England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9 April 2014

MR JUSTICE JAY:

1. This is an application by way of judicial review pursuant to which the claimant seeks to challenge a decision of the Secretary of State for the Home Department given on 13 July 2011, first of all to refuse his application to vary his leave to remain on the basis that he failed to disclose a material fact pursuant to paragraph 332(1A) of the Immigration Rules; and, secondly, to refuse future applications for entry clearance in accordance with paragraph 320(7B) on the basis that he had used deception on his application to vary his leave to remain. That decision was reconsidered by the Secretary of State and maintained in a further decision of 10 October 2011. Following a hearing before Mr Philip Mott QC sitting as a Deputy High Court Judge on 16 February 2012, permission to apply for judicial review was granted on a single ground, namely that the Secretary of State's decision was not properly in accordance with paragraph 322(1A) and was thereby unlawful.
2. The essential factual background to this case is as follows. The claimant is a citizen of the Kingdom of Nepal and was born there on 12 February 1982. On 23 February 2006 he made an application for entry clearance as a student. It seems that he submitted a bank balance certificate and statement of account in support of that application, as he would have needed to do to satisfy the Entry Clearance Officer of the means requirement in the Rules.
3. On the same day the Entry Clearance officer in Kathmandu sent an urgent request by fax to the relevant bank seeking its assistance, namely whether it could verify the balance certificate and statement of account, which had purportedly emanated from that bank. The document verification report which came from the bank is no longer available. The Secretary of State has explained through a witness statement that the relevant evidence simply does not exist. However, it is clear from the Entry Clearance Officer's refusal decision dated 28 February 2006 that there was, at one stage at least, a document verification report in existence since it is referred to expressly at page 79 of the bundle as part of the refusal of entry clearance decision. The Entry Clearance Officer stated that he was satisfied to a high degree of probability that not all of the documents submitted were genuine, and the application was therefore refused pursuant to paragraph 320(21) of the Immigration Rules.
4. Undaunted, on 16 August 2006 the claimant made another application for entry clearance as a student. He was interviewed in connection with that application on 29 August 2006 and the relevant interview template has been made available. It appears at page 81 of the bundle. At the start of the document, before the questions and answers are set out, the following appears:

"SUBMITTED FORGED/COUNTERFEIT BANK STATEMENTS LAST TIME, BANK CHECKS CONDUCTED NOW STATE THAT DOCS ARE GENUINE - IS HIS INTENTION GENUINE THO? - HE IS REGISTERED WITH ACCA, INTERVIEW TO CONFIRM INTENTION TO LEAVE UK AT THE END OF HIS PROPOSED STUDIES."

5. This requires some interpretation. Mr Malik submits that this wording is consistent with his client maintaining that the documents submitted last time, namely in February 2006, were genuine documents. I simply cannot accept that interpretation. What the Entry Clearance Officer is doing is setting out his state of mind before the interview is about to start. He is pointing out that in February 2006 counterfeit bank statements were submitted. He is also pointing out that in relation to the bank documentation submitted on this occasion, namely in August 2006, verification checks with the relevant institution had demonstrated that the documents were genuine. The issue therefore was whether the claimant's intention was genuine, namely whether it was truly his intention to study in the United Kingdom, rather than to seek to come here for a different purpose, and to leave at the end of his proposed studies.
6. A number of questions were then asked of the claimant. It seems from the answers given that the claimant gave frank and, if I may say so, somewhat respectful, if not deferential, answers. He is not, of course, to be criticised for that. He was asked in terms who was paying for the course here in the United Kingdom and he stated "my father, my mother and my uncle and aunt". Question 13: "Last time you applied for a student visa to study the same course, why was this visa refused?" Then the answer given was, "Do [I think it should say due] to the financial problems sir". This gives the reader some indication that the claimant was well aware that there were difficulties in relation to the evidence he was submitting on the previous occasion. Then question 14 is more specific: "I note that you submitted forged bank documents to show that you have more money than you actually hold, is this correct?" The answer given was, "Yes". That clearly is a reference to what happened in February 2006, not to what was happening in August 2006. Question 15: "Where did you get the forged documents from?" Answer: "From my nephew sir". That was a clear and precise answer and a clear admission that the claimant was accepting both that the documents submitted in February 2006 were forged and that he knew that they were forged.
7. All of this might have been a basis for refusing the claimant an entry clearance to come to the United Kingdom on the basis that previous deceptions had been practised. However, for reasons which are not altogether clear, and which I will need to come to in a moment, the claimant was nonetheless granted entry clearance to come to the United Kingdom as a student. This was on 29 August 2006.
8. The claimant came here on 6 September 2006. On 12 April 2007, just outside the currency of his then extant leave (although nothing turns on that) he was granted further leave to remain as a student until the following year. There were then a series of further applications for leave to remain for one year, which applications were granted.
9. It is not clear from the available evidence what questions, if any, the claimant was asked about what had happened as to previous applications for entry to the United Kingdom. I infer that it is probable that the application form which the claimant must have completed in 2007/2008 et cetera contained the same question D21 which we see at page 90 of the bundle. That question was, "Has the applicant ever used deception when seeking leave to enter or leave to remain?" However, it is not safe to infer what answer the claimant gave to that question. I have to be in a state of agnosticism as to that, and to the extent that I am exercising a review jurisdiction the Secretary of State has taken no point on that particular aspect of the matter in the witness statement which I have considered.
10. On 21 April 2011 the claimant made yet another application for leave to remain as a Tier 1 (Post Study Work) Migrant. He completed an application form, most of which, perhaps all of it, is in the bundle. It is clear from page 90, as I have already pointed out, that he was asked at D21 whether he ever used deception when seeking leave to enter or remain, and the answer given was no.
11. On 13 July 2011 the Secretary of State refused the application to vary leave to remain on the basis that the claimant had failed to disclose a material fact pursuant to paragraph 322(1A) and furthermore that future applications for leave for entry clearance would be refused. The Secretary of State's reasons were as follows:

"In your current application made on 21 April 2011, you failed to disclose that you used deception in your previous immigration application made on 23 February 2006 for entry clearance. In your Tier 4 General application you have stated 'No' under D21 of Section 2 in confirmation that you have never used deception.

I am satisfied that these facts were material to the application because when you applied for entry clearance on 23 February 2006 in Kathmandu you supplied false documents. This has been confirmed by the entry clearance office ... "

12. Pausing there, it is not clear to me why the Secretary of State is saying that the claimant failed to disclose the previous deception. It would have been for more straightforward to say, and frankly easier to prove from the Secretary of State's perspective, that the claimant made a false representation in answer to question D21 at the top of page 90 because instead of answering no, the correct answer was yes. Ultimately though, nothing turns on that nicety.
13. On 10 October 2011 the Secretary of State reconsidered and maintained her decision. Her reasoning was more or less identical.
14. That is the essential factual background to this case but it is necessary to understand what each party has to say about the evidence which I have summarised. The Secretary of State has filed a witness statement from Milind Deshpande, who is a Senior Case Worker at UKBA and has been serving in that role since 2007. Much of his evidence is a review of the documentary materials, which I have already conducted. The deponent does address the issue as to why the claimant was granted entry clearance on 29 August 2006 notwithstanding that he had admitted the use of deception 5 or 6 months previously. Paragraph 7 of the deponent's witness statement attempts to provide an answer to that issue but, in my judgment, it does not really achieve its objective. At this distance it is not possible to understand why the Secretary of State, through her Entry Clearance Officer, did grant entry clearance back in August 2006, and in the end I doubt whether it really matters. I suspect that what might have happened is that the Entry Clearance Officer was struck by the frankness of the claimant and by the quality of the evidence which he was able to bring to bear demonstrated that he intended to come here as a student and had the means to back it. After all, the Entry Clearance Officer had a discretion - that was Mr Barnes' submission - on my understanding of the Rules then extant, and was not required to refuse entry clearance on this occasion.
15. The deponent also addresses the issue of dishonesty. Paragraph 20 of the witness statement is material and I set it out in full:

"When refusing this application, I thought that dishonesty was involved. I considered that where someone failed to disclose a material fact in relation to the application, that must entail an element of dishonesty with an intention to hide the material fact from disclosure. As such I made a refusal decision in that application because the applicant was dishonest in not disclosing the material fact that he had previously used forged bank documents to seek an entry clearance. I considered if this could be an innocent act; however after looking at the application form, I noted that the application form asks a direct question under Section D21 in the form, which obviously prompts the applicant to declare the fact if any deception was used and there is also a box provided in the form to give details and dates, when the deception happened. I cannot perceive any reasons for anyone to misinterpret it or to fill it incorrectly or miss it, when the rest of the form is duty completed."

16. In my judgment, paragraph 20 of the witness statement discloses a somewhat simplistic view of human nature. The deponent appears to be of the view that the answer must be dishonest and that anybody looking at the form correctly would complete it accurately and honestly. But it is not anything like as simple as that. What is material in this case is that some time had elapsed between 2006 and 2011 and, in theory at least, if not in practice, it is quite possible that the claimant simply forgot what happened back in 2006 and its significance. I emphasise the significance of what happened since the claimant could have been forgiven for thinking that the dishonesty practised in February 2006 had ceased to possess any real relevance since the Entry Clearance Officer had made allowance for it in August 2006. An additional feature of this case is, as I have already pointed out, further applications were made in 2007, 2008, 2009 and 2010 and although no inferences can be made as to how the claimant completed the form, he was granted leave to remain on each occasion.
17. Having said all of that, although I am personally dissatisfied with paragraph 20 of the witness statement, I cannot conclude, to the extent to which it is relevant, that the decision was a Wednesbury unreasonable one, I am simply saying it is a decision I myself would not have reached, or at least would not have reached for the reasons given by the deponent.
18. But the matter does not end there because the claimant has recently, namely on 31 March 2014, well out of time, placed in evidence his own witness statement, which appears at pages 61 and 62 of the bundle. His witness statement contains a fair amount of advocacy and argument, which it should not have done. But worse than that, in my judgment, paragraph 4 of the witness statement in the end does not help the claimant at all because he says this:

"I made a fresh application for entry clearance with almost the same documents that I had submitted previously. I was interviewed in connection with my fresh application. In the interview, I was asked some general questions about my application. I answered all the questions. My application was successful and I was given entry clearance on the same day. I note that the Defendant makes an allegation that in that interview I accepted submitting forged bank statements. I strongly refute this allegation. I never said that. Why would I when I never submitted forged documents. In fact, I remember that, at the outset of my interview, the interviewing officer told me that my earlier application was refused because there was a concern that bank statements submitted were forged but the bank had confirmed that they were actually genuine. I have seen the interview notes that are attached with Milind Deshpande's witness statement. Although I do not remember all of the questions that were asked, I am pretty sure that no questions were asked about forged bank statements. I had no recollection of questions 14 and 15 ...."

19. The trouble with this evidence is that it is completely unconvincing. I am bound to accept the accuracy of the Entry Clearance Officer's notes of the interview which took place on 29 August 2006. Not merely do they ring true but no application was made to cross-examine any witness. It is therefore difficult, if not impossible, for the claimant to seek to persuade the court that he did not submit forged documents in February 2006. Moreover, the fact that he is trying to persuade the court of something which it is difficult to accept is correct further undermines his credibility. Additionally, as Mr Barnes pointed out, it also makes it problematic for the claimant to say that he had forgotten the answers he had given either in February or August 2006 when he came to complete the application form in 2011. I will be returning to the significance of my findings on this point in due course.
20. The relevant Immigration Rules are as follows. Paragraph 320 of HC395 applies to Entry Clearance Officers, paragraph 322 to the Secretary of State. They are in very similar terms. As at 10 October 2011, paragraph 322(1A) provided:

"Grounds on which leave to remain, variation of leave to enter or remain in the United Kingdom are to be refused ... 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."

Paragraph 320(7A) is in very similar terms.

21. For the avoidance of doubt, the Rule which is in play in the instant case is, strictly speaking, paragraph 311(1A) because the refusal decision made in July 2011 was the Secretary of State's decision, not the Entry Clearance Officer's decision.
22. It is also necessary to make reference to further provisions in paragraph 320(7B) of HC395 since these bear on Mr Malik's first submission. Paragraph 320(7B) provides that entry clearance "is to be refused":

"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 Entrant;

(d) using Deception in an application for entry clearance, leave to enter or remain ... (whether successful or not); ... "

23. Mr Malik's first submission is that this is a precedent fact rather than a Wednesbury type case. In other words, that it is for this court to decide as a matter of fact whether or not deception was used in the application form in 2011 rather than merely to review the decision of the Secretary of State who was satisfied of those matters. In support of that submission Mr Malik brings to bear a number of authorities. First of all, it is clear in this domain that deception has to be established: not merely that false representations were deployed but representations which were dishonestly false, see AA(Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 and R(Thebo) v Entry Clearance Officer Islamabad [2013] EWHC 146 (Admin). The varying use of the concept of deception would appear to bring this case, says Mr Malik, closer to the illegal entry category recognised by the House of Lords in the famous case of Khawaja v Secretary of State for the Home Department [1984] 1 AC 74.
24. Further, Mr Malik refers to decisions of the Immigration Appeal Tribunal which show that it is insufficient merely for the Secretary of State to assert that deception was deployed on a previous occasion; the matter has to be proved. The strongest case in support of that proposition is the reported decision of the AIT in JC(Part 9 HC395 - burden of proof) China [2007] UKAIT 00027. There, the AIT said in terms that Part 9 decisions involved the need to establish a precedent fact which was anterior to the proper exercise of the relevant duty or power (see paragraph 10 of the determination). Moreover, and to bring home the point that the Khawaja principles apply rather than ordinary Wednesbury principles, paragraph 13 of the determination makes clear that the standard of proof was the heightened balance of probabilities standard set out by the House of Lords in Khawaja.
25. Next, Mr Malik drew attention to the Secretary of State's own Immigration Directorate Instructions ("IDIs"), paragraph 11 of which has been conveniently set out in the judgment of Rix J in A v Secretary of State for the Home Department [2010] EWCA Civ 773. It provides:

"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..."

Mr Malik submits that paragraph 4.11 read in the round tends to show that Khawaja applies rather than straightforward Wednesbury.

26. Finally, Mr Malik refers to the decision of Mostyn J in Thebo v Entry Clearance Office Islamabad [2013] EWHC 146 (Admin). But my reading of that case is that the Secretary of State conceded that the issue of dishonesty went to jurisdiction and was therefore a precedent fact (see paragraphs 1, 47 - 49 of the judgment).
27. Mr Barnes submitted that the present case is much closer to ordinary Wednesbury than Khawaja, which, he says, represents an exceptional category of case. It is rare in the Immigration Act, still less in the Immigration Rules, that the exercise of a power is dependent upon the prior establishment of an objective fact. It is true that Khawaja's case is authority for the proposition that this consequence flows from the true construction of paragraph 9 of Schedule 2 to the Immigration Act 1971, but on a closer reading of the five opinions of the House of Lords in Khawaja it should be observed that this exceptional conclusion is the consequence of two important factors: first, the unusual wording of paragraph 9 of Schedule 2; and, secondly, and perhaps more importantly, the fact that illegal entrants are subject to executive detention, the law of habeas corpus applies and there are constitutional reasons for constraining, rather than broadening, the powers of the Secretary of State in this domain. Mr Barnes submits that what we are looking at here are general powers in relation to refusal of leave to enter or refusal of leave to remain, and although there may be serious consequences if a person is to be removed from the United Kingdom, nonetheless ordinary Wednesbury principles apply.
28. In my judgment, it is unnecessary to decide this important question in the context of this application. I incline to the view, without definitively deciding the point, that Mr Malik is correct. I confess that this was not my preliminary view since working in this area of the law for over 30 years now it has long been my understanding that the Khawaja type of approach was truly an exceptional one. However, what is indicative of the likely correctness of Mr Malik's approach is paragraph 24 of the judgment of Rix LJ in A, where paragraph 320(7B) is set out. There is absolutely no reason to construe that paragraph in any different way from paragraph 322(1A). The mandatory requirement that entry clearance be refused is dependent on certain facts being established. One of these facts is that the applicant is (although the present continuous of the verb 'to be' is applied) an illegal entrant. If Khawaja applies to paragraph 320(7B), as I believe it must do, it is difficult to see why the same sort of principles should not apply to the other sub-paragraphs in this rule, given that each depends on proof of a relevant characteristic rather than a value judgment or discretion.
29. However, although inclined to accept the correctness of Mr Malik's submission on this important point, I do not believe that it is necessary to reach a definitive view since I am able to decide this case, even on the basis that the claimant's view of the law is correct. I note that half a day was set aside for the hearing of this case. I make no criticism of anyone, but for a point of this importance I believe that considerable more time would have been required to give it more justice. Therefore, I am prepared to proceed on the basis of expressing a provisional view as to the law and assuming the law in Mr Malik's favour. If the law is going to be assumed in Mr Malik's favour for the purposes of this application, I should add that I do not accept that the standard of proof is a heightened one. Although Khawaja is authority for the proposition that it is, that case has been modified by subsequent Supreme Court authority. The modern view of the law is that an ordinary balance of probabilities criterion applies, and it is that test which I will apply to the instant case.
30. So the issue for me, approaching this on the precedent fact basis rather than a review of the Secretary of State's decision making process, is whether I am satisfied on all the evidence that the answer given at page 90 of the bundle to question D21 was dishonestly false. I have absolutely no doubt that it was false in objective terms since the evidence demonstrates beyond peradventure, for the reasons I have already given, that deception was used when seeking leave to enter on a previous occasion, namely in February 2006. I have already expressed my dissatisfaction with paragraph 20 of Milind Deshpande's witness statement but at the end of the day, given that I am approaching this basis not through the filter of the Secretary of State's perceptions but through my own, that matters little.
31. The difficulty with the claimant's case is paragraph 4 of his witness statement. If he had said words to the effect that he accepted that a deception had been used in February 2006, that he now remembers that he gave answers on that theme in August 2006, but owing to the lapse of time and all the applications he subsequently made he had simply forgotten what the position was when he came to answer question D21 in 2011, he would have placed me in very considerable difficulty. I suspect I would not have been satisfied to the relevant standard that a deception had been deployed. However, I regret to say he has made my task much easier by paragraph 4 of his witness statement, and I agree with Mr Barnes that it is not possible to reconcile that paragraph with a process of reasoning which, as it were, exonerates the claimant.
32. So I do come to the conclusion that there is sufficient evidence in this case to satisfy me on the balance of probabilities that question D21 was dishonestly answered in 2011 and for that reason, even applying the most favourable view of the law from the claimant's perspective, I am obliged to dismiss this application.
33. However, I believe that the Secretary of State should really have another look at this case. Of course it is up to the Secretary of State, it is not up to this court to give any direction, steer or guidance to her, but I am troubled by the history of this case notwithstanding what I have said about paragraph 4 of the claimant's witness statement. He was allowed to come here in August 2006 when the Entry Clearance Officer well knew that a deception had been practised in February 2006. No satisfactory reason has been given for that apart from the possible inference I have drawn not that the matter was overlooked but rather the Entry Clearance Officer felt that this claimant could be trusted. He then made a number of applications, all of which were granted, and it is possible, I put it no higher than that that, D21 was answered in exactly the same way as in 2011 and, finally, 5 years later, the Secretary of State wakes up to the point. The Secretary of State would, of course, be entitled to maintain her refusal and I have expressed my dissatisfaction with paragraph 20 of Milind Deshpande's witness statement. In all the circumstances I would invite a senior immigration officer or caseworker, if I may say so senior to Milind Deshpande, to have a closer look at this case in the light of what I have said and to reconsider the refusal decision. But for the reasons I have given this application for judicial review has to be dismissed.