Case Comment: FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC)

Under the common law lies, silences, omissions, misleading statements and false representations all give rise to liability in criminal and civil matters. Immigration matters tend to contain a mixture of both civil and criminal elements when ascertaining a person’s worthiness to be given leave to remain in the United Kingdom. Immigration Rule 322(1A) provides that “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”, the application to remain in the UK is to be refused. The present case under discussion exemplifies the literal application of this rule by the Home Secretary.

The UK’s Points Based System (PBS) of immigration control has several shared characteristics between applications. One central feature is that an applicant must have existing leave to remain when a PBS application is submitted for consideration to the United Kingdom Border Agency (UKBA). Another such feature is contained in the maintenance requirements which applications under all tiers share – an in country requirement of £800 as maintenance and £2800 when the application is made abroad.

More specifically and quite crucially any application to the UKBA will invite applicants to provide certain information about themselves (information which other agencies may potentially furnish the UKBA with) and invariably the personal history section of any application will be prefaced with the following warning:

“Please answer every question in this section. It is an offence under Section 26(1)(c) of the Immigration Act 1971 to make a statement or representation which is known to be false or is not believed to be true. Information given will be checked with other agencies.”

The simple facts of the present (FW’s) case are that the applicant (who the court views as the “appellant”, i.e. an applicant appealing an immigration decision) was a national of Kenya who, subsequent to successful completion of his studies, had sought to renew his existing leave to remain in the United Kingdom by way of a Tier 1 (Post Study Work) Migrant application. The first question following the warning set out above sought to elicit information regarding the applicant’s previous criminal conviction and civil judgments. Accordingly, the question asked:

“Do you have any criminal convictions in the UK or any other country (including traffic offences) or any civil judgments made against you?”

Broadly speaking the law in the UK is such that subject to time a criminal conviction for which a sentence of less than two and a half years was awarded will become “spent” under legislation designed to rehabilitate offenders (The Rehabilitation of Offenders Act 1974 – ROA). The applicant, who was the appellant in the Upper Tribunal, had a conviction in 2007 for driving with excess alcohol for which he was fined and disqualified from driving for 12 months. Although the applicant’s crime was not sufficiently grave to attract the provisions of the ROA it was nevertheless serious enough for Mr Ockleton (Vice President of the Tribunal) to dismiss the appeal before him because of the applicant’s non-disclosure of this conviction on his application form.

After having lost his case in the first instance in the First Tier Tribunal (Immigration and Asylum Chamber) the applicant’s counsel’s grounds for reconsideration of the case in the Upper Tribunal were, first, that the refusal had been not on the basis of false representations but on the basis of failure to disclose a material fact; secondly, that, in accordance with Immigration Directorates Instructions, there should have been refusal only if the non-disclosure was material and that the refusal was therefore not in accordance with the law; thirdly, that there was no evidence that the applicant would not have been granted leave if he had disclosed his conviction; fourthly, in making his decision under Article 8 of the European Convention, the Immigration Judge failed to consider that the applicant’s private life included the pursuit of a career or business.

Rejecting the above submissions the court clarified that any argument that the non-disclosure had been due to a false representation which had been made “innocently” was unacceptable because paragraph 322(1A) of the immigration rules had the effect of empowering the Home Secretary to deny an application where false representations had been made.

At paragraph 15 the court explained its determination in the following way:

“The position is that the Appellant had a period of leave in this country, during which he committed a criminal offence, which he subsequently denied in an application for further leave. Other than the fact that he has been in this country for a few years, and that Mr Nasim describes him as “one of the best people”, nothing has been said on the basis of which it could be concluded that he has a right to remain here despite not complying with the immigration rules. In our view, he simply does not. The Article 8 claim is entirely insubstantial and, in the circumstances, the Immigration Judge dealt with it entirely appropriately.”

Accordingly applicants should heed this warning. They should not think that the courts will favour any form of misrepresentation and falsity in immigration matters. This case from the Upper Tribunal (Immigration and Asylum Chamber) shows us by example why honesty is the best policy when making an application to the UKBA.

If you have any adverse history or offence which might jeopardise your application to the UKBA then get someone to provide you with effective advice on how to plan your application appropriately.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Cases, East African Asians, False Statements, Immigration Rules, Kenya, Tribunals and tagged , , , , , . Bookmark the permalink.

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