ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE MOORE-BICK
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|SECRETARY of STATE for the HOME DEPARTMENT
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Miss Susan Chan (instructed by Treasury Solicitor) for the respondent
Hearing dates : 2nd March 2011
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Lord Justice Moore-Bick :
"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?"
and attached to the question was the following Note:
"Note 1: Convictions spent under the Rehabilitation of Offenders Act 1974 need not be disclosed. More information about the Act is given towards the end of this section."
"Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused
. . .
1(A) 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."
"We should add another point on false representations. It was inherent in Mr. Nasim's submissions that a false representation made innocently ought not to cause paragraph 322(1A) to be applied. We are unable to accept that submission. It does not seem right to us that the Secretary of State ought to grant leave on a false basis , provided only that the falsity was unknown to the applicant. If a false statement is made in an application, the Secretary of State must be entitled to refuse it. That, indeed, appears also to be the effect of the words in parenthesis in paragraph 322(1A) itself."
(i) that the Secretary of State refused the application solely on the grounds of a failure to disclose a material fact and that the Upper Tribunal and the AIT were therefore wrong to dismiss the appeal on the grounds that the appellant had made a false representation, which was not a matter in issue before them;
(ii) that the Upper Tribunal was wrong to hold that there was no difference in this case between a false representation and the non-disclosure of a material fact;
(iii) that the appellant's conviction was not material to his application; and
(iv) that the Upper Tribunal was wrong not to set aside as perverse the AIT's finding that the appellant had chosen not to answer Question E1 truthfully in the hope of improving the chances of his application's being successful.
"In your application you said that you have never been convicted of a criminal offence.
Failure to disclose material fact
I am satisfied that the statement was false and I am satisfied that this fact was material to the application because it is a mandatory field on the application form for which you signed a declaration stating that the information given by yourself was true.
As material facts were not disclosed in relation to your application, it is refused under paragraph 322(1A) of the Immigration Rules."
There then followed a passage dealing with the appellant's failure to provide sufficient evidence to show that he satisfied the financial requirements of the Immigration Rules, which I need not quote because it is no longer relevant. The letter then continued:
"For the above reasons I am also satisfied that you have used deception in this application."
"It is fair to say that Mr. Nasim had some difficulty in showing how the application should have been granted under the rules. His submissions were devoted to the materiality of non-disclosure but he was unable persuasively to explain how, given the false representation, the application could have succeeded. The truth of the matter is that this is a case where there is no essential difference between false representation and non-disclosure. The non-disclosure was a false representation, because it was an answer to a direct question. The answer "no" both was false and constituted a failure to disclose what would have been disclosed if the question had been answered truthfully. . . "
Lady Justice Arden:
Lord Justice Ward: