Foreword
The introduction of new mandatory grounds for refusal has been a controversial area in Immigration Law, particularly because of the harsh construction which the Courts have previously applied. The increasing length, detail and complexity of immigration application forms, has led inevitably to an increase in the number of applications rejected on the basis of inaccurate information provided. Employers and skilled migrants should take exceptional care to avoid these pitfalls, and the protracted litigation which can follow.
If upheld, a decision under Paragraph 320 will preclude a grant of Leave to Enter Remain under the Immigration Rules. The applicant will be caught by the Paragraph 320 (7B) of the Immigration Rules, and barred from re -entering the United Kingdom for ten years subject to certain exceptions set out at Paragraph 320 (7C) to join a family members.
Paragraph 320 (7B) will be engaged where an Applicant is found to use Deception in Application for entry clearance, leave to enter or remain (whether successful or not).
The definition of Deception is provided at paragraph 6 of the Immigration Rules:
"Deception" means making false representations or submitting false documents (whether or not material to the application) or failing to disclose material facts
The Court of Appeal's decision in A v the Secretary of State for the Home Department [2010] EWCA Civ 7331 is essential reading for all Immigration Practitioners who have find that simple errors on application forms are leading to mandatory refusal under paragraph 322 (1A).
False Representations
What is the definition of a false Representation? The first guidance came from the Upper Tribunal in FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC) . It found that knowledge of falsity was irrelevant to applying the paragraph 320.
It does not seem right to us to say 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 to be the effect of the words in parenthesis in paragraph 322 (1A) itself.
Paragraph 322 (1A) – under the heading 'Mandatory Grounds for refusal' reads as follows; Leave to Remain in the United Kingdom (essentially identical provisions apply to entry clearance) "is 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."
However in 'A', the Court of Appeal reversed the Upper Tribunal's interpretation of the paragraph and called a halt to the false logic which led to honest errors to be treated as acts of deception for the purposes of paragraph 320.
Back to Basics
The Court of Appeal's starting point for construction of the paragraph was the Concise Oxford Dictionary's definitions of the word "false". There were two. The first was "wrong" or "incorrect"; the second "lying" or "deceitful" etc. Examples of the second meaning can be found in terms from Civil law and Criminal law: Civil law prefers the expression "misrepresentation" to "false representation" and Criminal Law "false accounting", "false allegation", "false statements on oath" each require a men rea element. Bare inaccuracy will not suffice. The Court concluded there was therefore an open choice of two meanings to be attributed to the word "false".
The Court observed that the rules were an expression of Executive Policy. Where there was genuine ambiguity, it would be legitimate to consider what the Executive had said publicly about its rules. Lord Bassam confirmed in the Lords Debate of the 17th March 2008, when the rule was in question before parliament, that a false document referred to one that has been forged, or altered to give false information. ILPA then wrote to minister for the Home Department Liam Byrne for clarification of whether this meaning extended to representations. The minister replied that the rules were intended to cover "people who tell lies" either on their own behalf, or that of someone else and were not intended to catch those that made "innocent mistakes in their applications".
The Court also searched for explanation in the Immigration Rules themselves. They noted that engagement of paragraph 320 (7B) (d) turns on Deception, and therefore locks into the sanction which follow making a false Representation under paragraph 322(1A), a finding that the Applicant has exercised deceit. Lord Justice Rix considered that it would be "grotesque" to attribute to the Secretary of State a definition of "Deception" which did not require dishonesty. Once the connection between paragraph 322(1A) and 320 7B (d) is made, he viewed it as impossible to conclude that "false" in the expression false representation, has the morally neutral meaning of "incorrect".
The Court also considered the phrase "whether or not to the holder's knowledge", which had previously led the Upper Tribunal to conclude that dishonesty was not necessary element of a false representation. It found that paragraph 322 (1A) was compatible with their interpretation. By way of example, they suggested that submission of a false document would not require deception on the part of the person who presented it. The Applicant themselves may be unaware of its falsity, and a third party such as an agent, may be responsible; nevertheless, the Applicant will fall foul of paragraph 322 (1A).
Conclusion
The Court of Appeal drew on a plain reading of the rules, Executive Policy and the English Dictionary to lead them to conclude that dishonesty, on the part of the applicant or a third party, must be established before paragraph 322 (1A) can be relied on for the purposes of a False Representation.
Footnote
1. Also referred to as AA (Nigeria)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
