England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[IA/06752/2012]

		Royal Courts of Justice Strand London WC2A 2LL
		18 July 2013

LORD JUSTICE TOMLINSON:

1. This is an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 25 September 2012. That in turn dismissed the appellant's appeal against the decision of the First-tier Tribunal promulgated on 17 May 2012, which in turn had dismissed an appeal against the decision of the Secretary of State refusing to vary her leave to remain in the United Kingdom.
2. The appellant is a citizen of India born on 21 January 1986. She came to the United Kingdom as a student on 3 July 2009, when she was therefore 23 years of age, and was given leave to remain until 3 April 2011. On 11 March 2011, she applied to vary her leave to remain. The Secretary of State refused that application on two grounds, the relevant one of which is that she refused it under paragraph 322(1)(a) of the Immigration Rules, HC 395, on the basis that a false document had been submitted in support of the application. It is against that refusal that the appeals were brought, and in respect of which the appeal to this court is brought today.
3. The application made by the respondent was supported by three bank statements, one from the Central Bank of India, which was the one found to be not a genuine document, one from Barclays bank and one from the State Bank of India. It is apparently the case that reliance upon the false document from the Central Bank of India was, in the circumstances, wholly unnecessary because reliance upon the other two bank statements would have demonstrated that the appellant had available sufficient funds to satisfy the requirements of the rules. But rule 322(1)(a) is couched in terms which indicate that, notwithstanding the lack of necessity to rely upon the document, given that the document had been submitted in support of the application, even if it was not ultimately material to it, the application fell to be refused. The rule reads:

"Grounds on which leave to remain and variation of leave to enter or remain into the United Kingdom are 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 or in order to obtain documents from the Secretary of State or a third party required in support of the application."

4. The effect of that provision was considered by this court in the case of Adedoyin v the Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564, and at paragraph 67 of the leading judgment, which was delivered by Rix LJ, we find the following:

"67. 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'."

At paragraph 76, Rix LJ referred again to the circumstance that:

"Dishonesty or deception is needed, albeit not necessarily that of the applicant himself, to render a 'false representation' a ground for mandatory refusal."

5. The debate before the First-tier Tribunal concerned in part the question whether or not the appellant had known of the use of the false document in support of her application. It was her contention that an agent, a Mr D'Souza, had been involved in the submission of the application on her behalf and that she was unaware that he had used a false document. The judge in the First-tier Tribunal approached the matter on the basis that given that the appellant conceded that the document used had not been a genuine document, this had the effect of shifting back to her the burden of proof of the lack of complicity in its submission in support of her application. The judge therefore proceeded to consider the evidence that had been placed before the Tribunal, and concluded that, on the balance of probabilities, the appellant had not shown that Mr D'Souza had acted without her knowledge in submitting the false bank statement in support of the application.
6. The judge then proceeded to deal with the Article 8 application that was made on behalf of the appellant, but concluded that the finding that the appellant had not discharged the burden of proof in demonstrating the lack of complicity was effectively conclusive of the Article 8 issue.
7. It is now accepted by Mr Slatter on the appellant's behalf that the question of the appellant's personal dishonesty is of no relevance to the determination of the question whether the appeal can succeed in reliance upon the Immigration Rules. He concedes that in the light of the decision of this court, to which I have referred, in Adedoyin, and given the plain meaning of rule 322(1)(a), the application to vary the leave to remain fell to be refused.
8. Mr Slatter accepts that the only basis on which he can now seek to succeed in the appeal against the refusal of the Secretary of State to vary the leave to remain is in reliance upon Article 8 of the European Convention on Human Rights, and in particular he submits that this is one of those cases in which a student coming from abroad, able to demonstrate the establishment of a private life within this country, is entitled to protection under the Article 8 approach. He reminds us, without citing to us any authority, that in circumstances where it can be demonstrated that a student coming from abroad has made an investment in his or her education, the court may well take the view that it would be disproportionate to require the student to leave the country before a relevant course of study upon which he or she has embarked has been completed, particularly in circumstances where there may have been a substantial investment in fees, and of course in the cost of the maintaining the student whilst pursuing a course of studies.
9. In those circumstances, it is of course highly relevant to examine what precisely this appellant has been doing since she arrived in July 2009, and what it is that she wishes to do if given leave to remain. The witness statement which we have in our bundles, which is a witness statement of the appellant dated 5 March 2012 does not deal at all with this issue. Furthermore, there is no evidence before us in the shape of other material placed before the Tribunals below which bears on the issue, but we are able to glean from the findings of the First-tier Tribunal certain basic facts. In particular, it would seem that the appellant was able to study for what is described as an IESOL Diploma, and that she was issued with certain certificates which are described as the relevant "equivalent certificates" on 24 June 2011, 29 June 2011, and 4 June 2011. That is to be found in paragraph 26 of the findings of the First-tier Tribunal.
10. It would appear that it was in anticipation of the successful completion of that course that she made her application on 11 March to vary her leave to remain. That was, it would seem, with a view to pursuing a further course of study to lead to an ACCA qualification. The evidence suggests that she was advised that the best place in which to pursue a course of study in order to lead to an ACCA qualification was Union College. However, the findings also indicate that Union College ceased to operate, and so the position, as best we can discern from the material that has been placed before us, is that the appellant does not have a place to study on any further course, and it may be that the position is that no institution would be willing to grant a place unless leave to remain is regularised.
11. The fact remains, however, that there is no suggestion that the appellant has obtained a place at any recognised institution at which she wishes to pursue further studies. There is no suggestion that she has paid any fee in advance towards the provision of further education, and the facts as best we can find them, without, it must be said, any very great assistance on the appellant's behalf, is that she has come to this country, pursued a course of study which was completed in mid 2011 and that she would wish to pursue some further study of a somewhat uncertain nature in relation to which she has made no definite arrangements at all.
12. In those circumstances we have to consider whether or not the refusal of the application to vary the leave to remain, with the consequence that the applicant would be required to leave, is a disproportionate interference with such rights as she has established under Article 8 in respect of her private life.
13. In dealing with this, we invited Mr Slatter, to address us on the basis that the judge in the First-tier Tribunal was wrong to regard the appellant as under a burden to prove her lack of complicity in the submission of false documents, and Mr Slatter's submission was that in such circumstances, the case for allowing the appeal was made out simply on the basis of the material to which I have already referred. But he also submits that, in any event, it is of importance, so far as concerns the appellant, that the matter be remitted in order that the question of whether or not she was dishonest in making her application can be resolved one way or the other and without there being, as he would put it, resort to an incorrect allocation of the burden of proof. For my part, I am prepared to approach the appeal on the basis that it has not been demonstrated by the Secretary of State that the appellant was herself complicit in the submission of a false document in support of her application. I emphasise that I simply proceed upon that basis for the purposes of the appeal without intending in any way to express a view whether or not, given the nature of the material before the First-tier Tribunal, a finding of dishonesty would or would not be justified. I note in particular that the Judge in the First-tier Tribunal was highly critical of the appellant in failing to produce evidence which he said was available to her, which would demonstrate her honesty or lack of complicity. I express no view whatever on whether or not the appellant was dishonest in the manner alleged.
14. It seems to me, even assuming in the appellant's favour that she was entirely innocent, as she suggests, that the case that is put forward on her behalf under Article 8 is simply very far short of that which would be required in the present situation to outweigh the policy considerations which plainly underlie the adoption by Parliament of rule 322(1)(a). That rule is deliberately couched in terms intended to prevent the making of dishonest applications and involves the result that applications are to be refused even though the dishonesty employed may not be that of the applicant himself or herself.
15. We are on this appeal concerned only with the question of whether or not the Secretary of State should have varied the leave to remain upon the basis of the material before her, and we are concerned with the question whether, having regard to the position as it now appears, it would be an unjustified interference with such rights as the appellant has established under Article 8 to maintain the refusal of the variation of leave.
16. It is obvious, in my view, that given the nature of the rule with which we are concerned, substantial weight must be given to the clear intention of Parliament that the making of dishonest applications be deterred and, so far as possible, prevented. An applicant who seeks to satisfy the court in such circumstances that application of that rule would be disproportionate must, in my view, demonstrate some solid grounds on the basis of which it can be said that some right to a private life within this country has been demonstrated.
17. In this context the sort of considerations which might suffice are those to which I have already referred, that is to say, investment in a course of education which might otherwise be interrupted. The present is not such a case. The course of education for which the applicant was given leave to come to this country in the first place has been successfully completed. She has no concrete plans for any further course of study. She has made no investment in relation thereto.
18. We are not concerned today to reach any conclusion as to how any further application to enter may be dealt with in the event that such an application is made, and in particular whether on that occasion the appellant will be in a position to satisfy the Secretary of State that she was honest in her previous application such that the circumstance that a false document was used should be regarded as no relevance to a future application. A further application of that sort is a matter obviously for the future, and is not something for us to consider today.
19. In my judgment, the appellant has fallen very, very far short indeed of demonstrating that there are here Article 8 considerations which should lead to the allowing of the appeal and the remittal to the Upper Tribunal of the question whether or not the Secretary of State's decision should have been quashed.
20. For all these reasons, therefore, I would dismiss this appeal.

LORD JUSTICE LEWISON:

21. I agree.

LORD JUSTICE UNDERHILL:

22. I agree.

Order: Appeal dismissed