Deception and the Immigration Rules: Dishonesty is Necessary for a Document to be ‘False’

Agha v SSHD (False Document) [2017] UKUT 121 (IAC) (21 February 2017)

The officials of the Federal Investigation Agency are much maligned in the West. In my encounters with FIA officials, in their role as immigration officers in Pakistani ports, they have been rather honest and polite unlike their very rude British counterparts. I know for a fact that the Director-General of the FIA will usually go out of his way to help British citizens with legal problems in Pakistan. That is not to say that all FIA officials are honest. Many of them are corrupt. However, the extreme racism and outright incompetence in the British home office is such that it surpasses any corruption that one can observe in Pakistan’s immigration discourse. Rapacity reminiscent of the East India Company is reflected in extortionist increases in immigration and nationality application fees. In this case, the entry clearance officer (Abu Dhabi) refused Ali Ahmed Agha’s visit visa in September 2015. In the ECO’s aid, an Immigration Liaison Manager based in Islamabad, Mr Martin Banks accused FIA officials of taking bribes to “roll back” stamps (allegedly for as little as £3.50). He claimed that British officials reported 185 such cases to the FIA in 2016 alone. Agha had visited the UK in 2007, 2008 and 2009. He re-entered in 2010 as a student.

His leave was extended on that basis but was later curtailed because he ceased to attend his university course. Obliged to leave by 30 November 2014, he voluntarily left the UK and arrived in Pakistan on 29 November 2014. Agha did not overstay or breach the conditions of his leave. The parties agreed that he arrived in Pakistan on 29 November 2014 but the problem for Agha was that the FIA entry stamp on his passport was dated 29 October 2014. Subsequently, his application for entry clearance under Appendix V of the Immigration Rules was refused on 6 September 2015. The ECO alleged that he used a false document because a document verification report found that the FIA entry stamp was most probably false. Moreover, the refusal intimated that any future applications would result in automatic refusal for 10 years.

In response, Agha said that a visa agent had entered the information regarding his previous visits as recorded in his passport. Indeed, he did not notice the mistake until the refusal. The entry clearance manager reviewed the refusal on 23 November 2015 and upheld it. Mr Banks also said in his statement that the physical construction/design of Pakistani arrival stamps is such that an inadvertent stamping of a wrong date would be highly unlikely. In any event, a second security check by a senior FIA official ensures that date stamps remain error free.

Claim and Counterclaim

Agha instituted judicial review proceedings on five grounds. Firstly, especially in light of the fact that he gained nothing by deceptively having the details of his entry amended by a venal FIA official, he argued that the refusal was unlawful and irrational because of a failure to consider that his passport had been endorsed with the wrong Pakistani arrival stamp in error. He had not breached UK immigration law and changing his entry details served no purpose. Secondly, he complained that the decision was unlawful because it provided no reasons for the issue of attempted deception. The ECM’s mere assertions that the date stamp was obtained by fraud were not logical or sufficient reasoning if the full meaning of “false” was to be appreciated within the meaning of AA (Nigeria) [2010] EWCA Civ 773 (see here).

Thirdly, Agha argued that the home office policy on false documents requires “positive evidence” of dishonesty and it was possible for the wrong stamp to be a simple and innocent mistake caused by one dial on the stamp being accidentally moved without any dishonesty. Under the policy, which had not been applied, factual errors and dissatisfaction with applicants telling the truth are insufficient grounds to find dishonesty or deception. It was said that Mr Banks’s evidence was irrelevant because it was tendered after the decision and was not rationally able to support the validity of the decision-making in retrospect.

Fourthly, Agha raised procedural unfairness to challenge the refusal because he did not enjoy a right of appeal. The ECM review was challenged as being an insufficient remedy. Agha stressed that prior to a decision being made he needed to be provided an opportunity in an interview to furnish any innocent explanations he may have for what may be prima facie false documents. And fifthly, he also complained that the wrong standard of proof had been applied in his case. Using the criminal standard was suitable in light of the “draconian consequences of a fraud allegation.” Alternatively, assuming that the civil standard sufficed, a need existed as regards the production of robust evidence and no such evidence had been available for a proper and lawful conclusion that Agha had used a dishonest false document.

Against that, the home office argued that Agha’s passport was a false document as it contained incorrect information. The point was made that the definition of a false document entails incorrectness and does not involve an allegation of dishonesty.

The Upper Tribunal

The ECO’s decision of 6 September 2015, garnished by the ECM’s review of 23 November 2015, was quashed. Judge Lindsley ordered that the home office had to pay the costs of Agha’s application. She summarily assessed costs as amounting to £12,218 of which Counsel’s fees and court fees totalled £5,540. The UT also refused the home office permission to appeal to the Court of Appeal because the case did not raise any significant questions of law. Stalling on making the permission to appeal aaplication immediately and demanding a week from the UT “to review the position” did not serve the home office well. Judge Lindsley rebuked the dilatory tactics employed by the government and advised it to seek permission to appeal directly from the Court of Appeal. Overall she held that:

For a document to be a false document under the Immigration Rules there must have been an element of dishonesty in its creation and if this is not immediately obvious in a case of an inaccurate document then that element must be engaged with in any refusal.

Inevitably, the position contended for by the home office regarding Agha’s passport being a “false document” was out of character with the ratio of AA (Nigeria) where Rix, Longmore and Jacob LJJ held that the word “false” in “false representation” and “false document” in the Immigration Rules meant “dishonest” rather than “inaccurate”. In considering the text of paragraph 322(1A) of the rules (and inter alia paragraph 320(7A)), which has the same/identical wording as paragraph V3.6(a), Rix LJ provided a full exposition of the meaning of the word “false” and his Lordship went on to hold at para 66 et seq that the court preferred to associate the word with “dishonesty”. AA (Nigeria) also records an exchange between the Immigration Law Practitioners’ Association and the (then) Minister for Immigration Liam Byrne MP on the meaning of the word “false”. ILPA stressed, and was pleased to have clarification, that the reference to falsity in the Immigration Rules implies an element of deliberate falsehood and not a mere mistake. Liam Byrne MP responded to ILPA in the following terms:

The new rules are intended to cover people who tell lies – either on their own behalf or that of someone else – in an application … They are not intended to catch those who make innocent mistakes in their applications.

Nevertheless, the home office argued that in the event that the falsity in Agha’s passport exceeded a mere statement entailing factually wrong information, then the refusal was rational in light of the post-decision witness statement tendered by Mr Banks. It was equally argued that the home office was not obliged to incorporate this evidence in the refusal itself because this would impose “an over-onerous obligation” on the decision-maker. Despite an absence of concrete information pinpointing the acquisition of the false entry stamp, reliance was placed in the use of the word “false” in the refusal. For the home office, this purportedly indicated “some element of human agency” and the same point was made about the use of the term “non-genuine” in the ECM review.

Moreover, the refusal was said to contain sufficient material with regard to reasoning underpinning the decision to be considered lawful. No evidence of an innocent mistake by the Pakistani authorities was discernible. Contextually, there was no evidence to suggest that it was immaterial that the falsification was in any sense advantageous to Agha or material to the application according to the wording of the rules in paragraph V3.6 of Appendix V.

The legality of maintaining a system of making a decision without an interview was defended on the basis that the ECM review process provides an apposite remedy to an applicant because an ECM is empowered to change an existing decision on receipt of further evidence negating an ECO’s finding that a false document had been used. Interviewing every applicant refused a visa because of alleged deception would be extremely onerous. Equally, no precedent existed to support the argument that a decision-maker was not entitled to make a decision on the material available in a deception case. If the correct standard of proof had been applied and all the materials were properly considered, no scope existed to argue that the decision-maker acted unlawfully. The material before the decision-maker when the application was refused sufficed to discharge the evidential burden for showing deception. Similarly, the legal burden was also met in light of all the material before decision-maker.

Judge Lindsley reminded herself that at para 67 of AA (Nigeria) the court regarded it as “plain that a false document is one that tells a lie about itself” and that it is possible for someone “to make use of a false document … in total ignorance of its falsity and in perfect honesty.” The government clarified that forgery or alteration to provide false information constitute behaviour which must result in mandatory refusal. There was no doubt in Rix LJ’s mind that “false” in relation to both “representations” and “documents” was used in the same way and required dishonesty, albeit not necessarily by the applicant.

Applying AA (Nigeria), the UT found that for a document to be a false document under paragraph V3.6(a), an element of dishonesty is required in its creation. Where dishonesty is not immediately obvious in connection to an inaccurate document, then the refusal must engage with that finding. An incorrect date such as the one in Agha’s passport is not necessarily connected to dishonesty or alteration and it is possible for the wheel on the date stamp to become changed accidentally. Similarly, in contrast to the allegations of bribery in Pakistan, human error in the checking process can also arise.

The home office is aware that date stamps can accidentally rotate and get turned to the incorrect position on the dial. FIA stamps have been redesigned to avoid such an outcome. A second check in Pakistani ports for entry and exit makes mistakes less likely but it cannot entirely preclude human error. Judge Lindsley therefore held at para 37 that to properly refuse an application there needs “to be some consideration as to whether there was dishonest conduct by someone in relation to the wrong date endorsement.” No such engagement was observable in Agha’s case and the decision-maker interpreted incorrectness as falsity. The approach may have been linguistically acceptable but neither the initial decision nor the ECM review attempted to consider or explain dishonesty. Both decisions merely pointed to the incorrectness of the entry stamp without considering “whether the date was dishonestly incorrectly endorsed” which meant that Agha’s passport could not be properly described as a false document.

Judge Lindsley thought that the home office had failed even to give a gist as to why Agha had been dishonest or why the decision-maker believed that someone else had been dishonest. Belated reliance placed in the document verification report was neither here nor there because it only came to light after judicial review proceedings were instituted. The report, which did not form a part of the decision, said that Agha “had improperly obtained Pakistan entry endorsement in his passport in order to deceive UK immigration and hide his travel history”. The trouble with this text was that it failed to explain how tampering with the entry stamp would have hidden Agha’s travel history or deceived immigration control upon his return to the UK.

Overall, the impugned decision was unlawful as it failed to engage with the core requirement that Agha’s passport could only be a false document if an element of dishonesty was discernable in the creation of the inaccurate FIA entry stamp. On the other hand, it was not unlawful to not interview an applicant prior to making a decision and the UT was satisfied that an ECM review provided a proper remedy if conducted rationally in light of further evidence. Since Judge Lindsley found that the decision-maker failed engage with the full definition of a false document and consequently failed to give lawful reasons, there was no need to address issues of standards and burdens of proof. She nevertheless remarked at para 43 that “a criminal standard of proof would have been relevant in this case.”

Granting Agha’s judicial review application because of a lack of proper and sufficient reasoning in connection to whether he had submitted a falsely endorsed passport, the UT said that since “allegations of use of false documents are serious ones” decision-makers are obliged to give some reasons – or “the gist of the case” – for concluding that the document is indeed false. The approach could not be considered as unduly onerous because if deception is used paragraph 320(7B) and paragraph V3.7 both require mandatory refusal of future applications. Judge Lindsley said that the language of the refusal, which said that“future applications may be refused”, to be an “understatement” in that regard.

Comment

This is a positive decision but it will do very little to alleviate the terrible suffering inflicted by the home department and their equivalents in the tribunal. The “specialist” British system of appeals is very extravagant in the way it humiliates and abuses foreigners. British immigration officials are infamous for abuses of power. Similarly, home office officials in the tribunal routinely lie, cheat and always breach directions. Yet they want a badge of honour for professionalism irrespective of their dodgy behaviour and tactics. When all else fails they defend their incompetence and deceitfulness by using the outrageous platitude “we have 3.5 million cases”. In fact, they demand brownie points for this.

In judicial review cases where permission is miraculously granted on the papers, the lame government habitually breaches directions and even resorts to secretly making eleventh hour applications to postpone proceedings – under the guise of “an extension of time” – without serving an application notice on the applicant or their representative. Most extraordinary tactics are employed. When everything else fails they propose an unwarranted stay.

All this is worse than a third world country – arguably much worse than any FIA corruption – and the level of deceptiveness and rule breaking by British officials would surely delight the likes of Robert Clive and Warren Hastings. The sad part is that the judiciary habitually tolerates the indecent and opaque way in which the home office operates. Most of the time they are like two peas in a pod.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Agents, Appendix V, East India Company, Entry Clearance, False Statements and Misrepresentations, Immigration Rules, Judges, Judicial Review, Pakistan, Students, Visitors and tagged , , , , . Bookmark the permalink.

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