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Conditional discharge is not a conviction. Duh.

Conditional discharge is not a conviction. Duh.

Omenma (Conditional discharge – not a conviction of an offence) [2014] UKUT 314 (IAC) is an interesting case for two reasons. Firstly, the Home Office accepted that the decision was wrong and withdrew it. Nevertheless, because the case had reached the Upper Tribunal, the withdrawal of decision did not automatically deprive the Upper Tribunal of jurisdiction, and it went on to determine the appeal anyway.

The actual reason for it being reported is that the appellant had answered “no” to the standard visa application form question about previous convictions. In fact she had pleaded guilty to shoplifting some years previously and been given a conditional discharge. Was she dishonest in her answer? The Home Office and the First-tier judge answered “yes” and her application and appeal had therefore failed so far.

A rather important point was overlooked, though. As the headnote says:

The effect of section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 is that a person who has received a conditional or absolute discharge does not make a false representation if the answer is “no” when asked if he has ever been “convicted” of an offence.

A further interesting issue is flagged up by the tribunal for decision on another day:

There is one other matter we wish to refer to. This is the meaning of the phrase “dishonesty”. It is clear that for the SSHD to conclude that the inaccurate completion of an application form amounts to a false statement there must be an element of dishonesty. However there is no definition of that term in the Immigration Rules or in statute which is not surprising given that it has been injected into the Rules by subsequent judicial interpretation and intervention. It is a well known concept in the realm of criminal law where it involves the classic “Ghosh” [R v Ghosh [1982] EWCA Crim 2] two part (objective and subjective) test. In such cases it must be proven to the criminal standard of proof. In the present context the burden of proof is the civil standard (balance of probabilities). We would simply point out that at some stage the Tribunal will have to address this issue and in particular whether the criminal law test is the correct formulation of the test, and if not, what the proper test is. The Judge in the present case did not grapple with this. We have not heard argument on the point, given the withdrawal of the decision, and we hence do no more than flag it as an issue of some importance for future consideration.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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