Tribunal finds non-disclosure and false representation can be the same thing

In FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC) - one of a batch of recently reported determinations issued by the new Asylum and Immigration Chamber of the Upper Tribunal – the Tribunal has expressed an uncompromising view about what constitutes both a false representation and a material non-disclosure.

When the Appellant had applied for further leave to remain he had been required to complete an application form.  At section E of the form there was the following question:

"E1. Has the Applicant had any criminal convictions in the United Kingdom or any other country (including traffic offences) or any civil judgements made against them?"

The form includes a note as follows:

"Note 1: convictions spent under the Rehabilitation of Offenders Act 1974 need not be disclosed. More information about this Act is given towards the end of this section".

The Appellant answered no to the question at E1 of the form – despite having been convicted of drink driving in 2007. He had been fined and disqualified from driving for a year.

The Secretary of State for the Home Department refused the Appellant's application. He said that the Appellant had said in his application that he had never been convicted of a criminal offence. He said:

"I am satisfied that this fact was material to the application because it is a mandatory field on the application form for which you signed a declaration stating that the information given by yourself was true. As material facts were not disclosed in relation to your application, it is refused under paragraph 322 (1A) of the Immigration Rules."

In fact the Secretary of State didn't need to say that the non-disclosure had been material – paragraph (or Rule) 322 (1A) – which is one of the Immigration Rules' "general grounds for refusal" requires him or her to refuse an application:

"where false representations have been made or false documents have been submitted (whether or not material to the application and whether or not to the applicant's knowledge) or material factors have not been disclosed in relation to the application" .

False representations therefore will suffice for refusal, and refusal is mandatory where a false representation is made even if the maker of the representation has no idea that what he or she has said is not true.

The Tribunal makes its view clear. It says:

"The non-disclosure was a false representation, because it was an answer to a direct question. The answer "no" was both false and constituted a failure to disclose what would have been disclosed if the question had been answered truthfully." 

They also rejected the Appellant's argument that not disclosing the offence had not been material because if he had disclosed it the application wouldn't have been rejected on that basis, saying:

"If it was not material, it is difficult to see why the question should have been asked."

The Tribunal upheld the Immigration Judge's decision dismissing the Appellant's appeal. 

What the Tribunal doesn't consider – and it may well have been irrelevant to their role in deciding whether the Immigration Judge who dismissed the Appellant's appeal had or had not materially erred in law - is the effect on the Appellant of this General ground for refusal and their decision to uphold it.

The consequence is that any application the Appellant might make in the future will be refused until ten years have elapsed, because he ticked the wrong box on an application form. This is the effect of Rule 320 (7B).

There is some hope for people who make mistakes when completing application forms to be got from SA (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 1510, in which  Sir David Keene said (refusing permission to appeal to the Court of Appeal), about the same Rule:

"Of course there is some force in what [counsel for the Appellants] says about the approach which one should adopt towards the interpretation of the Immigration Rules. They are to be interpreted sensibly and not as strictly as one would when construing a statute. See for example R v IAT ex parte Alexander [1982] 1 WLR 1076 at 1080.
8. That would entitle, in my view, an immigration judge to regard a trivial and innocent mistake in an application form as falling outside the terms of this provision."

However what really emerges from this case is the need for anyone making any application to the UKBA to seek professional legal advice before completing any forms.