SS (Nepal) v Entry Clearnace Officer [2013] EWCA Civ 1206

Case No C5/2012/2370[2013] EWCA Civ 1206
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 25 th July 2013
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE ELIASLORD JUSTICE LEWISON
Between
SS (NEPAL)AppellantENTRY CLEARNACE OFFICERRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Zane Malik and Mr Nazir Ahmed (instructed by Messrs Ash Norton) appeared for Appellant.Mr Andrew Sharland (instructed by Treasury Solicitors) appeared for Respondent.
Judgment
[1]The appellant, a citizen of Nepal, was born on 31 July 1994. He is the son of a Ms Pardhan who has a residence permit as a domestic worker allowing her to live in the UK. He sought entry clearance to join his mother. The Secretary of State refused his application on the grounds that the applicant did not comply with any of the conditions in paragraphs 197(vi)(a) of the Immigration Rules. That provision deals with the circumstances where a child may join another family member in this country. In addition, she held as a distinct and separate reason for refusing the application for entry clearance that he had infringed paragraph 320(A) of the Immigration Rules. This is as follows:
“Entry clearance or leave to enter the United Kingdom is to be refused… (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 have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application…”
The representation is false only if it is dishonest: see the observations of this court in the case of Adedoyin v SSHD [2010] EWCA Civ 733, [2011] WLR 564.[2]The applicant unsuccessfully sought to appeal these findings first to the First-tier Tribunal and then to the Upper Tribunal. He then sought to appeal the Upper Tribunal’s decision in relation to paragraph 320(7A) to this court. He was given permission to do so. He did not seek permission in respect of paragraph 197 however. Accordingly, even if he is successful in his appeal, the decision not to grant him entry clearance will still stand.[3]Mr Malik has sought to explain to us today why he wished to challenge the Upper Tribunal’s finding notwithstanding that even if successful, his client cannot gain the right of entry. His first explanation was that rule 320(7B)(ii) provides that if an applicant for entry clearance is found to have sought to obtain entry by deception in his application, whether the application was successful or not, he cannot re-apply for entry for at least ten years. We agree that in principle he would be justified in appealing the Upper Tribunal’s ruling on that point so as to avoid the application of that provision should he re-apply for entry. However, in fact this particular restriction did not and still does not apply to someone who was under the age of 18 when he gave the false information. That is made clear in paragraph 320(7C)(b) which was in force at the material time. (The principle still applies but now under a different rule.)[4]However, today Mr Malik identified a further difficulty which justifies the court ruling on this appeal. It arises because of the terms of paragraph 320(11), which provides that entry clearance would normally be refused:
“(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules”
[5]That paragraph goes on to say that guidance will provide examples of the circumstances in which an applicant who has previously overstayed or breached a condition, or acted in various other unacceptable ways, is likely to be considered as having contrived in a significant way to frustrate the intentions of the rules.[6]We were taken to the guidance. It is not necessary to deal with it any detail. It provides that paragraph 320(11) would typically apply where there have been, amongst other matters, breaches of the Immigration Rules and where there are aggravating circumstances. There is a list of aggravated circumstances which is said not to be exhaustive. They do not specifically cover the deception which allegedly arose in this case. But one paragraph of the guidance is as follows:
“Where 320(7C) applies (which makes an applicant exempt from 320(7B)) an ECO must consider whether a refusal under paragraph 320(11) is appropriate.”
We heard some debate as to whether the terms of this guidance would entitle an entry clearance officer to refuse an application under paragraph 320(11) in a case of this kind. We prefer to express no concluded view on that, since the arguments were advanced very much on the hoof and without counsel having had an opportunity properly to consider the point.. Suffice it to say that we are satisfied that it is possible that paragraph 320(11) could be a ground on which an entry clearance officer could in future choose to refuse entry to this applicant, notwithstanding that he was a minor when the deception was practised. For that reason we are obliged to consider the merits of the case.[7]I turn to consider the basis of the appeal. The alleged representation occurred in the following way. In interview the applicant stated he had been living with his father in Nepal. However, he had earlier submitted an application in which, when asked to provide details about his parents and guardians in his home country, he simply replied that he had an uncle, the brother of his mother. He made no mention in that answer of his father, and in a later interview he made no mention of his uncle. He signed a declaration on the application form stating that the information was true to the best of his knowledge and belief.[8]The entry clearance officer considered that this constituted a false representation or a failure to disclose material facts. There was an appeal to Immigration Judge Ms Lee sitting in the First-tier Tribunal in Scotland. She noted that there was no explanation for the answer given to the question posed in the application. He had signed the application. In the circumstances the judge was satisfied that there had been a false statement and she further concluded that it was more likely than not that there had been a deliberate attempt to deceive rather than an accidental error. So this was a finding of fact that the applicant had acted dishonestly in relation to the application.[9]The appellant appealed to the Upper Tribunal but the Upper Tribunal dismissed the appeal and found no error of law. It specifically rejected an argument that the FTT had wrongly placed the burden on the applicant to demonstrate that there was no deception rather than on the Secretary of State prove that there was.[10]The single ground of appeal now starts from the submission that the courts below had misunderstood the use of the word “application” in rule 320(7A). The submission is that it is not simply the application form that must be considered; the application consists in this case of both the application form and the interview. So when considering whether the applicant has provided false information or failed to disclose information must be assessed by considering the application as a whole.[11]Thus far the respondent agrees with that submission and so would I. It seems to me that that is the natural meaning of the provisions, and it is well established that the Immigration Rules should be read in a natural way, concentrating on the language of the rule construed against the relevant background: see the observations of Lord Hoffmann in Odelola v SSHD [2009] UKHL 25; [2009] 1 WLR 1230.[12]It is the next stage where the parties are in dispute. Mr Malik QC submits that where an applicant gives inaccurate information on the application form but then later provides accurate information at the interview, or indeed vice versa, it cannot be said that overall he has made a false representation in the application. Where there is conflicting information of that kind he accepts that the Secretary of State can conclude that the evidence is unreliable and can choose to give it no weight. But it is not properly described as the giving of false information where at some point in the application accurate information has been given. Alternatively it can be said that the false representation is cured. So even though there is a finding that in failing to provide information in the application form the applicant had behaved dishonestly - and Mr Malik did not seek to go behind that finding - nevertheless it is wrong to say that there is a false representation amounting to dishonesty in the application as a whole, because a true answer was given in the subsequent interview.[13]I reject the submission essentially for the reasons given by the Secretary of State. A true representation at some point in the application process cannot sensibly be said to correct a dishonest representation at another point. Of course, if an applicant seeks voluntarily to correct what he or she claims is an inadvertent error on the application form, that might be different; it might show that there was a genuine mistake and no intention to deceive. But that is not this case. The whole purpose of the rule is to ensure that applicants are honest throughout the application process. It is no answer for the applicant to state that although he may have given false information on the application form, he told the truth at some point later.[14]As the Secretary of State points out in his written submissions, if the appellant’s interpretation were correct, it would permit an individual to lie on the application form, and then when he was found out he could contend that he had not made a false representation on the application considered as a whole, because he had been found out and was now making a true statement. That interpretation is, in my view, both wholly without merit and is inconsistent with the natural reading of the rules. In my judgment, if one simply goes back to the plain words in 320(7A) the application failed to disclose material information which was “in relation to the application”. Accordingly I would dismiss the appeal.[15]I agree. Entry clearance would not be refused unless the falsity of a representation was discovered at some stage in the application as a whole. The refusal of entry clearance is predicated on the failure of an attempt to deceive whether by subsequent detection or subsequent admission. I admit with my Lord that the argument advanced by Mr Malik is without substance. I too would dismiss the appeal.[16]I also agree. I agree with both judgments.

Order

Appeal dismissed