Following on from Chanda the other week, the Court of Appeal in Li [2018] EWCA Civ 2411 returns to the issue of false documents, this time in a judicial review case for an appellant attempting to make a Tier 1 application.

In a previous application the appellant had submitted what appeared to be a false birth certificate, obtained she claimed by her agent. That application was refused.

This judicial review was of a subsequent decision to refuse a Tier 1 visa on the basis of a failure to meet the rules and deception in the previous application under rule 320(7B)(d):

Grounds on which entry clearance or leave to enter the United Kingdom is to be refused…

(7B) where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach) by:

…

(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not)

Permission for the challenge was refused by the Upper Tribunal, finding:

• there was a rational basis for concluding the document was false
• that it did not matter if the dishonesty was of the appellant or a third party
• in any event the application was bound to fail because of a lack of evidence

It was accepted by the appellant before the Court of Appeal that underlying application was bound to fail for a lack of specified documents. This was an attempt to ensure she would not be banned from the UK for ten years.

Both parties agreed that the tribunal was wrong to conclude that deception in paragraph 320(7B)(d) included dishonesty of third parties. The court confirmed this was the position, applying AA (Nigeria) [2010] EWCA Civ 773:

The wording of paragraph 6 and 320(7B)(d) indicates that appellant must have been aware that the documents were false for paragraph 320(7B)(d) to apply.

The Court of Appeal went on to consider the correct test to be used in judicial review cases of this type: that to be unlawful, a finding of deception must be unreasonable in a Wednesbury sense.

Unfortunately for the appellant, the Senior President of Tribunals found that the decision was open to the Home Office and dismissed the appeal.

For good measure the appellant’s second ground of appeal, that the deception must be material to the current application for it to result in a refusal, was also dismissed:

paragraph 320(7B) is framed by what an applicant has done “previously” and does not say that this has to be in any way material to the current application. This is clearly intended to operate as a deterrent against attempts improperly to manipulate or circumvent the immigration control regime regardless of whether or not they have a material bearing on later applications.

Both Chanda and Li demonstrate the severe consequences of submitting false documents for both the application in question and future applications. Clients should be warned accordingly.