COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Senior Immigration Judge Jarvis
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
LORD JUSTICE TOMLINSON
| SIDATH DON KULASEKARA
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Christopher Staker (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 14 February 2011
Crown Copyright ©
Lord Justice Stanley Burnton:
"(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 Court held that "false" in this Rule means "deliberately false". In other words, it does not apply to a representation or information that is made or supplied by an applicant innocently: the applicant must have deliberately made or provided the representation or information, knowing it to have been false, if the Rule is to apply.
"I am satisfied that all the documents submitted from the [CCOL] were false, because [CCOL] has never offered a legitimate Post Graduate Qualification in Business Management …. As false documents have been submitted in relation to your application, it is refused under paragraph 322(1A) of the Immigration Rules."
"2. Sometime in the summer of 2008 the United Kingdom Border Agency (UKBA) began to be concerned about the large number of applications it was receiving for the new Tier I (Post-Study Work) scheme (which had begun on 30 June 2008) from students enclosing PgDips in either BM or IT awarded by the CCOL. By 6 October 2008 spreadsheets relating to 204 CCOL-related applications had been compiled revealing a number of anomalies. Monitoring continued over the next few weeks. A further reason for concern was that it had been reported that a significant number of applications put forward academic transcripts with identical percentage marks across all exams or modules. Over 2,500 CCOL-related applications falling into the PgDip BM or PgDip IT categories were received between 22 October 2008 and 22 December 2008. In addition, a check on the Home Office records disclosed that there were 181 students with current leave to remain within the student category to attend CCOL and a further 136 had valid entry clearance. On 31 October 2008 all CCOL-related applications were put on hold. The mounting causes for concern led to Operation Asterion, a UKBA led enforcement visit paid on 2 December 2008 by the Area 3 Criminal Investigations Team accompanied by officers from the London and South East Intelligence Unit (RIU). That visit compounded UKBA's concerns about the college and led to them taking steps to ensure that the college was removed from the DIUS register on 4 December 2008. It appears that the college then closed on 8 December 2008 and it has never re-opened. On 22 December 2008 UKBA issued instructions to caseworkers to refuse all immigration applications based on CCOL studies or awards."
"Miss Ullah had given two statements, one on 4 December 2008, another on 3 June 2009. In her 4 December statement she described her role as the head of department for business and management within CCOL. In performance of this role she managed the entire Association of Business Executives (ABE) department, as well as being course instructor on this course from July 2007. … She stated that 'I am certain that no courses were and have been running for postgraduate diplomas of any type at [CCOL], nor are we an organisation that can award such a qualification'. In her section all exams had to be marked by the awarding body. In her second witness statement Miss Ullah said that she had been employed at CCOL, originally on a part-time basis, since January 2006, becoming Head of Business Management from January 2007 until the college closed. Her responsibilities included overall responsibility for the day to day running of the Business Department and the ABE courses offered within her department. She had an overview of the attendance in all of the business classes as lecturers would report their attendance result to her. … She was also responsible for the hiring of lecturers for the department, although she was not involved in the setting up or teaching of the ILM programme which started in mid-2008. … During her time at the college she did not see any PgDip course taught nor any PgDip students either in class rooms or on any attendance records. She had not heard of any curriculum for such a course, nor had she ever met any staff members who were teaching a PgDip in BM. She was confident in saying that the PgDip in BM did not exist. It was not possible that an entire PgDip course could have been offered in her field without her being aware of it. Accreditation from ILM for CCOL to run its Postgraduate diploma course was for a very short time. She mentioned that towards the end of 2008 she noticed a number of people who would begin to arrive at reception after 5 pm. They would always ask for Mr Kashif. They would arrive in groups of 5 or 10 and would group together in the student common room on the ground floor. She recalled overhearing a conversation when one male was speaking on his mobile telephone in Urdu. He told the person to whom he was speaking that he was not willing to pay £2,500 and he would ask if he could pay less. She gave in her notice on 5 November because she had become deeply suspicious about what was happening at the school. Some students told her that CCOL sold fake diplomas around London and had many agents. She was serving out her notice period at the time of the visit from immigration officers and police on 2 December 2008."
"In the light of the above we find that the respondent has discharged the burden of proving on the balance of probabilities that CCOL never ran its own PgDip courses in BM or IT. We further find that the period of time during which the college was ILM-accredited for the Level 7 ILM diploma in Executive Management was too short for any CCOL student to have completed that course and those who had been registered with the ILM could never have completed various requirements for its successful completion. We should add that in the end the debate about the standard of proof has proved somewhat academic, in that we are absolutely confident that even on Mr Macdonald's view of this (as being indistinguishable from the criminal standard of proof) our findings on the aforementioned matters would have been the same.
147. It will be apparent from our above findings that we consider that no person claiming to have undertaken a PgDip course in IT or BM at CCOL can have done so without knowing that such a claim amounted to a false representation."
"The appellant said that he had paid £4000.00 plus VAT to CCL for the course. He did not know the total cost but it was nearly £5000.00. He had no supporting evidence to show that he had paid this sum to CCL such as a receipt or any bank statement to show a debit to CCL or a withdrawal of the relevant sum. He agreed that he had finished the course less than 2 years ago and not three years ago as he has just said. The only materials that he had retained from CCL were some 30 odd handwritten notes from classes. He had no lecture handouts, no reading lists or other documents. He said that there were no reading lists because there was self-study and students looked things up in the library. Books were expensive. He was told in class which books to look at in the library. He had no lecture timetable to produce."
"17. In addition, the appellant has produced a diploma and an advanced diploma in hotel management from the Institute of Hospitality, Confederation of Tourism Hotel Catering Management. The diploma is dated 30 November 2007 and the advanced diploma 28 March 2008. These were not referred to at the hearing so that it is not clear where and when the appellant was following this course of study save to say that it overlaps with the time when he was said to have been at the CCL studying for his PGDipBM.
18. There is also a letter dated 10 December 2007 from Thames Valley University (TVU) to the appellant making him an offer of a place to commence studies on a BA (Hons) Hospitality Management degree, year 3, in February 2008, provided that he has passed all units in the advanced diploma CTHCM. (This appears to be the advanced diploma dated 28 March 2008). Clearly, therefore the appellant could not meet the requirements of TVU in order to take up a place in February 2008. He said that he had chosen CCL because it was cheaper and also because he would not have been able to start at TVU."
"I am satisfied that the witness statements, and in particular that of Ms Ullah, as well as the determination in NA and Ors do suffice to enable the respondent to discharge the burden of showing that the CCL PGDipBM, dated May 2008, number CCL-05870068, produced by the appellant in support of his IGS application is not likely to be genuine. It follows that the respondent has shown that the appellant did use deception in the past in relation to this previous IGS application and therefore that he had made a false representation in the current application (Q22, pageA15 respondent's bundle)."
"I reject the appellant's evidence as to all matters concerning CCL and the certificate and transcript that he has produced. He was unable to support his claim to have studied at CCL as claimed with any cogent evidence. He told Immigration Judge Callender Smith that he had completed both the diploma and advanced diploma in Hotel management before he enrolled at CCL in 2007, but the dates of these awards overlap with the period when he said he was studying at CCL."
"for the respondent to satisfy us he has discharged the burden of proof on him on the balance of probabilities he would, in the context of this type of case, need to furnish evidence of sufficient strength and quality and he (and the Tribunal) would need to subject it to a "critical", "anxious" and "heightened" scrutiny."
Lord Justice Tomlinson:
Lord Justice Longmore: