Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: IA122752015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On June 13, 2016
On June 14, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MR ARSHAD MAHMOOD
(NO ANONYMITY DIRECTION)

Respondent

Representation:
For the Appellant: Mr McVeety (Home Office Presenting Officer)
For the Respondent: Mr Khan (Legal Representative)

DECISION AND REASONS

1. The respondent in these proceedings was the appellant before the First-tier Tribunal. From hereon I have referred to the parties as they were in the First-tier Tribunal so that for example reference to the respondent is a reference to the Secretary of State for the Home Department.

2. The Appellant is a citizen of Pakistan. On September 14, 2012 the appellant entered the United Kingdom with entry clearance as a spouse. On October 16, 2014 he applied for indefinite leave to remain as a spouse. The respondent refused his application on March 12, 2015 and took a decision to remove him by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006.

3. The appellant appealed that decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on March 26, 2015.

4. The appeal came before Judge of the First-tier Tribunal Chambers (hereinafter referred to as the Judge) on October 20, 2015 and in a decision promulgated on October 21, 2016 he allowed the appellant's appeal against refusal under paragraph 322(1A) HC 395 but refused the substantive application under paragraph 287 HC 395. In essence, he found that the appellant had not been aware a fraudulent document had been used with his application.

5. The respondent lodged grounds of appeal on October 28, 2015 submitting the Judge had erred in the way he had considered paragraph 322(1A) HC 395. She argued that the Judge had misinterpreted the Court's conclusions in AA (Nigeria) v SSHD 2010 EWCA Civ 773 and had failed to have regard to the decision of in JK(India) v SSHD 2013 EWCA Civ 1080 which made it clear that paragraph 322(1A) was deliberately couched in terms intended to prevent the making of dishonest applications with the result that applications were to be refused even though the dishonesty employed may not be that of the applicant himself or herself.

6. Permission to appeal was granted by Judge of the First-tier Tribunal Holmes on April 7, 2016 who found it was arguable the Judge's approach to paragraph 322(1A) was flawed.

7. The matter came before me on the above date and I heard submissions from both representatives.

8. No anonymity direction has been made.

SUBMISSIONS

9. Mr McVeety relied on the grounds of appeal and referred me to paragraph [67] of AA. This distinguished a document from a misrepresentation. AA had been concerned with a misrepresentation and the issue was whether it had to be shown the misrepresentation was dishonest or merely a mistake. The Court of Appeal in AA made clear that where a fraudulent document was submitted, even in all innocence, for the purpose of obtaining entry clearance, or leave to enter or to remain the response of a requirement of mandatory refusal is entirely understandable in such a situation. The mere fact that a dishonest document has been used for such an important application is understandably a sufficient reason for a mandatory refusal. That is why the rule expressly emphasises that it applies "whether or not to the applicant's knowledge". He invited me to allow the appeal and confirm the application was also dismissed under paragraph 322(1A) HC 395.

10. Mr Khan argued the Judge had the bundle of evidence including two statements and he had the benefit of hearing the appellant give evidence. The conclusion he reached was open to him. Whilst it was accepted the document was fraudulent he argued the Judge accepted the appellant was as much a victim.

DISCUSSION AND FINDINGS

11. The Judge dealt with an application for indefinite leave to remain. The refusal letter found a fraudulent certificate had been used and this certificate had been submitted for a mandatory requirement under the Rules.

12. There was no dispute the document was fraudulent but applying the guidance in AA the Judge concluded the respondent had not demonstrated the appellant had acted dishonestly.

13. I am satisfied the Judge's approach was flawed. The cases of AA (Nigeria) v SSHD [2010] EWCA Civ 773 and JK (India) v SSHD [2013] EWCA Civ 1080 make clear the approach to be taken when fraudulent documents were submitted.

14. It cannot be said that mens rea is always required on the part of the applicant in order for the Secretary of State to invoke 322(1A).

15. Firstly, the very wording of Paragraph 322(1A) is inconsistent with such a construction. A representation and/or a document may be false, "whether or not to the applicant's knowledge". As Rix LJ observed in AA at paragraph [68] where a dishonest representation is promoted by another party, then the Rule requires mandatory refusal "irrespective of the personal innocence of the applicant herself". Rix LJ went on to say ""false" requires dishonesty - although not necessarily that of the applicant himself". At paragraph [76], Rix LJ also stated that: "Dishonesty or deception is needed, albeit not necessarily that of the applicant himself, to render a 'false representation' a ground for mandatory refusal."

16. Secondly, the blanket requirement of mens rea on the part of the applicant fails to make the necessary distinction between false documents and false statements for the reasons identified by Rix LJ in AA at paragraphs [67 and 68]. I accept that Rix LJ's remarks regarding documents are obiter but his reasoning is persuasive and has been accepted by Tomlinson LJ in JK.

17. Thirdly, the fact that the theme of deception runs through the relevant IDI and entry clearance guidance does no more than serve to identify the importance of dishonesty. Indeed, the IDI states that "an application should be refused even where the applicant does not know (or claims not to know) it is a false document". As Rix LJ explained, the necessary ingredient of dishonesty lies in the false document itself.

18. I acknowledge that the consequence of this approach may be draconian. However, the use of false documents is a serious matter even if the falsity is unknown to the applicant. The use of false documents can be distinguished from making perfectly honest but inaccurate statements.

19. The Judge erred in finding that the respondent had to show the appellant knew the document was fraudulent. When refusing the application under the Immigration Rules, the respondent was entitled to be satisfied that the appellant had used deception in his application. This must be considered in the context of deception as set out in the Immigration Rules and the IDI, and as explained in AA. As discussed above this includes submitting a false or dishonest document, whether or not to the applicant's knowledge. In this case the appellant submitted a false document in relation to which it is accepted there had been dishonesty by another.

20. It follows that contrary to Mr Khan's submissions, there has been dishonesty in this application - a dishonest document was submitted, whether or not to this appellant's knowledge. It matters not that the party who promoted the document is not a parent, sponsor, agent or representative of the appellant's. What matters is whether or not a false or dishonest document has been submitted.

21. The Judge therefore erred in his approach and I set aside the decision he made under paragraph 322(1A) HC 395.

DECISION

22. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision. I remake the decision and I dismiss the appeal on all grounds.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I reverse the fee award made as I have dismissed the appeal.

Signed Dated:

Judge of the First-tier Tribunal Alis