The Immigration Rules' "General grounds for refusal" include Rule 320 (7A), which requires Entry Clearance Officers to refuse any application for entry clearance to come to the UK:
"(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 have not been disclosed, in relation to the application.”
By this Rule an application for entry clearance must be refused if it contains a false representation. As the Court of Appeal noted in AA (Nigeria) V Secretary of State for the Home Department [2010] EWCA Civ 773 – in the English language the word "false" can mean "inaccurate" (i.e. mistaken) but it can also mean "deceitful”. The phrase contained in Rule 320 (7A): "whether or not to the applicant's knowledge– indicated that either of these meanings was apparently applicable.
The Court was concerned as to the intention behind Rule 320 (7A) and its equivalent for applications for an extension of someone's leave to remain in the UK, Rule 322 (1A) because of the notorious Rule 320 (7B), which introduced re-entry bans to the UK for the first time.
Rule 320 (7B) requires Entry Clearance Officers to refuse applications made by someone who has "used Deception" in a previous application until ten years have passed since that application.
The case before the Court was the appeal of a young Nigerian man who had entered the UK in 1999 as a student. He later applied for leave to remain as a post-study work migrant. When he completed his application form he answered "no" to the question of whether he had any criminal convictions, including traffic offences. (This is just a box on the form). In fact he had three convictions for driving without a licence or insurance. He said that he had not realised that those were criminal convictions.
The Secretary of State found that the Appellant had made a false representation in his application and it was therefore mandatorily refused under Rule 322(1A). The refusal notice spelt out the consequences as follows:
"This means that any future applications for entry clearance or leave to enter the UK you make will be refused under paragraph 320(7B) of the Immigration Rules (unless it would breach your rights under the Human Rights Act 1998 or the Refugee Convention) for the following period starting on the date on which you leave the UK following this refusal:
One year if you leave voluntarily, without our having to pay or contribute to the costs of your departure;
Five years if you leave voluntarily at the Government's expense;
Ten years if we remove or deport you."
An Immigration Judge ignored his claim to have acted honestly because the inaccuracy of his representation in ticking the "no" box on the form had made it false, meaning that the Secretary of State had had no discretion to accept his application.
In its attempt to try to make sense of what Rule 320 (7A) actually meant or was meant to mean, the Court of Appeal had regard to the record of the debate in Parliament at the time of the changes to the Immigration Rules.
In that debate a Home Office minister had defined "false document" as requiring dishonesty. Another minister was asked whether that definition applied to false representations, and wrote a letter in which he referred to relevant Home Office guidance and stated that the Rules were intended to cover people who told lies and not people who made innocent mistakes. Although the letter was mainly concerned with Rule 320(7A), covering mandatory refusal of applications for leave to enter, the same language was contained in Rule 322(1A), which covers mandatory refusals of applications for leave to remain.
In the light of the minister's clarification it was impossible to conclude that "false" in "false representations" had the morally neutral meaning of "incorrect".
Instead dishonesty or deception was needed, although this need not be deception or dishonesty perpetrated by the applicant himself or herself, for "false representation to be a ground for mandatory refusal.
So without dishonesty Rule 320 (7A) wouldn't have been correctly applied. It was therefore necessary for the question of whether the Appellant's answer in his application had been dishonest to be remitted to the Asylum and Immigration Tribunal. (Since this no longer exists the appeal will go before the Immigration and Asylum Chamber of the Upper Tribunal).
Most importantly it places the obligation squarely on the Secretary of State to satisfy herself that an applicant for entry clearance or for leave to remain really did mean dishonestly to represent a matter contained in his or her application. On any appeal the Tribunal will equally have to be satisfied in order to uphold the decision.
The re-entry ban regime brought in by Rule 320 (7B) has, since its introduction in April of 2008, needed to be put under careful scrutiny by the senior courts. Until this judgment applicants (and Appellants) have too often suffered from the effect of the ambiguity in Rules 320 (7A) and 322 (1A) which has now been resolved by the Court of Appeal.