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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/773.html
Cite as: [2011] WLR 564, [2010] EWCA Civ 773, [2011] 1 WLR 564

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		Neutral Citation Number: [2010] EWCA Civ 773
		Case No: C5/2010/0051

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE D E TAYLOR
IA/07553/2009

Royal Courts of Justice
Strand, London, WC2A 2LL

06/07/2010

B e f o r e :

LORD JUSTICE RIX
LORD JUSTICE LONGMORE
and
LORD JUSTICE JACOB
____________________

Between:

	A	Appellant
	- and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent

____________________

Mr Zane Malik (instructed by Malik Law) for the Appellant
Mr Ben Collins (instructed by Treasury Solicitors) for the Respondent
Hearing date : Thursday 25 March 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Rix :

This is the appeal of Mr A A, a citizen of Nigeria who has spent many years as a student in England, against the decision of the AIT upholding the refusal of the Secretary of State to grant Mr A leave to remain as a Tier 1 (post-study work) migrant. The relevant rule within the Immigration Rules (HC 395) is paragraph 322(1A) which is headed "Refusal of variation of leave to enter or remain or curtailment of leave" (the "rule"). However, reliance is principally placed upon a letter dated 4 April 2008 from Mr Liam Byrne MP, minister of state at the Home Office, addressed to ILPA (the Immigration Law Practitioners' Association), which it is submitted should lead to a different interpretation of the rule from that which was adopted by the AIT ("the letter"). There is also an issue under article 8 of the European Convention on Human Rights.

The rule states that 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."

The false representation which led to the refusal of leave to remain in the case of Mr A was his answer "No" to the question, raised in the relevant application form which he signed on 25 November 2008, –

"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."

In fact, Mr A had been convicted on three occasions, twice in 2004 and a third time in 2006, of driving without a licence or insurance. His evidence, however, has been that he did not realise that these were criminal convictions, or he thought that they were spent. He says that he did not intend to deceive the authorities.

The AIT held that under the rule any question of dishonesty or of an intention to deceive is irrelevant, and that it is sufficient that a representation has been made which is not true. Therefore it did not make any finding about Mr A's state of mind. It also rejected Mr A's reliance on article 8.

The letter, which was also or even primarily concerned with the consequences of a different rule, albeit a rule in the same terms as the rule with which this appeal is concerned, namely paragraph 320(7A), said inter alia that –

"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."

"False"

It is a remarkable feature of a language as rich as English that the word "false" has two meanings. Thus its first meaning (the Concise Oxford Dictionary) is "wrong, incorrect" and its second meaning is "lying, deceitful, treacherous, unfaithful to; deceptive; spurious, sham, artificial…". So it can be used to denote something which is merely not in accordance with the true facts, or it can be used to denote something which is also dishonest (or at least the product of artifice). Lawyers certainly are familiar with the two uses. However, our civil law tends to prefer the expression "misrepresentation" to "false representation" in order to emphasise that an untrue representation need not be dishonestly made. Misrepresentations may be innocent, or fraudulent, or negligent. That it seems to me is a wise precaution. In the criminal law, the word "false" on the whole (but I am cautious about the dangers of generalisation) is used in the second sense of the word. Thus "false accounting", "making false allegations", "false statements on oath", "false instruments" (to pick up expressions from the index of Archbold) are all used in a context where the mens rea element demands something more than mere inaccuracy.

It appears, however, that in the context of immigration law, "false representation" has been thought of as being used in the first, and morally neutral sense of the word. Thus, the following passage occurs in Tahzeem Akhtar v. Immigration Appeal Tribunal [1991] Imm AR 326 at 332/3 per Staughton LJ:

"…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

Mr A was born on 18 April 1982. He entered the UK on 30 December 1999 as a student and received numerous extensions of that leave culminating in an extension dated 28 December 2007 for leave to remain until 31 January 2009. On 26 November 2008, within time, he made the application which is the subject-matter of this appeal.

His evidence discloses that he has put his student years to good effect. He received 1^st class honours in a B Sc degree in Information Systems from Brunel University, and an M Sc in Computational Finance from the University of Nottingham. His application in all other respects meets the requirements of the new points-based system.

However, he has suffered three convictions for driving offences, which he did not disclose. In the first half of 2004 he was convicted at Uxbridge Magistrates' Court for driving without a licence and insurance. He was disqualified from driving for 6 months and was fined. On 7 October 2004 he was convicted at Thames Magistrates' Court for driving on 3 September 2004 while disqualified and without insurance. He was given a community punishment order for 60 hours unpaid work, and fined. On 13 February 2006 he was convicted at Nottingham Magistrates' Court for driving without a full licence or insurance. He was given 8 penalty points on his provisional licence and fined. His evidence mitigates these offences. Only the October 2004 conviction is recorded on the police national computer. However, Mr A has now acknowledged all three convictions. Each of them involves driving without insurance.

In his witness statement dated 10 April 2009, Mr A says:

"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.

As for article 8 considerations, Mr A relies on the fact that, as of the date of his application in November 2008, he had already been in the UK for nearly nine years, and therefore close to the ten years at which he would have been entitled to apply for indefinite leave to remain under the long residence rule. Two sisters joined him in the UK in 2000 and 2004 respectively as work permit holders. Apart from his academic achievements, he has had a good record of temporary employment. I will deal with article 8 as a separate matter later in this judgment.

The application form, cited above, made it expressly clear that the question about convictions (whether in the UK or abroad) was "including traffic convictions" and there was also a reference to adverse "civil judgments". Note 1 to the relevant question E1 referred to spent convictions. A note about the Rehabilitation of Offenders Act 1974 was contained in the application form, which included telephone numbers where information could be obtained about relevant rehabilitation periods. The period which concerned his driving convictions was five years, so none of them had been spent at the date of the application.

The Secretary of State's decision letter

By letter dated 6 March 2009 the UK Border Agency wrote to Mr A to inform him that his application had been refused "As material facts were not disclosed". The letter continued:

"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."

The consequences of those findings were then explained:

"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

Mr A appealed. His appeal came before Immigration Judge Courtney, whose determination dismissing his appeal was published on 29 April 2009. There is no sign that at that stage Mr Byrne's letter was relied on. Mr A gave evidence on his own behalf. IJ Courtney recorded:

"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"."

IJ Courtney recorded that she was looking at the matter not merely as a failure to disclose material facts, but as the making of a false representation. She described that as the crux of the matter and added –

"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."

Mr A made an application for reconsideration, which was refused by Senior Immigration Judge Mather on 22 May 2009 on the basis that the rule was mandatory and the decision therefore inevitable. In that application there was still no reference to the letter, but it was nevertheless submitted that the rule imported a discretion. However, the application for reconsideration was renewed to the High Court, this time including a reference to the letter. HHJ Pelling QC, sitting as a high court judge, considered the question of law of sufficient merit to be referred directly to this court, but decided that there should first be a reconsideration by the AIT so that it could make any necessary findings of fact. Judge Pelling said:

"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."

The reconsideration by SIJ Taylor, whose determination is dated 1 October 2009, confirmed the dismissal of Mr A's appeal. The letter was referred to in the context of submissions (at para 9), but not mentioned again thereafter. SIJ Taylor merely said:

"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.

Permission to appeal was granted to this court by Lord Justice Maurice Kay.

The rules

I have already set out the rule contained in paragraph 322(1A). It is necessary, however, to go back to paragraph 320, which is headed "Refusal of entry clearance or leave to enter the United Kingdom": in other words it is a rule which concerns applicants not yet within the UK.

Paragraph 320 provides:

"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).

Paragraph 320(7B) then continues, as further cases where entry clearance "is to be refused", as follows:

"(7B) subject to paragraph 320(7C), where the applicant has previously breached the UK's immigration laws by:

(a) Overstaying

(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."

Paragraphs 320(8)-(11) contain rules headed "Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused". They include –

"(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."

"Deception" is given a capital letter because it is a defined term. It is defined in paragraph 6 of the Rules, as follows:

"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."

It may be observed that in that definition the parenthesis "(whether or not material to the application)" does not include the reference to the applicant's knowledge contained in both the rule (paragraph 322(1A)) and paragraph 320(7A), where the parenthesis reads "(whether or not material to the application, and whether or not to the applicant's knowledge)" (emphasis added).

It follows that if "Deception" requires dishonesty, as prima facie it does, then paragraph 320(7B) contains nothing to say about how an applicant who may have previously breached immigration rules by making a false representation other than dishonestly, for instance because the false representations were false without the applicant's (or anyone's) knowledge, should be treated, where he falls within none of the conditions (a) to (d) above. That would be the case of Mr A if the information "No" he supplied in answer about previous convictions did not involve "Deception".

Although paragraph 320(7B) is relevant to the consequences for re-entry of a breach of the immigration rules involving "Deception", it is only paragraph 322 which deals with what amounts to a ground for refusing leave to remain. Thus paragraph 322 is headed "Refusal of variation of leave to enter or remain or curtailment of leave". I have already set out (at para 2 hereof above) the rule in paragraph 322(1A). I repeat it again here:

"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).

Paragraph 322 continues:

"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…"

It follows that a false representation in a previous application will raise a discretionary ground for refusal. The rule (paragraph 322(1A)), however, mandates refusal.

Immigration Directorates' Instructions (IDIs)

IDIs are published by the Home Office as instructions to their caseworkers as to how to apply the Immigration Rules. They are, however, publicly available documents. We have been supplied with the IDI of July 2009 for paragraph 322. Paragraph 4 of the IDI deals with the rule in paragraph 322(1A). It provides:

"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 following observations may be made about these passages. (i) In the case of paragraph 322(1A) generally, the heading refers to "deception", and in the discussion of false representations (at para 4.2), the primary emphasis is on lying. This emphasis is consistent with what is said on burden of proof (at para 4.11), where it is expressly said that the need is to prove not only a false representation but also "that it was made for the purpose of obtaining leave", and that "it is a higher balance of probabilities than normal". (ii) They state (at para 4.6) that, in the case of a false document, an application "should" be refused (but one would expect "must" be refused), "even where the applicant does not know (or claims not to know) it is a false document", but there is no similar remark in the case of false representations or non-disclosure of material facts. (iii) They confirm the inter-relationship between paragraph 322(1A) and the possible consequences under paragraph 320(7B) (at para 4.15). (iv) In discussing the paragraph 320(7B) consequences, they give the use of deception (and the other conditions stated in paragraph 320(7B) (a)-(d) as examples of breaches of immigration law which entail the stated consequences, thus leaving it open that other breaches not listed in conditions (a)-(d) may entail the same consequences: but that is not consistent with paragraph 320(7B) where the conditions (a)-(d) are given as exclusive conditions. (v) They confirm the use of the CID (the letter which informs the applicant of the result of his application) as the basis for the paragraph 320(7B) consequences.

The minister's letter of 4 April 2008

The background to the letter was a debate in the House of Lords on 17 March 2008 on the then proposed changes to the Immigration Rules (HC 321). Those changes have become part of the Immigration Rules set out above. For instance, paragraphs 320(7A), 320(7B) and (the rule with which we are concerned) 322(1A) were then inserted. Lord Bassam spoke in that debate for the Government and gave certain assurances. At the time of the hearing of this appeal we did not have the Hansard report of that debate. They were referred to in the letter, and in the letter from ILPA dated 26 March 2008 to which the letter responded.

ILPA's letter contained this passage:

"Falsity

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 minister's letter referred repeatedly to a "concession" as having been made by Lord Bassam, also described as a "concession to paragraph 320(7B)". It was available to a migrant who was in the UK on 17 March 2008 and had left by 1 October 2008. Thus –

"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."

That however was a separate matter from that with which we are concerned. Of relevance to this appeal is the following passage:

"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."

On careful consideration it seems to me to be impossible to discern from this passage, without looking also at the Lords debate and the Entry Clearance Guidelines, the proper context, content and extent of what is stated in the letter by reference to Lord Bassam's assurances. We have therefore obtained the Hansard report of the Lords debate.

The debate of 17 March 2008

At this debate Lord Avebury proposed that the tabling of HC 321 be disapproved, inter alia on the ground that there had been no consultation with ILPA and other like bodies. Lord Avebury referred to the language of what is now paragraph 320(7A) and paragraph 322(1A) and expressed concern that a clerical error or the submission of the "wrong document by mistake" would lead to mandatory refusal "even where there was no intention to deceive". He also criticised the mandatory penalties for inadvertent or accidental breaches in what became paragraph 320(7B). Baroness Warwick of Undercliffe spoke next, with a particular interest in university students from abroad who, under the provisions of what became paragraph 320(7B) might be banned from re-entry for up to 10 years by reason of a previous false statement. She said : "It is not clear from the rules as formulated whether "false" has the meaning of mere inaccuracy, which is one ordinary dictionary meaning, or whether a deliberate fraud must be attempted." Baroness Hanham raised a different concern, namely whether children, who rely on parents or other adults to submit applications on their behalf, might face mandatory refusal where a false document had been submitted or a false statement had been made.

Lord Bassam in response dealt with some but not all of these concerns. As for transitional arrangements, he announced what he described as a "concession", namely that the new mandatory rules (ie paragraph 320(7B)) would not apply to anyone here illegally who voluntarily left before 1 October 2008. As for false documentation, he gave a definition of "false document", saying: "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. It will be for the BIA to prove that a document is false, and the standard of proof has to be very high". He gave no assurances specifically about "false representations".

That is no doubt why the ILPA letter asked for confirmation that "the comments apply as much to statements as to documents".

The letter (revisited)

That ILPA request for confirmation is the matter addressed in the paragraph from Mr Byrne's letter cited at para 37 above. In that connection, it is not clear to me whether "Lord Bassam's reply to Lord Avebury about the assurances which he (Lord Bassam) gave in the Lords debate" is a reference to a separate document. If so, it is not available to us. As for "Chapter 26 of the Entry Clearance Guidelines", to which Mr Byrne also referred, the latest version of this is RFL04 ("RFL04 Deception in an application – paragraph 320(7A)"). That is concerned with paragraph 320(7A). The discussion there includes the following:

"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].

It seems to me to be reasonably clear from these passages taken by themselves, and I remind myself that these are not the Rules but merely guidance to entry clearance officers as to how to apply them, that the language emphasised in italics is not intended to render "false" as otherwise used in RFL04 or paragraph 320(7A) in its meaning of "untrue" or "incorrect", but in its alternative meaning of "lying" or "deceitful". I say that because it is quite clear (a) that "false" in connection with documents has that meaning; (b) that the language "even if the applicant is unaware that the document is false", reflecting paragraph 320(7A)'s "whether or not to the applicant's knowledge", is not intended to make it unnecessary to show that the document is a deceitful document or is being used in a deceitful way; and (c) that what is therefore being referred to in the reference to the applicant's possible ignorance is his ignorance of the use of a false document by someone else acting on his behalf or using him as a medium. It follows that, where false representations are concerned, logic compels that "false" should be used in the same sense as meaning "lying" or "deceitful", and that the applicant's ignorance is that the representation is being made on his behalf or through him by someone who is not ignorant of the deception. That is why RFL04 is able to put "false representations, information or documents" all together in the passage "even if the applicant was not aware that false representations, information or documents have been used". That is why the general expression "has been used" is adopted. That is why the standard of proof referred to (albeit inaccurately) is the "higher balance of probabilities".

It can now be seen what Mr Byrne is saying in the passage in his letter where he states:

"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.

When, therefore, Mr Byrne continues "They are not intended to catch those who make innocent mistakes in their applications", he is putting the other side of his assurance that the new rules are intended only to cover people who tell lies.

Of course, "innocent mistakes" may be bigger or smaller. For instance, RFL04 refers to "minor inaccuracies" such as an inaccurate address or a misspelt name. In my judgment, however, that is a somewhat different aspect of the matter. An applicant (or someone else on his behalf) may misstate his name or address, although of course he knows the truth, without that being a false representation or false information. "Don't be silly" is the sense of that guidance. In other areas of the law the court would say that there is no misrepresentation where the representation is substantially correct, or it may say that an incorrect description does not matter. But, equally, a name could perhaps be misspelt, or an inaccurate address given, as part of a deception. In which case it would not be a minor inaccuracy.

All of this is entirely consistent with the heading in RFL04: "Paragraph 320(7A) – Deception in Visa Application". That heading would be gravely inaccurate if no deception was needed to constitute a false representation.

"Deception"

This view of the matter is, in my judgment, supported by considerations of the same wording (as is present in paragraph 320(7A)) to be found in paragraph 322(1A), the rule with which we are concerned, and of the reference to "Deception" in paragraph 320(7B).

Thus the IDI for paragraph 322(1A) cited (at para 32) above, seen through the eyes of Mr Byrne's letter in addition to the observations to be derived from the IDI itself (see para 33 above), itself suggests that there is a need for deception, even if the applicant himself is innocent of it. That would explain the remark at para 4.6 of the IDI that in the case of a false document the application should be refused "even where the applicant does not know…it is a false document". That may be the situation where the document is used by someone else on the applicant's behalf. Again one finds that the whole discussion takes place under the rubric of deception: hence, "Paragraph 322(1A) – Deception in a current application".

This analysis is also supported by paragraph 320(7B). The consequences of paragraph 320(7B) are common to the use of false representations or false documents, and whether under paragraph 320(7A) or paragraph 322(7B). However, critically, paragraph 320(7B) is only concerned with "Deception" (to ignore conditions (a), (b) or (c) for present purposes). Deception is defined (in paragraph 6) in terms of false representations or false documents (or failing to disclose material facts). On behalf of the Secretary of State, Mr Ben Collins submitted that that definition was so close to the language of paragraphs 320(7A) and paragraph 322(1A) that it should be regarded as a definition of falsity for those purposes. He made that submission despite the presence of the word "Deception" in paragraph 320(7B) but not in either paragraph 320(7A) or paragraph 322(1A), and despite the absence in the definition of "Deception" in paragraph 6 of the language "whether or not to the applicant's knowledge" found in both paragraphs 320(7A) and 322(1A).

In my judgment, however, it would be grotesque to ascribe to the Secretary of State an intention to use "Deception" to mean something lacking in dishonesty. I note that in NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031, a decision of SIJJ Storey, Lane and Pinkerton, the AIT, while adopting Staughton LJ's statement regarding false representation from Akhtar v. IAT as applying to the rule in paragraph 322(1A), rejected any idea that paragraph 320(7B)'s reference to "Deception", governed by its definition in paragraph 6, did not require dishonesty. Thus their decision included the following (at para 146):

"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.

Submissions

Mr Collins' submission is that "false" in paragraphs 320(7A) and 322(1A) only bears the meaning of "wrong" or "inaccurate", as shown by the wording "whether or not to the applicant's knowledge" and in reliance on Akhtar v IAT (see para 8 above); that "Deception" in paragraph 320(7B) bears the same meaning, despite the differences of language between the paragraph 6 definition of "Deception" and the language of paragraphs 320(7A) and paragraph 322(1A); that it follows that both IJ Courtney and SIJ Taylor were right to say that Mr A's evidence of his personal honesty was irrelevant, because it sufficed that his answer "No" in response to the question about convictions was incorrect; that there was nothing in Mr Byrne's letter or in Lord Bassam's assurances to any other effect; and that in any event the letter or those assurances could not affect or alter the language of the rule (ie paragraph 322(1A)).

In response, Mr Zane Malik on behalf of Mr A submits that, whatever the rule standing all by itself may have meant, the effect of Lord Bassam's assurances and of the letter is: either to require the rule to be "read down" so as to apply only to dishonestly false representations; or to amend the rule, ie the Secretary of State's policy, to the same effect; or to introduce an element of discretion into the decision, which therefore has to take account of the applicant's state of mind. In any event, it is necessary for the tribunal of fact to come to a view as to Mr A's honesty, and that can only be done by the AIT.

Jurisprudence

In Akhtar v. AIT an application for leave to move for judicial review was refused by both judge and court of appeal. The wording in question was paragraph 13(a) of HC 169 which read:

"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 facts were that the appellant, the holder of the entry clearance, a woman from Pakistan, had come to the UK to join her husband, who was her sponsor. She had said at interview that it was her and the sponsor's first marriage. Her sponsor was also interviewed on her arrival, and he confirmed that account. Enquiries were made and it was discovered that another woman lived with the sponsor. He was re-interviewed and he first said that she was only a girlfriend and then admitted that they had been married in England. He said that he had not told his second wife, the holder of the entry clearance. She said that she did not know of the first wife until her arrival. Leave to enter was refused on the basis that false representations had been employed for the purpose of obtaining the clearance. The adjudicator found that the appellant did not know the truth, which had been deliberately withheld from her by her sponsor for the purpose of facilitating her entry. The adjudicator therefore found both that false representations had been employed and that material facts had not been disclosed, each for the purpose of obtaining the clearance. On appeal, the IAT upheld the findings of fact, but preferred to rest its dismissal of the appeal solely on the basis of false representation.

McCowan LJ said (at 331) that the appellant's representation "was false in the sense of being inaccurate and that it was employed for the purpose of obtaining the clearance". On the other hand he continued:

"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…"

Staughton LJ said he agreed, and (at 332/3) expressed himself as stated at para 8 above. Mustill LJ merely said (at 333):

"I agree. On the facts of this case the decision of the Appeal Tribunal was plainly right."

In my judgment, this decision is not binding on this court to the effect that an innocent albeit inaccurate representation by Mr A is sufficient to require the mandatory refusal of leave to remain under the rule. I say that because McCowan LJ's ratio, in agreement with Nolan J at first instance, was that a dishonest representation had been employed for the purpose of obtaining the entry clearance, albeit through the medium of an innocent holder. It seems that Staughton LJ's explanation goes further (which is why it is his dictum which was relied on by the AIT in NA Pakistan and by Mr Collins on this appeal), but it does not seem to me that that explanation is the ratio of the case. Mustill LJ merely put it "on the facts". In any event, the rule discussed in Akhtar, while similar in some respects to the language of our rule in paragraph 322(1A) also differs in some respects. Thus there is no reference in the Akhtar rule to false documents, which must be to documents which tell a lie about themselves. There is no reference in the Akhtar rule to "Deception", as there is in the closely relevant paragraph 320(7B). And the effect of the Akhtar rule is merely to give the immigration officer a discretion to refuse entry, whereas the effect of the rule in paragraph 322(1A) (or paragraph 320(7A)) is to mandate refusal and, if Mr Collins is right to say that paragraph 320(7B) applies, to keep Mr A from reapplying for entry for potentially up to ten years. Thirdly, the other considerations arising from Lord Bassam's assurances and Mr Byrne's letter did not apply in that case.

As stated above, the AIT in NA Pakistan deployed Staughton LJ's dictum (at para 97) and described it as "settled law". Moreover, Macdonald's Immigration Law and Practice, 7^th ed, 2008, at para 3.76 regards Akhtar as authority for the proposition that "a false representation is simply a representation that is inaccurate and does not necessarily connote fraud". For the reasons given above, however, I beg leave to doubt that that proposition, accurate as it may be in certain contexts, can be safely generalised so as to apply to the rule here.

In the light of the further material which exists in this case, the Lords debate, the Bassam assurances, the letter, RFL04 and the IDI, it is necessary to refer to some further jurisprudence.

In MO (Nigeria) v. SSHD [2008] EWCA 308, [2009] 1 WLR 126, [2009] UKHL 25, [2009] 1 WLR 1230 the issue was which set of rules within the Immigration Rules applied to MO, those in force at the time of application or those in force at the time of the application's determination. For these purposes at any rate, Lord Brown of Eaton-under-Heywood contrasted the Rules with legislation. He said:

"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."

Lord Hoffmann in the same case said:

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…

In Mahad v. Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48 the appellants were family members who challenged the refusals of entry clearance officers under rules relating to the ability of their family sponsors to maintain them adequately in the UK without recourse to public funds. The appellants submitted that they could rely on third parties to maintain them. The AIT had in each case said that the rules precluded the relevance of such third party support. The appellants' submission succeeded. Lord Brown said this about the 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.

Finally it is necessary to refer to NF (Ghana) v. SSHD [2008] EWCA Civ 906. That case did not concern the Rules but the Secretary of State's policy for permitting parents unlawfully in the UK to remain here for the sake of their children where a child had been here a long time. The original policy (DP 5/96) referred to 10 years' residence, but a subsequent change to the policy reduced that requirement to only 7 years' residence on the part of the child. The amended policy was announced in Parliament in terms which also altered the discretionary test for the exercise of the policy. The texts evidencing these changes were hard to pin down (as a series of cases in the courts demonstrated) but in the end this court succeeded in NF (Ghana), with the assistance of the Secretary of State, in gathering together all the relevant material, which included a Parliamentary statement, a press release, and a "policy modification statement". This court reconciled all the material into a single policy, in line with the minister's Parliamentary answer, by which this court considered that the Secretary of State was bound.

Discussion

The essential question is whether "false" in either paragraph 320(7A) or paragraph 322(1A) is used in the meaning of "incorrect" or in the meaning of "dishonest". Whatever Staughton LJ may have said in Akhtar it is quite clear to me that in ordinary English usage "false" may have either meaning. While "incorrect" is given as its first meaning in the Concise English Dictionary, I am unable to regard its second meaning, which I gloss as "dishonest", as other than entirely normal: and that is so whether regard is had to the man or woman in the street or to the barrister in the Temple.

It seems to me therefore that there is an open choice as to the meaning to be given to "false" in the relevant rules. In that situation, I would prefer the meaning of "dishonest", for the following reasons.

First, "false representation" is aligned in the rule with "false document". It is plain that a false document is one that tells a lie about itself. Of course it is possible for a person to make use of a false document (for instance a counterfeit currency note, but that example, used for its clarity, is rather distant from the context of this discussion) in total ignorance of its falsity and in perfect honesty. But the document itself is dishonest. It is highly likely therefore that where an applicant uses in all innocence a false document for the purpose of obtaining entry clearance, or leave to enter or to remain, it is because some other party, it might be a parent, or sponsor, or agent, has dishonestly promoted the use of that document. The response of a requirement of mandatory refusal is entirely understandable in such a situation. The mere fact that a dishonest document has been used for such an important application is understandably a sufficient reason for a mandatory refusal. That is why the rule expressly emphasises that it applies "whether or not to the applicant's knowledge".

Secondly, however, a false representation stated in all innocence may be simply a matter of mistake, or an error short of dishonesty. It does not necessarily tell a lie about itself. In such a case there is little reason for a requirement of mandatory refusal, although a power, even a presumption, of discretionary refusal would be understandable. It is noticeable that paragraphs 320 and 322 also contain grounds on which entry clearance, leave to enter, or leave to remain, as the case may be, "should normally be refused". If on the other hand a dishonest representation has been promoted by another party, as happened with the sponsor husband in Akhtar, then it is entirely understandable that the rule should require mandatory refusal, irrespective of the personal innocence of the applicant herself. Therefore, the reason of the thing, as well as the natural inference that "false" in relation to "representations" should have the same connotation as "false" in relation to "documents", together argue for a conclusion that "false" requires dishonesty – although not necessarily that of the applicant himself.

Thirdly, the non-disclosure of material facts is also a mandatory ground of refusal. Such non-disclosure can be entirely honest, or it can be dishonest. If dishonest, the dishonesty may again happen without the knowledge of the applicant, or the applicant may be personally dishonest. The facts of Akhtar again come to mind. In this context, however, the rule says nothing about the knowledge of the applicant, which might suggest that the importance of this aspect of the rule lies in the word "material". There has been some uneasy jurisprudence about the effect of that word: see Akhtar itself (where the point did not have to be decided) and Macdonald at para 3.77. In any event, the rule at this point does not speak in terms of what is "false". I say nothing therefore about this part of the rule. In my judgment, it cannot be decisive as to the meaning of "false".

Fourthly, it seems to me that, in a situation where a word, such as here "false", has two distinct, and distinctively important, meanings, there is a genuine ambiguity which makes it legitimate, in construing Rules which are expressions of the executive's policy, to consider what the executive has said, publicly, about its rules. Clearly, what a minister says in Parliament, expressed as an assurance, and especially on the occasion of a debate arising out of the tabling of amended rules, is of particular, and may be of decisive, importance (just as the DP 5/96 policy was effectively changed by an announcement in Parliament, see NF (Ghana) above). In such a situation of genuine ambiguity, moreover, it seems to me that, perhaps exceptionally, it is even possible to get some assistance from the executive's formally published guidance, such as RFL04 or the relevant IDI. In saying that I do not think I am departing from the observations of Lord Brown in Mahad, cited above, about the function and status or probable general unhelpfulness of IDIs.

Fifthly, therefore, I consider it necessary in the present case to consider what assurances were given in, and arising out, of the Lords debate of 17 March 2008 when the rule in question was before Parliament. Lord Bassam then made a clear statement, in answer to Baroness Warwick who had noted the ambiguity of the word "false", that by "false documents" –

"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."