification that the reference to falsity in paragraph 33 of HC 321 implies an element of deliberate falsehood and not a mere mistake. Written confirmation that the comments apply as much to statements as to documents may be belt and braces, but would be appreciated nonetheless."
"The concession is a short term exercise designed to give those who were here illegally when it was announced an incentive to leave by 1 October…Provided he or she leaves between 17 March and 1 October, it does not matter when he or she applies to come back."
"You go on to ask for confirmation that Lord Bassam's comments about the definition of a false document also apply to false representations. We have published guidance to Entry Clearance Officers, in Chapter 26 of the Entry Clearance Guidelines, which I believe deals with this point. The new Rules are intended to cover people who tell lies – either on their own behalf or that of someone else – in an application to the UK Borders Agency. They are not intended to catch those who make innocent mistakes in their applications. I will arrange for you to be sent a copy of Lord Bassam's reply to Lord Avebury about the assurances which he (Lord Bassam) gave in the Lords debate."
The debate of 17 March 2008
The letter (revisited)
"The legal standard of proof is 'to a higher balance of probabilities'…In order to refuse under this Rule, we need positive evidence that they have used deception or false representations, or that a document that they have submitted is false…
…What is a false representation?
A false representation is when an applicant or third party makes a false statement in an application, either orally or in writing. The application must be refused even if the false representation is not relevant to the application or your decision and even if the applicant was not aware that false representations, information or documents have been used.
However, you must not refuse an applicant because you suspect that false representations have been made or because of minor inaccuracies in the application, for example an inaccurate address or mis-spelt name on a visa application form…
…What is a false document?
You must refuse the application if you have evidence that a false document has been submitted even if the false document is not relevant to the application or your decision and even if the applicant is unaware that the document is false.
A false document includes: a genuine document which has been altered or tampered with; a counterfeit document (one that is completely false); a genuine document which has been fraudulently obtained or issued; or a genuine document which contains a falsified or counterfeit visa/endorsement" [emphasis added].
"We have published guidance…which I believe deals with this point. The new Rules are intended to cover people who tell lies – either on their own account or that of someone else…"
He means exactly that: he is asked for an assurance that the assurance he gave in the Lords debate about false documents applies also to false representations. He gives that assurance, and supports it by demonstrating that published guidance puts false documents and false representations (and for good measure false information) all in pari materia.
"It can be seen from the wording of para 6 of the Rules that, unlike para 322(1A) which does not require knowledge on the part of the applicant, para 6 contains no such extension. In our view that must mean that for deception to arise the false representations must have been made knowingly…"
I respectfully agree.
"A passenger who holds an entry clearance which was duly issued to him and is still current is not to be refused leave to enter unless the immigration officer is satisfied that:
(a) whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the clearance…"
"The way that Nolan J put it, in refusing the application, was:
"The Adjudicator quite clearly thought that when the sponsor represented to his wife he had not been married he was not only making an untrue declaration but one that he knew was false. The applicant, in all innocence, employed that false representation as part of her application for that very purpose."
I agree with Nolan J…"
"I agree. On the facts of this case the decision of the Appeal Tribunal was plainly right."
"33. In deciding what simple fairness demands in the present context it is important to recognise first and foremost that, so far from asking here what Parliament intended, the question is what the Secretary of State intended. The rules are her rules and, although she must lay them before Parliament, if Parliament disapproves of them they are not thereby abrogated: the Secretary of State merely has to devise fresh rules as appear to her to be required in the circumstances.
34. Secondly, as Mr Ockelton put it in the tribunal's decision here, "the immigration rules are essentially executive, not legislative"; the rules "are essentially statements of policy". Longmore LJ said much the same thing in the Court of Appeal (para 27): "the rules are statements of executive policy at any particular time…Policy statements change as policy changes." This to my mind is the core consideration in the case…
35. The immigration rules are statements of administrative policy; an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain…
38. In my opinion the truer analogy is with planning law and practice which requires that all applications are determined in accordance with whatever policies are in force at the time the decisions are taken."
4. Like any question of construction, this depends upon the language of the rule, construed against the relevant background…
6. The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules…
"10…Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy. The ECO's counsel readily accepted that what she meant in her written case by the proposition "the question of interpretation is…what the Secretary of state intended his policy be be" was that the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, under section 3(2) of the Immigration Act 1971, the Secretary of State has to lay the Rules before Parliament which then has the opportunity to disapprove them. True, as I observed in the MO (Nigeria) case, at para 33: "the question is what the Secretary of State intended. The rules are her rules." But that intention is to be discovered objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State's intention to be discovered from the Immigration Directorates' Instructions ("IDIs") issued intermittently to guide immigration officers in their application of the rules. IDIs are given pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act which provides that: In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State…" (Emphasis added)…
11…for my part I found the series of IDIs canvassed before us (in any event incomplete for want of any retained archive of such instructions, another thing to be regretted) singularly unhelpful on the issue of construction."
It is not clear what about the submissions before the Supreme Court led to that criticism.
"We mean a document that is forged or has been altered to give false information. If people submit such documents, our belief is that they should be refused…"
ILPA then asked for clarity as to whether that answer extended to statements, on the basis that the reference to falsity in the rule "implies an element of falsehood and not a mere mistake". Mr Byrne's letter replied to that request for clarification first by saying that the answer was to be found in Entry Clearance Guidelines "which I believe deals with this point", and secondly by stating in his own words what the new rules were intended to cover, viz "people who tell lies – either on their own behalf or that of someone else – in an application to the UK Borders Agency. They are not intended to catch those who make innocent mistakes in their applications."
Lord Justice Longmore :
Lord Justice Jacob :