Thebo, R (on the application of) v Entry Clearance Officer Islamabad (Pakistan) [2013] EWHC 146 (Admin)

Case No CO/5668/2011[2013] EWHC 146 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/02/2013
Before
MR JUSTICE MOSTYN
Between
The Queen (on the application of AAFIA THEBO)ClaimantEntry Clearance Officer Islamabad (Pakistan)Defendant
(Transcript of the Handed Down Judgment 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 Shahadoth Karim (instructed by MLC Solicitors) for ClaimantMr Richard Moules (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 30 January 2013
JudgmentMr Justice Mostyn :
[1]There are two questions which I have to answer on this application for judicial review. First, are paragraphs 320(7A) and (7B) of the Immigration Rules unlawful so that the relevant decisions of the Entry Clearance Officer made under them cannot stand? Second, was the claimant dishonest in her application for entry clearance? It is agreed that I must decide this issue as the question of dishonesty goes to jurisdiction. If I decide that the claimant was not dishonest then the relevant decisions cannot stand and must be quashed.[2]It is agreed that if I decide the first question in favour of the claimant then this judgment will have deep ramifications in terms of the application not only of these paragraphs of the Immigration Rules but also much more widely.[3]The claimant is a paediatrician who originates in Pakistan. She has a lengthy immigration history which I will explain in more detail later. On 6 July 2010, when in Pakistan, she applied using form VAF9 for entry clearance as a Tier 2 General Migrant. She had sponsorship from an NHS hospital here. That could only have been granted by the sponsor were it satisfied that the post in question could not be filled by a British or EU citizen. It is therefore argued on her behalf that the public benefit would be served by her admission here. The Secretary of State agrees that in principle she would be a suitable person to take up the post on offer.[4]However, on 22 July 2010 the Entry Clearance Officer refused her application. The claimant sought administrative review; this was refused on 14 October 2010. On 11 January 2011 the Entry Clearance Officer, following reconsideration of further submissions, again refused the application. On 9 March 2011 following another request for administrative review the Entry Clearance Officer yet again refused the application. The reason for these repeated refusals was the finding by the Entry Clearance Officer that the claimant had made dishonest representations in her application. These decisions were made pursuant to paragraphs 320(7A) and (7B).[5]On 16 June 2011 the claimant issued in these proceedings and permission was granted for them to proceed on 1 February 2012.

The legal landscape

[6]Historically the control of the immigration of and grant of citizenship to aliens was vested in the Crown alone: see R v Bottrill [1947] 1 KB 41, 51 per Scott LJ. It was part of the Royal Prerogative, and as every student of constitutional law knows, that has, since the constitutional settlement of 1689 – 1701, devolved from the Monarch to the Home Secretary. However from time to time Parliament has intervened: an early example was the StatuteFor Those Who Are Born In Parts Beyond (the) Sea 1350, 25 Edw. 3 Stat. 1 (which remains in force as regards the inheritability of the Monarch’s children). In R (Alvi) v Home Secretary [2012] 1 WLR 2208, SC, Lord Hope of Craighead DPSC set out a history of the evolution of the present law and practice in this field. He explains how the Immigration Appeals Act 1969, s24, first prescribed rules to be made by the Secretary of State for the administration of(a) the control of entry into the United Kingdom of persons to whom Commonwealth Immigrants Act of 1962 applies; and(b) the control of such persons after entry, being rules which have been published and laid before Parliament.[7]That Act was repealed by the Immigration Act 1971, which was stated, by its preamble, “to amend and replace the present immigration laws”. The 1971 Act did not claim to appropriate the Royal Prerogative in relation to immigration: on the contrary, by s33(5) it is provided that “this Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative”. However, the Act significantly regulated the exercise of the Crown’s powers. Section 3(1)(b) naturally provided that the Secretary of State may give leave to a person who is not a British citizen to enter the United Kingdom for a limited or indefinite period. This did no more than to confirm the existing prerogative power, which is, of course, in the nature of a discretion.[8]By section 3(2) and 1(4) Parliament reiterated the requirement in the 1969 Act on the Home Secretary to make rules. These rules have to specify the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode. They have to include provision for admitting persons for the purposes of employment, or study, or as visitors, or as dependents of people already lawfully here. They must include specific rules about the period for which leave is to be given and the conditions to be attached in different circumstances. The reason why there was a requirement on the Home Secretary to promulgate rules is obvious: an applicant migrant must surely be entitled to know by what criteria his application will be adjudicated (see Alvi at para 82, per Lord Dyson JSC (as he then was)).[9]Section 3(2) goes on to provide that a statement of the rules shall be laid before Parliament and that if such a statement laid before either House is disapproved by a resolution passed within 40 days then the Secretary of State must make such changes in the rules as appear to be required in the circumstances. This procedure is of course very similar to the negative resolution procedure applicable to thousands of statutory instruments of great importance passed every year. These become law without a debate or vote but are subject to annulment by a resolution of either House of Parliament.[10]In Alvi Lord Hope explains how the rules in their original manifestation were no more than broad statements of guidance or policy but that with their continual evolution this is no longer so. The adoption of the Australian style points-based system in 2008, the ever increasing complexification of their terms, and the resort to modern technology for their administration, has meant that, as Lord Hope put it, "the emphasis now is on certainty in place of discretion, on detail rather than broad guidance" (see para 42). As Lord Hope says there is much in this change of approach which is to be commended. As a result we now have a substantial, complex, detailed body of rules (running to over 400 paragraphs and 26 Appendices) which are properly described as legal rules or at least quasi-legal rules. Certainly they are rules which carry with them rights of appeal to statutory tribunals which will determine the disputes before them in accordance with the rule of law.[11]In Alvi at paragraph 41 Lord Hope observed that while there was no enabling statute in this case the 1971 Act must, nonetheless, be seen as the source of the powers vested in the Secretary of State, and that it is the Act which provides the statutory machinery for their exercise. I have tried to explain how the Act does not supply the very power exercised by the Secretary of State; indeed Parliament was careful to state that the Act neither impaired nor superseded the Royal Prerogative in this field. Certainly the Act regulates the exercise of the prerogative and in this sense is the source of the powers vested in the Secretary of State; further, the insistence that rules be made and laid before Parliament (which may be overturned by a resolution of either House) certainly provides the "statutory machinery" for the exercise of the prerogative. But as I will explain, and this is central to the first issue which I have to decide, the Act and the rules do not compendiously and exhaustively define the full scope of the discretionary powers exercised by the Secretary of State under the prerogative.[12]In Alvi at paragraph 31 Lord Hope stated:
“It is still open to the Secretary of State in her discretion to grant leave to enter or remain to an alien whose application does not meet the requirements of the Immigration Rules. It is for her to determine the practice to be followed in the administration of the Act. But the statutory context in which those powers are being exercised must be respected. As their source is the 1971 Act itself, it would not be open to her to exercise them in a way that was not in accordance with the rules that she has laid before Parliament.” and at para 33: “But the scope of that duty is now defined by the statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law prerogative. It excludes the possibility of exercising prerogative powers to restrict or control immigration in ways that are not disclosed by the rules.”
(emphasis added)[13]These statements must be seen in the statutory context. Section 3 is intituled “General provisions for regulation and control” and sections 3(2) and 1(4) are plainly intended to provide for Parliamentary scrutiny, through the publication and laying of the rules, of restrictions of, and controls on, immigration. Plainly the Secretary of State cannot when making her decisions adopt and apply a policy of restriction and control which is more confined and rigorous than the rules stipulate. On the other hand the Secretary of State is surely perfectly entitled in an individual case to decide it more generously than the rules, literally read, allow. This is why Lord Hope refers in the passage in para 33 which I have cited to “powers to restrict or control immigration in ways that are not disclosed by the rules.” Of course were such latitude to become commonplace then Parliamentarians may well start to wonder whether the rules were being paid more than lip service and in that event, as Mr Moules rightly says, the Secretary of State may well have to answer for her decisions on the floor of the House.[14]It is for these reasons that the phenomenon has arisen of "applications made outside the rules", and these are fairly regular. Decisions on them from time to time give rise to applications for judicial review. Mr Moules was not able to gave me statistical data about the volume of such applications but they are certainly made and decided, if infrequently. I therefore respectfully disagree with the excellent arguments of Mr Malik that the effect of the decision in Alvi is to abrogate entirely the residual discretion of the Secretary of State to make a decision in favour of an applicant migrant which is more favourable than a literal reading of the rules allows. Put another way, there remains vested in the Secretary of State a residual discretion by way of safety net for those hard cases dealt with over-harshly by the rules as framed. It is worth noting that in this very case on 5 November 2007 the claimant made an application outside the immigration rules to remain here.[15]In his submissions Mr Malik made a generalised challenge to the democratic credentials of the rules as a whole. He referred me to Huang v Home Secretary [2007] 2 AC 167 where at para [17] Lord Bingham stated that the Immigration Rules and supplementary instructions cannot truly be said to represent a considered democratic compromise:
“they are not the product of active debate in Parliament, and non-nationals seeking leave to enter or remain are not in any event represented there”
. That is certainly true but the same must also be said of the thousands of statutory instruments passed under the negative resolution each year to which I have referred above. They are unquestionably valid laws, democratically enacted under a procedure which is necessary for the efficient practical functioning of Parliament.[16]So too with the immigration rules. They are made by a democratically elected representative serving as Home Secretary; they are laid before Parliament; and they can be overturned by a Parliamentary vote. Sometimes, as was the case in relation to the July 2012 changes, they are the subject of a Parliamentary debate and vote. In my opinion they have a meaningful democratic content.

Paragraphs 320(7A) and (7B)

[17]I now turn to Mr Malik's specific challenges to paragraphs 320(7A) and (7B). These are contained within Part 9 which is intituled “General grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom”. They were laid before Parliament on 6 February 2008, nearly 5 years ago. They provide: “Grounds on which 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. (7B) where the applicant has previously breached the UK's immigration laws (and was over 18 at the time of his most recent breach) by:(a) Overstaying;(b) breaching a condition attached to his leave;(c) being an Illegal Entrant;(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); unless the applicant: (i) Overstayed for 90 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State; (ii) used Deception in an application for entry clearance more than 10 years ago; (iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago; (iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of the removal decision, or no more than 6 months after the date on which the person no longer had a pending appeal; whichever is the later; (v) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago; (vi) was removed or deported from the UK more than 10 years ago or; (vii) left or was removed from the UK as a condition of a caution issued in accordance with s.134 Legal Aid, Sentencing and Punishment of Offenders Act 2012 more than 5 years ago. Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.”

unless the applicant:

[18]Mr Malik draws my attention to the mandatory nature or quality of the language in the sub-heading. It says “Grounds on which entry clearance or leave to enter the United Kingdom is to be refused”. He contrasts this with the permissive or discretionary quality of the language used in the next sub-heading which says “Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused”. In his skeleton argument he states:
“In the circumstances, Paragraph 320(7A)/(7B) of the Immigration Rules must be assessed on the footing that it is executive’s attempt (as opposed to Parliament’s attempt) to mandatorily exclude certain individuals from the United Kingdom. ”
[19]He argues that that this attempt at mandatory exclusion is impermissible and therefore unlawful. He relies on the well known dicta of Lord Reid in British Oxygen Co v Board of Trade [1971] AC 610, at 625B, that discretion “must not be exercised in bad faith, and it must not be so unreasonably exercised as to show that there cannot have been any real or genuine exercise of discretion” and that “what the authority must not do is to refuse to listen at all”. He relies on the dicta of Lord Browne-Wilkinson in R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407, at 469, that: “when Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time ... in consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future …by the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise…these considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases ... but the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised …if such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful”. (emphasis added)[20]When taken with his argument (which I have rejected) that the residual discretion has been abrogated he contends that Paragraph 320(7A)/(7B) indeed represents such an “inflexible and invariable” policy, where the Secretary of State has in effect bound herself not to listen at all. He further supports this by reference to Secretary of State for the Home Department v R (S) [2007] EWCA Civ 546 where the complaint was about the Secretary of State’s policy of postponing consideration of applications. Carnwath LJ held this to be “a textbook example of fettering discretion” and held, at paragraph 50, that “a public authority may not adopt a policy which precludes it from considering individual cases on their merits”.[21]Without retreating from his argument concerning the abrogation of the residual discretion Mr Malik recognised that exceptions may operate in practice. This did not however save the challenged paragraphs. He referred to Attorney General ex rel Tilley v Wandsworth LBC [1981] 1 WLR 854 where a local authority had adopted an adamantine policy of refusing to consider providing housing to an intentionally homeless family under the Children and Young Persons Act 1969. This was held to be unlawful. Templeman LJ stated: “On well recognised principles public authorities are not entitled to fetter the exercise of discretion or to fetter the manner in which they are empowered to discharge the many duties that are thrust on them … They must at all times, in every particular case, consider how to exercise their discretion and how to perform their duties … [Even if] this was a general policy and not a mandatory order, the resolution would not get rid of the vice that a local authority, dealing with individual children, should not make a policy or an order that points towards fettering its discretion in such a way that the facilities offered to the child do not depend on the particular circumstances of that child, or of the child's family, but follow some policy that it expressed to apply in general cases”.[22]Thus Mr Malik argues that Paragraph 320(7A)/(7B) fetters in exactly the same way the manner in which the statutory discretion is to be exercised. It is, he says, in these circumstances, irrelevant if any exceptions operate in practice.[23]Mr Moules for the Secretary of State firmly resists the challenge to the lawfulness of these paragraphs. He argues that: i) Paragraphs 320(7A) and(7B) are not an unlawful fetter on the Secretary of State’s discretion because she has power to grant entry to the United Kingdom outside the Immigration Rules. ii) Further and alternatively, the non-fettering principle does not apply to the Immigration Rules. The 1971 Act confers a rule-making power and the only question is whether the Secretary of State has made rules within the purpose of the statutory power that are rational[24]In relation to his first contention Mr Moules argues that the rules do not purport to cover the full extent of the Secretary of State’s discretion, nor do they purport to cut down the residual discretion. It is always open to the Secretary of State exceptionally to grant leave to enter to an individual whose case falls to be refused under paragraph 320(7A)/(7B) of the Immigration Rules and those provisions do not therefore fetter her discretion.[25]As to his second contention Mr Moules points out that the no-fettering principle is not absolute. He refers to British Oxygen Co Ltd v Minister of Technology [1971] A.C. 610, at 625, where Lord Reid held that it was only “the general rule” that “anyone who has to exercise a statutory discretion must not ‘shut his ears to the application’…” He contends that there are exceptions. He refers to Nicholds v Security Industry Authority [2006] EWHC 1792 (Admin) [2007] 1 WLR 2067. In that case there was a challenge to the licensing criteria prepared and published by the Security Industry Authority under section 7 of the Private Security Industry Act 2001. It was about the licensing criteria to be applied to door supervisors (or bouncers) at night clubs and similar places. By s7 a duty was imposed on the Authority, before granting any licences, to prepare and publish a document setting out the criteria which it proposes to apply in determining whether or not to grant a licence. The document (which when in draft had been put out for public consultation) provided that a conviction for a relevant criminal offence automatically debars an applicant for a substantial period from qualifying. The claimants had been denied licences on this ground. They argued that this was in breach of the no-fettering of discretion principle.[26]Kenneth Parker QC held at para 60:
“…in this instance Parliament has deliberately, by section 7, conferred a rule making power on the Authority. It is for the Authority to draw up what it believes are the appropriate criteria for the grant of licences for door supervisors. The criteria are challengeable only on the grounds of ultra vires, Wednesbury irrationality or lack of proportionality.”

And at para 61:

“This argument not only infringes the prescription of the “no fetter” principle itself (as he reads it), which assumes that there is an exception to every case, but, more importantly, it is not, in my view, supported by authority or legal policy. Lord Reid was careful, in the passage cited from British Oxygen, to refer to “the general rule.”
In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose. However, it seems to me that there are certain exceptional statutory contexts where a policy may lawfully exclude exceptions to the rule because to allow exceptions would substantially undermine an important legislative aim which underpins the grant of discretionary power to the authority.” (emphasis in original) And at para 61:[27]Mr Moules argues that it should not be thought that the exception only applies where Parliament has expressly endowed a rule-making power on a body. It can also apply where the executive sets up an extra-statutory scheme. In R (Elias) v Secretary of State for Defence & Anor [2005] EWHC 1435 (Admin) the court was concerned with an ex gratia extra-statutory scheme of compensation set up by the Government for those interned by the Japanese during the Second World War. The scheme contained what was described as "the birth link criteria". So far as civilian internees were concerned, in order to qualify, they either had to have been born in the United Kingdom or have a parent or grandparent born here. The claimant, who was born in Hong Kong and whose parents and grandparents were born outside the UK was interned in Hong Kong during the occupation of the colony from Christmas Day 1941 to the surrender on 15 August 1945. She challenged the birth link criteria, on, among other grounds, the no-fettering of discretion principle. Her claim failed. Elias J held at paras 35 – 36:
“The purpose and scope of the scheme is to be gleaned from its language rather than statements as to its broad objective. It has been carefully framed and its purpose is plainly not to compensate people like Mrs Elias who do not satisfy the birth link. ... I see no basis for saying that because the government agrees to make payments in a certain class of situations, that it is now obliged to consider applications from those who do not fall within the rules in a different way than it would otherwise have done. In my judgment it is not obliged in every case effectively to consider extending the scheme on a case by case basis beyond the scope which it has carefully delineated. The court's task is to give effect to the scheme established by the Crown in the same way as it would a scheme established by legislation. It is no more an unfair or unlawful exercise of power for the Crown, acting through the Minister, to refuse to consider exceptional cases under the common law scheme than it would have been under a statutory scheme”
[28]Mr Moules argues that these paragraphs under challenge lie between the two decisions of Nicholds and Elias. In the former the court was concerned with rules made by a body which was specifically told by the statute to make them; in the latter the rules were made by the Crown under its common law or prerogative powers. But in each case the rule maker was entitled to frame his rules to provide a strict exception-free body of criteria. So here, argues Mr Moules, where Parliament requires the Secretary of State to make rules concerning the exercise of her powers to control immigration.

Conclusions on the First Issue

[29]I agree with both of Mr Moules’s arguments. I have already decided above that the residual discretion is not abrogated by the decision in Alvi. I have been concerned, up to a point, by the argument of Mr Malik that the terms of the paragraphs are expressed in such uncompromising language that the exercise of the residual discretion is virtually emasculated. In this regard the observations of Templeman LJ in Tilley support him where reference is made to a policy that points towards fettering discretion. Further, Templeman LJ stated at 858G that he was not persuaded that "even a policy resolution hedged about with exceptions would be free from attack". However, Brandon LJ (with whom Lawton LJ agreed) made a reservation in respect of that last statement. He was satisfied that the case concerned a policy without any exceptions at all and was therefore invalid. A policy which contains a number of specified exceptions should be considered in a case where it arose for decision.[30]In my judgment a policy which has the safety net of a residual discretion cannot be described as a policy which binds the decision maker to refuse to listen provided that the residual discretion is meaningful and not just an empty gesture. I am satisfied that the residual discretion here is not just false air and lives on in a meaningful and active way and that therefore while the paragraphs can properly be described as tendentious they do not amount to an illegitimate and impermissible fetter on the discretion of the Secretary of State.[31]In any event, I am also satisfied that these rules fall outwith the no-fettering of discretion principle. I agree that this case falls squarely between the bookends of Nicholds and Elias. In Alvi at para 42 (per Lord Hope) and 111-112 (per Lord Walker) it was emphasised that the immigration system had to be both predictable and workable. Therefore the Secretary of State must be entitled to lay down what Mr Moules has described as “bright-line rules”. Given that she is enjoined to make rules which control immigration I simply cannot see how a rule which, subject to her residual discretion, requires her to refuse entry in certain (understandable) circumstances can be categorised as irrational and therefore unlawful. On the contrary, I consider these rules to be completely rational. If their language is tendentious then that does not amount to an impermissible fettering of discretion since they are made in pursuance of an important legislative aim.[32]I therefore reject the first ground of challenge.

The Dishonesty Issue

[33]I must now set out the immigration history of the claimant prior to her application on 6 July 2010.[34]On 9 May 2002 the claimant was issued with a visitor's visa for six months. On 11 November 2002 she applied for an extension to take the Professional and Linguistic Assessments Board (PLAB) test. This is the main route by which International Medical Graduates demonstrate that they have the necessary skills and knowledge to practise medicine in the UK. On 9 July 2003 this application was refused; but on 19 November 2004 the Secretary of State withdrew that refusal and granted the claimant leave to remain until 31 May 2005. On 26 May 2005 the claimant applied for further leave to remain here to take the PLAB test and on 16 June 2005 that was granted until 16 December 2005. Again on 14 December 2005 the claimant applied for more time in which to take and pass the test. I infer that up to this point she had failed it at least once. On 17 January 2006 the claimant was granted leave to remain until 1 June 2006; that took her to the maximum period of 18 months in which to take and pass the test. On 31 May 2006 the claimant applied for yet further time to retake the test (she must have failed it) but on 5 July 2006 her application was refused with no right of appeal.[35]On 5 November 2007, as I have mentioned above, the claimant made an application outside the immigration rules for leave to remain here. That was refused on 17 October 2008 but a right of appeal was granted. On that same day the claimant was served with Form IS151A. This stated that she was specifically considered to be a person who had overstayed her period of granted leave and was therefore liable to be the subject of removal directions and detained. On that day the claimant was made subject to a reporting requirement -- from then she reported monthly to the UKBA at Becket House. On 21st of October 2008 the claimant was served with Form IS151B which notified her that a decision had been taken to remove her from the United Kingdom.[36]The claimant mounted an appeal based on human rights grounds. On 11 December 2008 following an oral hearing at which the claimant gave testimony and was cross-examined the appeal was dismissed. In his judgment Immigration Judge Beg stated at paragraph 32 "I find that the appellant also continued applying for jobs in the full knowledge that she had no leave to remain in this country".[37]On 21 October 2009 the claimant, who had not returned to Pakistan, applied for leave to remain here as a Tier 2 General Migrant. On 7 December 2009 that application was refused with no right of appeal. On 19 May 2010 the claimant applied for leave to remain here under article 8 of the Convention. On 22 June 2010 that application was refused with no right of appeal. The letter giving that decision referred to the claimant’s reporting restrictions mentioned by me above. A few days earlier on 17 June 2010 the claimant’s solicitors had written to the UKBA withdrawing her application and requesting the return of her passport. The letter stated that the claimant intended to return to Pakistan to make a fresh entry clearance application from there. On 29 June 2010 the claimant attended at her local immigration office and signed a "disclaimer in the case of voluntary departure". This form acknowledged that she had been notified that she was liable to be removed; that she wished to withdraw all applications or claims made by her to stay here; and that she had purchased a travel ticket to leave.[38]The claimant duly travelled to Pakistan where she made her application on 6 July 2010 in form VAF9 for entry clearance as a Tier 2 General Migrant.[39]The form says at the top "please follow the guidance notes carefully and complete all questions as indicated. ... It is better to explain why you do not have any document than to submit a false document. Your application will be automatically refused and you may be banned from coming to the UK for 10 years if you use a false document, lie or withhold relevant information. You may also be banned if you have breached immigration laws in the UK."[40]In my opinion there is a duty of candour imposed on an applicant completing this form. What is not acceptable is to answer the questions au pied de la lettre. It is unacceptable to give literal answers which may be the truth but which on any view do not comprise the whole truth.[41]Question 6.6 of the form asks "have you ever been in breach of your immigration conditions for the UK?" The claimant neither ticked the Yes box nor No box. In the box supplied for a narrative explanation the claimant stated that she "voluntarily withdrew an application for further leave to remain in the UK and have come to Pakistan seeking entry clearance (Tier 2) after a job offer from the NHS".[42]Question 6.7 asks "have you ever been deported, removed or otherwise required to leave any country, including the UK?" Here the claimant ticked the No box and wrote nothing in the narrative box underneath.[43]Question 6.8 asks "have you made an application to the Home Office to remain in the UK in the last 10 years?" Here the claimant ticked the Yes box and wrote in the narrative box underneath only "2010 -- further leave to remain -- pending but withdrew applying for Tier 2 entry clearance from Pakistan".[44]Question 7.1 asks "is there any other information you wish to give in support of your application?" Here the claimant wrote "I would like to bring a matter of urgent consideration before you, that is, that it has been highly recommended by my employers for all the appointees to attend a two week shadowing course prior to the commencement of the foundation -- one year; 03/08/10. Now the date stands at 20/07/10, which is why I intend to arrive in the UK a day earlier; 19/07/10. I must mention the fact that I already possess my airline ticket to the UK".[45]I have recited in paragraph 4 above the fate of this application. The claimant has since entered the UK but I am not told how or on what basis.[46]Mr Malik argues that the operative decision is that of 9 March 2011. In that decision the administrative reviewer concluded that "I am satisfied false representations were made in relation to your application and the decision to refuse your application is upheld". However in that decision, as indeed in all the prior decisions, reference was made only to the claimant's reply to question 6.6. Mr Malik argues that the decision maker has in effect defined the territory in respect of which my decision in relation to dishonesty can be made. He says that I am disabled from considering whether there was dishonesty in relation to any of the other questions I have mentioned above. He says that the answer given by the claimant to question 6.6 was strictly correct: she had not had "conditions" in the technical or term-of-art sense used in the statute or the rules since she had never been granted leave and conditions can only be attached to such a grant. He argued that this question was not asking whether any conditions in the wider sense of that word had been applied to the claimant when in the United Kingdom. Her answer was therefore strictly true and she should not have been fixed with a finding of dishonest falsity.[47]Mr Moules disagrees and states that I should consider the question of the honesty or otherwise of the claimant in relation to everything said by her in the form. He says that the claimant was demonstrably dishonest in her answers given her extensive and extremely unimpressive immigration history which I have recounted above, about which she said nothing.

My conclusions on the dishonesty issue

[48]Mr Moules accepts, and I agree, that a determination under Paragraphs 320(7A) requires a finding of dishonesty. Innocent misrepresentations will not engage the paragraph. In my opinion the decision of UTJ McKee in Ahmed [2011] UKUT 351 (AAC) is correct in this regard.[49]If a court is considering the question of dishonesty de novo, as it is agreed I should do here, then the court is not artificially confined to the territory in which the fact-finder made his determination. This would in my opinion likely lead to serious injustice and indeed would be absurd. Further, as I have said above there is a duty of candour on an applicant when completing the form and this extends to giving all relevant immigration history.[50]The representations made by the applicant were a combination of deliberately false representations and extensive dishonest nondisclosure. Even if I were confined to question 6.6 alone I would conclude that the answer to that was deliberately misleading, and in that regard the fact-finder reached the correct decision. However, I believe I am entitled to consider all the answers and looked at as a whole I conclude that this application is shot through with dishonesty almost from start to finish.[51]I therefore reject the second ground of the challenge and dismiss this application for judicial review.

Cited in 13 later judgments

and 4 more of the most senior