England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Upper Tribunal (Immigration and Asylum Chamber)
UTJ Clive Lane
IA/29599/2015

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/10/2018

Lord Justice Coulson :

1. Introduction

1. This appeal raises an issue about paragraph 322(1A) of the Immigration Rules (concerned with false representations or false documents or information) and the separate considerations that arise out of a false document, on the one hand, and a finding of deception on the part of the applicant, on the other.

2. The Factual Background

2. On 16 October 2008, the appellant was granted leave to enter the UK as a student. That leave was extended until 15 October 2011. On 12 October 2011, he was granted leave to remain as Tier 1 (Post Study Migrant) until 12 October 2013 and, on 15 November 2013, was granted leave to remain as a Tier 4 (general) student until 9 May 2015.
3. On 19 January 2015, the appellant applied for further leave to remain as a Tier 2 Skilled Worker migrant. This application relied, amongst other things, on a Degree Certificate, purportedly issued by University College London, and dated 26 July 2011. This referred to the appellant "having completed the approved course of study and passed the examinations as an Internal Student in the Faculty of Science". The degree was a Bachelor of Arts in Business Management.
4. The respondent asked the University of London to verify the certificate. In a letter dated 20 March 2015 they responded:

"I would like to inform you of the copy of Certificate and Transcripts you have provided were not produced by the University of London Central Offices and bear a number of discrepancies when compared to authentic documents. I can therefore confirm that the documents are not genuine.

We would like also to confirm that we cannot trace the above named individual as having graduated from the University of London."

5. As a result of this information, on 14 August 2015, the respondent refused the appellant's application for further leave to remain. The general grounds/reasons for refusal were stated as follows:

"As part of your application, you submitted a degree certificate and transcript for Bachelor of Arts in Business Management bearing your name which was purportedly issued by the University of London… I am satisfied that the documents are false because a representative of the University of London confirmed via email on 20 March 2015 that they had no records of you ever having graduated from the University of London and that the degree certificate in question was also false.

As false documents have been submitted in relation to your application, it is refused under paragraph 3222(1A) of the Immigration Rules.

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)…"

6. Accordingly, the respondent relied on two separate grounds when refusing leave to remain: the false document, and the additional finding of deception.
7. The appellant appealed against that decision to the First Tier Tribunal ("FTT"). The hearing took place on 14 April 2016, although the appellant did not attend due to ill-health. By a decision dated 19 April, the FTT rejected the appellant's appeal. The critical findings were as follows:

"6. I am satisfied that on the basis of the evidence before me that the Respondent can discharge the burden of proof upon him. I find that it is more probable than not that the appellant when applying for further leave to remain in the United Kingdom produced false documents claiming them to be genuine documents from the University of London. The submissions from the appellant's representative simply denied that that is the case. He has produced no evidence whatsoever to counter the allegation made by the respondent.

7. The appellant cannot discharge the burden of proof upon him and satisfy me that he was entitled to the leave to remain in the United Kingdom under the Immigration Rules. The respondent can discharge the burden of proof upon him and satisfy me on the balance of probability that the appellant produced false documents in support of his application."

8. The appellant appealed again to the Upper Tribunal ("UT"). The hearing took place on 22 December 2016 and the appellant gave oral evidence. The decision was dated 30 January 2017. The relevant part of the judgment was at paragraph 6:

"I consider that the issue in this appeal has been correctly addressed by Mr Tufan on behalf of the Secretary of State in the Rule 24 statement of 3 November 2016. It is clear that Judge Davies believed that the initial burden of proof rested upon the respondent who was making the allegation that the appellant had produced a false document. But that allegation required evidence to support it and the judge found (correctly in law) that the letter from the transcripts office constituted such evidence. Thereafter, it was for the appellant to discharge the burden of proving that he had obtained a degree from the University of London. The appellant acknowledges before the Upper Tribunal that he has not produced such evidence; he simply told me that he had no reason to believe that the certificate which he had obtained was false. Further, the appellant did not attend the First-tier Tribunal hearing; insofar as the appellant has been able to offer any explanation, the Upper Tribunal has received more evidence than Judge Davies who was obliged to determine the appeal in the First-tier Tribunal having only received submissions and the documentary evidence adduced by the Secretary of State. I cannot see that Judge Davies has erred in his analysis and, even if he has done so, then, if I were to remake the decision in the Upper Tribunal, I would dismiss the appellant's appeal. The Secretary of State has made an allegation and has supported it with evidence which the appellant has not attempted to contradict. In the circumstances, the appeal is dismissed."

9. Although the UT refused the application for permission to appeal again, permission to appeal was granted by the Court of Appeal on 16 February 2018.

3. The Law

10. Paragraph 322(1A) of the Immigration Rules reads as follows:

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

11. In AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773, at paragraph 67, Rix LJ said:

"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"."

12. In JK (India) v Secretary of State for the Home Department [2013] EWCA Civ 1080, it was accepted that personal dishonesty was of no relevance where (as in that case) a false bank statement was provided.
13. Both cases are therefore authority for the proposition that, whilst evidence of deception is required for a false representation, the use of a false document is itself a deception and, in the words of Rix LJ, "a sufficient reason for a mandatory refusal". To the extent that the decision of the UT in R (Ali Ahmed Agha) v SSHD [2017] UKUT 121 (IAC), a case to which we were very briefly taken during oral argument, suggests a blurring of this distinction, then I consider it to be wrong. In any event, on a proper analysis, it seems to me that the decision in Agha is explicable on its own particular facts.

4. False Document

14. The first issue is whether or not the respondent has discharged the necessary burden of proof under paragraph 322(1A) that the purported degree certificate dated 26 July 2011 was a false document. In my judgment, the respondent has discharged that burden. There is nothing to contradict what the University of London has said about the certificate's lack of authenticity.
15. It would have been open to the appellant to show that the University of London was mistaken and that, for example, the certificate did not bear any discrepancies when compared to authentic documents and/or was in any event genuine. Beyond the bare denial offered to the UT and repeated before this court, he has wholly failed to meet the challenge.
16. I take one small example of this failure, simply to illustrate the appellant's difficulties. The certificate says on its face that the appellant was an internal student at the University of London. As I understand it, the appellant accepts that this was false because he was never an internal student at the University of London, yet he offers no explanation of how and why he allowed this glaring mis-statement (on the face of a certificate on which he has relied) to remain uncorrected.
17. Accordingly, I consider that the FTT and the UT were right to say that, in the absence of any evidence to support the appellant's bare denial of the contents of the letter from the University of London, the respondent had properly discharged the necessary burden of proof as to the falsity of the certificate. To the extent that the appellant seeks to challenge that finding in this appeal, I reject it.

5. Deception

18. As noted above, the respondent went on to make a separate finding of deception. This matters because, pursuant to paragraph 320(7B) of the Immigration Rules, the consequence of that finding is that the appellant is prohibited for 5 (or 10) years from making a successful application for leave to enter.
19. On the face of it, it seems to me that the finding of deception was one that the respondent was entitled to make on the material then available. The University of London in their email of 20 March 2015 had been very careful to say that, in addition to the false certificate, they had also undertaken further enquires, which revealed that they could not trace the appellant as having graduated from the University of London. So, despite the fact that he had never graduated from the University of London, and would have known that he had not done so, the respondent was falsely representing that he had. That is the deception relied on by the respondent.
20. Again, it has always been open to the appellant to address this part of the case in his evidence. Contrary to Mr Hossain's suggestion, he has never been prevented from so doing: indeed, this court allowed him to rely on a witness statement, produced as recently as 8 June 2018, because it purported comprehensively to tell his side of the story. But at no time, either before this appeal, or in the statement of 8 June, has the appellant ever provided any evidence of undergraduate study such as to justify the award of the degree shown on the certificate.
21. In my view, this is a glaring omission. Although in his statement he makes a vague reference to his attendance at "the Lincoln's College Manchester" which he says subsequently "closed down", the appellant gives no detail at all about his time at this institution or how it related to the business management degree from the University of London which he claims to have obtained. The appellant has chosen to give no evidence about where precisely he studied in order to obtain this degree; what he was told about the relationship between the Lincoln's College and the University of London; who his friends and colleagues were during his years of study; who taught him; what precisely he studied; what his pattern of study was; which library or research facility he used; what his extra-curricular activities were; and what he achieved term-by-term, year-by-year. Moreover, the appellant has disclosed not a single piece of paper to evidence any part of what would have been a three-year endeavour.
22. It appears that both the FTT and UT approached the separate issue of deception on the unstated assumption that, in the absence of any explanation of the false certificate, and the appellant's attempted reliance upon that document, the respondent had been entitled to make a finding of deception. They did not expressly address the issue. In my view, since it was a separate finding by the respondent, and thus part of the appeal to the FTT and the UT, they should have done.
23. During his oral submissions, Mr Hossain invited this court to reach its own conclusions as to deception if it was unclear what the UT and FTT had decided on the topic. Although he appeared subsequently to change his mind, and to argue that the matter should be remitted to the UT, I consider that his first thought was correct: in this case, on these facts, I can see no possible basis for remitting this matter. After all, this is the third appeal in this case and we allowed into evidence the appellant's recent witness statement precisely because it represented all that he wanted to say on the issue. This court can therefore reach its own view on deception.
24. In my view, the respondent's finding of dishonesty has been made out. There are two principal reasons for that.
25. First, this is not the sort of case where the falsity of the document may be unconnected with the person relying upon it. In some immigration cases for example, an applicant may be seeking leave to remain on the basis of a document which, unbeknown to the applicant, has been forged by a third party. There the falsity of the document has been established, but not necessarily the deception of the applicant. But it is very difficult to see how such a distinction could arise in a case of this sort: the applicant has always known that he was not an internal student at the University of London but has sought to rely on a document which stated the contrary. On that basis alone, I consider that deception on his part has been made out.
26. Secondly, I have already explained the appellant's striking failure to do anything other than provide a bare denial of the central allegations, and his failure to provide any details of an alleged three-year course of study. The absence of any alternative narrative also leads inevitably to the conclusion that the respondent was entitled to make the finding that the appellant was guilty of deception.

6. Article 8

27. Finally, I note that paragraph 20 of Mr Hossain's skeleton argument makes a faint reference to Article 8, on the sole basis that the appellant has been in the UK for more than 9 years. He also referred to this in his oral submissions, when he complained that neither the FTT nor the UT had addressed the issue. There are two answers to that.
28. First, although a possible claim under Article 8 was referred to, in two lines, in the application to the FTT, it was not pursued in the UT, and permission to appeal to the Court of Appeal was not sought, and was not granted, in respect of it. Such a claim cannot therefore properly arise for consideration on this appeal.
29. Secondly, it is trite law that, in the absence of any 'solid grounds' for the Article 8 claim, the making of a dishonest application will outweigh any other considerations: see Tomlinson LJ in JK (India) v SSHD [2013] EWCA Civ 1080. Here the Article 8 claim is solely based on the appellant's 9 years in the UK. No other matter is advanced in support of it. In my view, that is plainly outweighed by the deception, particularly since the 9 year period began in 2008, at the same time as the degree course which is the subject of the false certificate.
30. For all those reasons, I would dismiss this appeal.

Lord Justice Floyd:

I agree.