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Two tribunal cases on deception

Pinnochio by Grand Parc - Bordeaux, France
Pinnochio by Grand Parc – Bordeaux, France

In the case of Mumu (paragraph 320; Article 8; scope) Bangladesh [2012] UKUT 143 (IAC) Judges of the Upper Tribunal Storey and Lane have dismissed an appeal against a refusal under paragraph 320(7A) of the Immigration Rules. This reads as follows:

(7A)  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 had not been disclosed, in relation to the application.

The tribunal finds, perhaps rather unsurprisingly given the text of the rule, that the deception need not be that of the applicant and dismisses the case under the Immigration Rules. Note, though, that the tribunal explicitly records that dishonesty is required. An invalid document or a document that is marred by a mistake is not necessarily a dishonest one that would be caught by paragraph 320(7A). On the facts of this case the dishonesty was established: the false document in question deliberately misstated the appellant’s age so that she wrongly appeared eligible for a spouse visa at a time that the rules (unlawfully) required her to show she was aged 21.

The tribunal also addresses the suggestion that the appeal should be allowed on human rights grounds notwithstanding the deception.The argument that it was pointless to dismiss the appeal because a future application would succeed (paragraph 320(7C) would exempt the applicant from refusal under paragraph 320(7B)) was rejected, as was the inverse contention that the current appeal should now succeed because there was a risk of future refusal under paragraph 320(11).

The possibility that a case with different facts might succeed on human rights grounds was, however, explicitly left open:

Nothing in what we have just said should be taken to amount to a finding that it will never be disproportionate in Article 8 terms to uphold a decision under paragraph 320(7A).  Each case ultimately turns on its own facts.  There may well be cases where, despite the public policy issues inherent in paragraph 320(7A), it would nevertheless be disproportionate to refuse entry clearance.  The point we wish to make, however, is that the effect of 320(7B) and 7(C) is not such as to cause paragraph 320(7A) to be “read down” in a general way.

This case is notably a relatively rare example of the section 108 procedure being used, where an appellant’s representative is excluded from the hearing room while evidence of forgery is examined. One assumes the safeguards in OA (alleged forgery; section 108 procedure) Nigeria [2007] UKIAT 00096 were observed.

Close on the hooves of Mumu followed another case on paragraph 320 deception, that of  Singh (paragraph 320 (7A) – IS151A forms – proof) [2012] UKUT 00162 (IAC). In this case UTJ Lane, sitting alone this time, deals with one of the increasingly frequent cases of alleged non-disclosure on a Visa Application Form (VAF). The slightest mistake on a VAF seems to trigger these dishonesty refusals at certain entry clearance posts.

Mr Singh had previously overstayed in the United Kingdom. He had then attempted to make a Tier 1 application which had been rejected. He made a voluntary departure and as he did so he was served with an  IS151A form on the ‘flight-side’ of the airport when he was randomly encountered.

In making an application to return to the UK some time later, Mr Singh had answered ‘yes’ the question on the VAF about whether he had made a previous application in the United Kingdom and provided the date of application and the Home Office reference number with which he had been issued. He answered ‘no’ to the question about whether he had previously been refused a visa to the UK or any other country. This was a correct answer as he had been refused leave to remain, not entry clearance, colloquially known as a ‘visa’.

Despite this, First-tier Tribunal judge I F Taylor felt that there was some sort of ‘in the round’ deception by Mr Singh. The Upper Tribunal had no hesitation overturning this finding, describing the judge’s approach as ‘an excessively harsh test’.

This left the remaining question of whether Mr Singh’s negative answer on the VAF to the question about whether he had been ‘otherwise required to leave’ the UK or any other country. UTJ Lane found that the UK Border Agency had failed to establish their case, which was that Mr Singh had been served with a document that would actually require a person to leave the UK.

The appeal was therefore allowed.

Even if the relevant document, an IS151B, had been served, some might question whether such service at the departure gates really amounts to ‘requiring’ a person to leave. It suggests a certain amount of wishful thinking at the Border Agency and it also casts considerable doubt on removal statistics. I wonder how many supposedly ‘enforced’ removals in the immigration statistics are actually cases like that of Mr Singh, where the migrant is served with papers when they are in truth making a voluntary departure?

Free Movement
Free Movement The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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