Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 93
P1266/11	OPINION OF LADY CLARK OF CALTON in the petition of SJL (AP) Petitioner; For Judicial Review of decisions of the Secretary of State for the Home Department for a number of reasons on 19 October 2011 ­­­­­­­­­­­­­­­­­________________

Petitioner: Bovey QC, Byrne, Advocate; McGill & Co

Respondent: McIlvride, Advocate; Office of the Advocate General

1 June 2012

Summary

[1] The petition as amended, 10 or process, came before me for a hearing on 4 May 2011. During the course of the hearing, the petition was further amended by minute of amendment,17 of process.

[2] Senior counsel for the petitioner submitted a written outline, 16 of process. He referred to the written note of arguments which had been prepared by counsel previously instructed, 14 of process. Senior counsel did not formally adopt 14 of process or any part of it and did not refer to it in oral submission. The issues in dispute were narrowed by consent of counsel representing both parties. It was agreed that I should decide only the disputed issues raised before me in oral submissions and that the case should thereafter be put out by order for consideration of further procedure. Counsel accepted that the resolution of the issues which were disputed before me might result in some acceptable disposal. Counsel also accepted that there were matters in the petition which might require to be further addressed and that the petitioner would not be prevented from raising these matters at a later date.

The decision challenged
[3] The decision disputed before me was a decision letter dated 19 October 2011 (6/4 of process) which refused the petitioner a grant of leave to remain as a Tier One (General) Migrant under the points based system following an application by the petitioner dated 7 October 2011. The decision was not made personally by the respondent but by an official on her behalf.

Factual Background to the petition
[4] The petitioner is a citizen of India who arrived in the United Kingdom on 21 September 2005 as a student. He was granted leave to enter the UK until 31 January 2007. The petitioner obtained a masters degree from the University of Strathclyde. The petitioner then became eligible to apply for further leave to remain under the "Fresh Talent - Working in Scotland Scheme". He was granted leave to remain under that scheme from 16 January 2007 until 16 January 2009. Said scheme envisaged that during the two year period of leave to remain under the scheme, the persons granted leave might find an employer who wished to employ them under the work permit scheme or that they might establish a business or otherwise meet the criteria that would permit them to remain in the UK thereafter.

[5] It is not disputed that the petitioner was lawfully studying and thereafter working in the UK in terms of the Immigration Rules and grants of leave to remain referred to above. During this period, the respondent altered the mechanisms by which those seeking to remain in the UK would be granted leave to remain. A points based system was established. Reference is made to part 6A of the Immigration Rules and appendices A - H. In addition to the scheme set out in the Immigration Rules, the respondent published guidance on the operation of the rules. Said guidance is subject to change by the respondent and does not require parliamentary approval.

[6] It is a matter of dispute between the parties as to how complex the system is and how difficult it is to work out in a particular case whether a person is likely to be granted leave to remain under the Immigration Rules and the guidance. I was not in a position to resolve such a dispute. I am able to state that there is some complexity and the details are certainly not common knowledge.

[7] The petitioner's difficulties arose after the introduction of the points‑based scheme. He wished to remain in Scotland and wished to apply for further leave to remain. He considered some of the publicly available information in respect of the points‑based scheme. He recognised that he did not appear to meet the conditions in respect of previous earnings to gain enough points to qualify for leave to remain as a Tier One (General) Migrant. He decided that he required to obtain expert advice from a person knowledgeable in immigration law and practice who might know of a legal mechanism to obtain the extension of his leave to remain which the petitioner could meet.

[8] I consider that the petitioner was fully entitled to obtain such advice and taking into account the complexity of the Immigration Rules and practice, it was prudent of him to seek such advice in the circumstances.

[9] It is admitted in this case that the provision of immigration advice for profit is tightly controlled in the United Kingdom. To provide such advice it is necessary to be registered with a recognised professional body. For those who are not legally qualified there is a requirement to register with the Office of the Immigration Services Commissioner (OISC). In order to register it is necessary to meet qualifying conditions, to pass examinations, to be inspected and to comply with the equivalent of accounts rules. Persons who are registered are entitled to display the OISC logo on their publicity material as evidence that they are registered and therefore have a degree of competence and propriety. Providing immigration advice for gain without such registration is a criminal offence.

[10] The petitioner (according to his averments) sought advice from Harpreet Dhall of Immigration Experts (UK) Ltd. It is averred that this advisor displayed the OISC logo on his website. This is not known and not admitted on behalf of the respondent. It is admitted that Dhall is now known to be a fraudster and an immigration offender. He was jailed for six years in March 2011 for submitting fraudulent visa applications following an investigation by the UK Border Agencies (UKBA) West London Immigration Crime Team. Taking into account that there has been an investigation, I would expect it to be within the respondent's knowledge as to whether or not Dhall of Immigration Experts (UK) Ltd did display the OISC logo and held himself out to the public as registered by the OISC. This may be a matter of some importance.

[11] The petition avers that at the time he attended at the office of Dhall, the petitioner was not aware that Dhall was a fraudster and immigration offender. He avers that he explained his position to Dhall. He was told by Dhall that his problem was fixable, as Dhall had a very good relationship with UKBA and had a quota of applicants he could apply for which would be granted. He said this was a concession he had obtained as a qualified and registered advisor. Dhall suggested to the petitioner he should simply sign an application form for an extension of his visa, pay his fee and he would take care of the rest. Dhall prominently displayed his OISC "practice" certificate in his office. These averments are not known and not admitted by the respondent. I consider that these matters of fact may be important. They are not resolved in the decision letter 19 October 2011.

[12] There are also averments in article 16 of the petition about the administrative process. It is averred that a fee had been withdrawn from the petitioner's bank account but then refunded. It appears there may have been two applications for the petitioner submitted by Dhall. I consider that these matters should be within the knowledge of the respondent and may have some importance for reasons which I explain later.

[13] It is not disputed by the parties that Dhall in fact submitted a false payslip (or payslips) in addition to the petitioner's genuine payslip. This falsely vouched that the petitioner had earnings from a company called North Rig. It is averred that the petitioner was unaware of this and that he did not agree or consent to Dhall doing this. The petitioner's position is that he is entirely innocent of the deception committed by Dhall and that it was not anticipated or permitted by him in any way. It is not disputed that as a result of the submission of said fraudulent document(s) showing earning from North Rig, the petitioner's earnings were increased and, on the basis of these increased earnings, points were allocated which enabled the petitioner to meet the criteria when added to other points for which he genuinely qualified. As a result of the points allocated, the petitioner obtained an extension of his leave to remain as a Tier One (General) Migrant.

[14] I consider that the problem about the North Rig points obtained by the fraud and deception committed by Dhall is at the heart of the problems which the petitioner now experiences.

[15] The petitioner did well in his employment in the UK and his earnings were substantial. On 7 October 2011, the petitioner applied for a further extension of his leave to remain under the points based scheme as a Tier One (General) Migrant.

[16] On 19 October 2011 immigration officers attended at the petitioner's place of work and he was interviewed under caution. The only record of said interview which is a production is 7/1 of process. That document does not disclose answers by the petitioner to questions but is in a narrative form presumably drafted by an immigration officer in attendance. The narrative does not focus on the state of knowledge of the petitioner and whether or not he was involved or responsible for the fraud and deception of Dhall. The petitioner avers that he was unaware of the fraud and deception of Dhall until 19 October 2011.

[17] Counsel for the respondent stated to me that the respondent's position in this case is that the respondent does not impute any personal knowledge on the part of the applicant for the actings of Dhall. I consider that is a very important concession. My understanding is that this is not a case in which it is alleged by the respondent that the petitioner has played any part in the fraud and deception. The deception is entirely that of Dhall who has taken the matter forward illegally for his own personal benefit i.e. the conditional fee which he was paid. The respondent is understandably and justifiably concerned about the fraud and deception which Dhall committed in this case. That plainly impacted upon and undermined the respondent's decision making process in November 2008. In my opinion, however, it is not only the respondent who has been affected adversely in this case. The petitioner has also been duped and deprived of the expert advice and assistance which he reasonably sought from an advisor who has been registered under a scheme approved by OISC. He relied on the advice of Dhall about the operation of the scheme and the process of the administrative form filling. The petitioner in the absence of any genuine "expert" advice was also deprived of the opportunity to increase his earnings on a genuine basis or in other ways to improve his chances of qualifying under the scheme.

The reasons for the decision of 19 October 2011 (6/4 of process)
[18] There appeared to be some consensus that there were three identifiable reasons for the decision to refuse leave set out in the letter of 19 October 2011. These reasons were underpinned by reliance on three separate Immigration Rules namely Rule 322(1A); 322(2) and 245. I will deal with each of these reasons in the same order as in 6/4 of process.

The first reason
[19] 322(1A) of the Immigration Rules appears under the general heading 'Grounds on which Leave to Remain and Variation of Leave to Enter or Remain in the United Kingdom are to be refused.

IR 322 (1A) states:

"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 the applicant's knowledge), or material facts have not been disclosed, in relation to the application...."

[20] It was accepted by counsel for the respondent that in considering the current application i.e. the application of 7 October 2011, the only reason for relying on a breach of IR 322(1A) is the reason given in 6/4 of process that "In your application, you said that you have never used deception when seeking leave to remain or leave to enter the United Kingdom. (Question D22).

[21] I gave consideration to question D22 which as recorded in 6/17 of process states: "Has the applicant ever used deception when seeking leave to enter or leave to remain?" I interpret this question as a question, which is clearly directed in its terms, to the use of deception by the applicant. I am unable to interpret this question as capable of meaning "Has someone else such as an agent on behalf of the applicant ever used deception to the ignorance of the applicant". In my opinion counsel for the petitioner was correct in his submission that standing the state of knowledge of the applicant as at 7 October 2011 when he answered question D22, his answer was not false as it was the truth. It was the truth because the petitioner had no personal knowledge of the fraudulent actings of Dhall. That is the basis of the petitioner's case and the respondent does not challenge that. That is sufficient in my opinion to deal with the first reason. But in deference to the submission let me expand on that.

[22] The decision letter reached a different conclusion and gave these reasons. On behalf of the respondent it was stated:

"I'm satisfied that the statement was false because when you were questioned at St Leonards Police Station you admitted that your previous application for leave to remain in the United Kingdom as a Tier One (General) Migrant was completed by Harpreet Dhall of Immigration Experts who submitted false payslips from a company known as North Rig it demonstrated earnings of £11,880. This combined with earnings from Vodaphone of £6,852.86 and HSBC bank £11,172.46 showed a combined earning of £29,905.32. As a result of this 30 points were awarded under the previous earnings category which led to the approval of your initial Tier One (General) Migrant application.

As false representations had been made in relation to your application, it is refused under paragraph 322(1A) of the Immigration Rules."

[23] This analysis in my opinion is wholly inadequate for a number of reasons. It is not contended by the respondent that the petitioner prior to 19 October 2011 had any actual knowledge of the submission of false payslips from a company known as North Rig. The said interview relied on by the decision maker was not in the form of a question and answer directed to the state of knowledge of the petitioner and his personal culpability. It is not disputed that the petitioner accepted at interview that he had never worked at North Rig and that therefore the information given by Dhall was false. But that does not in my opinion justify a conclusion that the petitioner's application of 5 October 2011 (7/5 of process) he gave a false representation by answering D22 in the way which he did. In my opinion the submission of false payslips by Dhall, without the knowledge or agreement of the petitioner, does not mean that the petitioner should or could have answered question D22 in the affirmative as at the date the form was completed by the petitioner on 5 October 2011. It is impossible to understand how the petitioner could have answered said question in the affirmative bearing in mind the absence of any knowledge by the petitioner of his agent's deception. The mere fact that false payslips were submitted by Dhall is not in my opinion relevant if the petitioner in fact had no knowledge of the deception by Dhall.

[24] Counsel for the petitioner referred to AA (Nigeria) v Secretary of State for the Home Department (2010) EWCA CIB 773 in particular paragraph 65. The Court of Appeal highlighted that the meaning of the word "false" was capable of meaning both "dishonest" and "incorrect". They considered that there was a genuine ambiguity in paragraph 322(1A) of the Immigration Rules. They concluded that "false" meant "dishonest" and applied only to deliberate lies, rather than statements which were merely not in accordance with true facts; and that, accordingly to render a false representation a ground for mandatory refusal under paragraph 322(1A) dishonesty or deception was needed albeit not necessarily that of the claimant himself. Reference was also made to AJA v Advocate General for Scotland [2011] (SOH 1).

[25] In this case it is not disputed that there was a false payslip(s) submitted by Dhall in October 2008. Because of the wide terms of paragraph 322(1A) of the Immigration Rules, that would have been sufficient in my opinion to justify the refusal of the application in October 2008 even although the petitioner had no knowledge of the false payslips. In my opinion, however, the decision maker in considering the current application of 7 October 2011 is in a different position from the decision maker considering matters as at the date of the 2008 application. It is not enough for the decision maker to say that there was in fact false information given in 2008. The decision maker considered whether there is a false representation by the petitioner in relation to question D22. That is the basis on which the decision maker has reached the conclusion that there was a breach of the IR 322(1A).

[26] Counsel for the respondent accepted that the reasoning to which I have referred underpinning the first reason was not entirely adequate. It is that reasoning however which I am asked to review. For the reasons explained above I find the reasoning to be ill-founded as a matter of law.

[27] Counsel for the respondent tried to persuade me that there were other facts and circumstances, not referred to by the decision maker, which underpin the conclusion which the decision maker had reached. There was some discussion about this but I found that discussion soon strayed into disputed areas of fact which are not for me to resolve. For example, it appears in this case that there may be two applications. The petitioner avers that he signed a blank form. Counsel for the respondent appears to have interpreted that as signing a blank form which had a number of declarations about the truth of information in the form. I am not in a position to form a view about that. There are averments that there were two applications and two forms. It is not clear whether the form signed by the petitioner was a production available to me. The petitioner avers that the form which is lodged in part (7/3 of process) contained a false signature. That according to the petitioner is a second form falsely signed by Dhall who forged the petitioner's signature. I am not in a position to determine what was signed by the petitioner. I certainly cannot draw the inference that he knowingly signed a form declaring that all the information in the form was true or words to that effect. I bear in mind that this is a petitioner who did not receive proper advice from Dhall about the merits, the procedures to be followed, the importance of the declarations to be signed, and did not receive the completed application form to check. These are all steps in a process which one might reasonably expect an expert advisor to facilitate. The petitioner (according to his averments) was not only misinformed by Dhall about the merits but was given no correct assistance or guidance about the completion of the process of application.

[28] Counsel for the respondent also prayed in aid the knowledge of the petitioner that he did not have enough points at the time of the earlier application. I am not persuaded that justifies the inference relied on by counsel, bearing in mind that the petitioner was seeking expert information and advice about how to bring himself within the Immigration Rules.

[29] Counsel for the respondent referred to King v East Ayrshire Council 1998 SC182. I am not persuaded however that this case assists the respondent in the circumstances of this case. In my opinion the reasoning of the decision maker in this case cannot support the conclusions reached for the reasons I have given. I do not consider that it is open to me to adopt other reasoning to support the conclusion particularly in circumstances where I do not find the reasoning compelling and there are disputed facts which have not been resolved.

The second reason
[30] IR 322(2) of the Immigration Rules appears under the general heading "Ground on which Leave to Remain and Variation of Leave to Enter of Remain in the United Kingdom should normally be refused".

IR 322(2) states:

"The making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave."

[31] I was invited by counsel for the petitioner to compare and contrast the wording of IR 322(1A) with IR 322(2). Plainly the paragraphs are worded differently. In particular IR 322(2) does not include the very wide words which are found in IR 322(1A) relating to the submission of false documents and information. Also absent are the words "whether or not material to the application, and whether or not the applicant's knowledge". I consider that IR 322(2) is directed to the making of false representations by or to the knowledge of the petitioner.

[32] The decision maker stated the second reason in these terms: "As false representations were not disclosed in relation to your previous application, it is refused under paragraph 322(2) of the Immigration Rules". In my opinion the decision maker had no evidence that the petitioner made any false representation in relation to the previous application. I consider that the decision maker has assumed that IR 322(2) bears the extended meaning which IR 322(1A) has been given. I consider that the decision maker has erred in the interpretation of said rule in considering the factual information available to the decision maker.

The third reason
[33] Counsel for the petitioner accepted that his submissions differed from the petition and he did not insist on paragraphs 23 - 25 of the petition. There was some discussion about amendment of the petition. Having given time to counsel for the respondent to consider the position, amendment was allowed. I considered that counsel for the petitioner should be allowed to develop his submission.

[34] Rule 245 is supplemented by guidance and the relevant part is to be found in appendix A, note 12, table 3 (7 of process). This states:

"Qualifications and/or earnings will not be taken into account if the applicant was in breach of the UK's Immigration Laws at the time those qualifications were studied for or those earnings were made".

[35] I understood that there was no dispute in relation to qualifications. The dispute related to earnings. My understanding is that in relation to the current application, the petitioner (but for difficulties in relation to the earlier application) has earnings which would qualify for points, which added to other points for which he is eligible, would qualify him for a grant in respect of the current application. In respect of the current application, the decision maker refused to take into account the current earnings of the petitioner because he was "..in breach of Immigration Laws because you obtained leave to remain on a previous variation by deception".

[36] Counsel for the petitioner submitted that at the time of the current application, the petitioner had the appropriate status of leave to remain. There was no deception in respect of the earnings which he had in respect of the current application. He submitted that the reasons given by the decision maker were inadequate in that they failed to properly address the correct legal test in relation to the current application.

[37] Counsel for the respondent submitted that the submissions on behalf of the petitioner proceeded upon a misreading of what is said in the decision letter. He submitted that the issue for determination by the decision maker may be stated in this way: - "Was the petitioner in breach or not of the Immigration Rules whilst he was earning his salary in relation to the current application."

[38] Counsel referred me to the Immigration Act 1971 section 1(4) and section 3(2) and the rules referred to in No 7 of process in particular rule 245(A). In essence he submitted that a legal entitlement to remain depends on the number of points. As a matter of fact the petitioner in this case did not qualify for sufficient points at the time his application was granted in 2008. Counsel submitted that the work by the petitioner post 2008 can only be characterised as in breach of the Immigration Laws because he obtained leave by deception in 2008 as in fact he did not have sufficient points. The presence of the petitioner in the UK since 2008 was based on his grant of leave to remain which was only secured by deception. Accordingly the petitioner did not satisfy IR 245(A). The decision maker was therefore correct in concluding in relation to appendix A note 12 that as the petitioner was in breach of the UK's Immigration Laws, his earnings should not be taken into account.

[39] I observe that IR 245 (A) and appendix A table 3, note 12 is not framed in the wide terms set out in Immigration Rule 322(A). At the time of the application on 7 October 2011, the petitioner had leave to remain which had not been revoked or withdrawn. That did not occur until 19 October 2011. The earnings on which the petitioner sought to rely in respect of the current application related to a period prior to 19 October 2011 when he did have leave to remain. It was not disputed that revocation does not have retrospective effect. In my opinion, the decision maker in the current application appears to have given it retrospective effect. I consider therefore that the decision maker has wrongly interpretated the rule relied on me.

Further submissions
[40] Counsel for the petitioner also prayed in aid general points about the standard and burden of proof in relation to dishonesty. He made these general points in relation to all three reasons founded upon by the respondent. He referred to J C (Part 9 HC 395 - Burden Of Proof) China (2007) UK AIT 0027. This case deals generally with the reasons why the burden of proof is on the decision maker in respect of alleged wrongdoings. In relation to the standard of proof, the petitioner referred to paragraph 13 of the determination and reasons which states:

"13. So far as the standard of proof is concerned, we consider that what the Immigration Appeal Tribunal said in Olufosoye [1992] Imm AR 141 still holds good: "insofar as the justification consists of deception or other criminal conduct the standard of proof will be at the higher end of the spectrum of balance of probability" (see also R v IAT ex parte Nadeem Tahir [1989] Imm AR 98 CA). This approach reflects that of the House of Lords in R v Secretary of State for the Home Department ex p.Khawaja [1984] AC 74 and is consistent with subsequent case law (see e.g. Bishop [2002] UKIAT 05532). In R (AN & Anor) v Secretary of State for the Home Department [2005] EWCA Civ 1605 Richards LJ stated at [62]: "Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proven, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities"."

Counsel for the petitioner also prayed in aid A J, the Secretary of State for the Home Department (2011) CSIH 49, in particular paragraph 7.

[41] I do accept that the decision maker in relation to the current application must in reaching a decision properly construe the rules on which the decision maker founds and that the burden of identifying facts and circumstances as a factual basis to underpin the decision also rests upon the decision maker. I did not understand that there was any significant dispute about the law relating to burden and standard of proof.

[42] For the reason I have given, I am persuaded that the decision is ill founded in law and judicial review should be granted. I appoint the case to the By Order Roll to consider further procedure and to allow parties to address me on the form of the interlocutor.