Case Comment: FW v SSHD [2011] EWCA Civ 264

Lies and false statements in immigration applications are a common problem. Many a “clever” foreigner, often meritorious enough to qualify for the coveted Post Study Work visa, has fallen foul of the deception rules. It really isn’t a great idea to lie to the UKBA, or any other agency, given that a much larger extraterritorial European framework exists to coordinate EU Member States’ total border forces (whose total strength is estimated at 400,000).

On appeal from the Upper Tribunal, the decision in FW’s case was handed down by the Court of Appeal last week on 14 March 2011. Criticising FW’s representatives’ grounds of appeal as “excessively long” and “more like a skeleton argument” rather than “a concise identification”, Moore-Bick LJ (at [12] of the judgment) summarised the grounds and set them out as:

  • That the Secretary of State refused the application solely on the grounds of a failure to disclose a material fact and that the Upper Tribunal and the AIT were therefore wrong to dismiss the appeal on the grounds that the appellant had made a false representation, which was not a matter in issue before them
  • That the Upper Tribunal was wrong to hold that there was no difference in this case between a false representation and the non-disclosure of a material fact
  • That the appellant’s conviction was not material to his application
  • And that the Upper Tribunal was wrong not to set aside as perverse the FTT (IAC)’s finding that the appellant had chosen not to answer Question E1 truthfully in the hope of improving the chances of his application’s being successful

Earlier posts on the deception theme on this blog are available here (AA (Nigeria) v SSHD) (now Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773) and here (FW Kenya). As in both tiers of the IAC, FW’s appeal was dismissed by the Court of Appeal (Moore-Bick, Arden and Ward LJJ).

In the instant case the Court identified that it had held in AA’s case that “that a representation is “false” for the purposes of paragraph 322(1A) of the Immigration Rules only if it has been made dishonestly” (see at [13]), Moreover, the Court explained that permission to appeal was granted in connection to the contents of paragraph 11 of the Upper Tribunal’s determination.

Dismissing the appeal the Court explained that FW’s case fell within paragraph 322(1A) of the immigration rules because the appellant had “knowingly made a false statement” and therefore “the Secretary of State was right to refuse his application for leave to remain” (at [23]).

The Court (at [21]) also explained that:

There is nothing in the tribunal’s reasoning to suggest that it was led too easily to its conclusion that he had acted dishonestly, nor can it be said that there was insufficient evidence to support its decision. The recent date of the conviction spoke for itself: on the face of it there was no reason why any reasonable person should have thought it was spent.

Moreover, by consistently adopting the Upper Tribunal’s stance, the Court also explained that in the instant case non-disclosure and false representations amounted to one and the same thing because the answer “no” to question E1 on the PSW visa form was a clearly calculated move of which FW was aware. The words in the parenthesis (whether or not material to the application, and whether or not to the applicant’s knowledge) in rule 322(1A) were not really considered relevant as the Court unanimously agreed that there was very little doubt that the applicant had acted with “dishonesty” and deserved to have his application refused.

As the Court explained, the lesson for the appellant’s representatives was that they focused exclusively on the materiality of the false representation whereas it was their task to explain, given the false representation, why the appeal should be allowed to succeed on the rules (or otherwise).

In the AA (Nigeria) case, the appellant’s counsel had convinced the Court that the appellant had not acted dishonestly. Therefore, it was only proper that his case was re-determined by the Tribunal. No such luck for FW it seems.

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, Court of Appeal, European Union, False Statements, Frontex, Immigration Rules, Kenya, Nigeria, Post Study Work and tagged , , , , , . Bookmark the permalink.

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