Dishonesty and deception in immigration cases
Paragraph 322 (1A) of the Immigration Rules provides a mandatory ground for refusal in the following circumstance:
“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.”
Paragraph 6 of the Immigration Rules defines deception in the following way:
“Deception” means making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.”
The Secretary of State for the Home Department also has the discretion under paragraph 322(5) of the Immigration Rules to refuse an application on a public policy basis:
“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security”
Following a consistent string of appeals surrounding the theme of deception going to the Upper Tribunal, without being reported, the Upper Tribunal Reporting Committee has recently reported the case of Khan, R (on the application of) v SSHD [2018] UKUT 384 (IAC). Whilst this judgment is not a Court of Appeal or Supreme Court judgment, it does provide litigants and immigration practitioners with fuller guidance on the intricate theme of deception.
The Facts
This case involved an Applicant who submitted an application for indefinite leave to remain as a Tier 1 (General) migrant. Five days before the application was made, the Applicant’s accountants wrote to HMRC stating that, due to an error with their software, an incorrect year submission had been made to HMRC for the tax year 2011/2012, which did not reflect the Applicant’s accurate salaried earnings for that year. The difference between the actual gross salary and the salary submitted to HMRC was in the sum of £31,500 as only the earnings from two months in the tax year were accounted for. As a result, an amended tax return was filed. The application for ILR was subsequently refused under paragraph 322(5) (cited above) on the basis that there was a considerable discrepancy between the amount of salaried earnings claimed to UKVI and the amount of salaried earnings declared to HMRC.
A further application for ILR contained a letter from the Applicant’s accountants which accepted the full responsibility for the incorrect year-end submission to HMRC, attributing the issue to a ‘clerical error and software issue’, and not the Applicant’s intentions. Following another refusal by the Home Office, the matter proceeded to administrative review. The original decision by the Home Office was maintained on the premise that the Secretary of State did not have a burden to prove deception in this instance, having decided the application under paragraph 322 (5), as opposed to paragraph 322 (1A).
Submissions by both sides
The Applicant in the latest hearing referred to the recent landmark case on dishonesty, Ivey v Genting Casino Limited [2017] UKSC 67, noting that should the individual’s knowledge or belief of the facts be considered genuinely held, there is no additional requirement for the knowledge or belief to be reasonable. As such, it was submitted that the Respondent’s references to “carelessness” in the decision meant that the test for dishonesty was not met.
The Respondent asserted that the issue of whether a person’s character or conduct is questionable for the purposes of paragraph 322(5) is for the Secretary of State to determine. A judicial review of a refusal under the remit of paragraph 322(5) would be based upon whether the decision was irrational, which was not applicable in this matter. It was also argued that the decision must only be reviewed by considering the evidence that was before the decision-maker at the time of the decision. The Respondent submitted that he is entitled to refuse an application on that basis, if it is reasonably concluded that the applicant was not completely honest or transparent with either the Home Office or HMRC in relation to his income. In addition, it was submitted that it is not a defence to rely on the error of the agent or accountant.
Decision
The decisions of the Secretary of State were quashed on the basis that that they were not reached in accordance with a proper and lawful approach to fact-finding. Martin Spencer J points to the careful consideration and hesitation required when assessing whether to make a finding of dishonesty, and does not conclude decisively on whether there was dishonesty in this matter, claiming: “The evidence and arguments would have to be much clearer and stronger than they are in this case for me to be able to reach that conclusion.” The Judge reiterates that there is an “important difference between carelessness and dishonesty and the need rigorously to consider whether… ‘something’ was or was not dishonesty rather than carelessness”.
Guidance on deception cases
With specific reference to prospective cases of alleged deception, involving discrepancies between previous applications for leave to remain and tax returns from HMRC covering the same financial period, the Judge states that the Secretary of State is entitled to rely on paragraph 322(5) of the Immigration Rules, if there is no ‘plausible explanation for the discrepancy’. Should evidence be provided by the Applicant that the discrepancy was caused by negligence, rather than dishonesty, then the Secretary of State must decide whether the applicant was prima facie dishonest.
Valuable guidance is provided as to how the Secretary of State may find the distinction between ‘carelessness’ and dishonesty. In particular, Martin Spencer J states that a consideration of the evidence for each of the following points should be taken into account:
“i. Whether the explanation for the error by the accountant is plausible;
ii. Whether the documentation which can be assumed to exist (for example, correspondence between the Applicant and his accountant at the time of the tax return) has been disclosed or there is a plausible explanation for why it is missing;
iii. Why the Applicant did not realise that an error had been made because his liability to pay tax was less than he should have expected;
iv. Whether, at any stage, the Applicant has taken steps to remedy the situation and, if so, when those steps were taken and the explanation for any significant delay.”
Whilst Martin Spence J confirms that the standard of proof is the balance of probabilities, he highlights that in approaching this fact-finding task, the Secretary of State must remind themselves that a finding of deception resulting in being denied settlement is a very serious finding, with serious consequences.
The judgment also dealt with the way the Secretary of State should handle cases where alleged deception is blamed on an agent who worked on behalf of the Applicant. It is emphasised that this nature of situation is open to being probed, and cannot be relied on as a complete defence. The guidance specifically underlines the need to consider whether the Applicant has taken sufficient steps within a reasonable time-frame to remedy the situation. Should it be evident that insufficient steps were taken on the part of the Applicant, it was stated that the Secretary of State may be justified in making a finding of deceit or dishonesty on the part of the Applicant.
Where evidence is assessed by the Secretary of State to examine whether the evidence goes further than a mere assertion, documentary evidence should be required. Should documentary evidence be produced, the Secretary of State should undertake an in-depth weighing up of all the evidence, and provide the Applicant with a decision accompanied with their reasoning for the decision.
It will be interesting to see how this guidance will be applied by the Secretary of State, when assessing future applications involving potential deception.
For more information on how to challenge a decision to revoke ILR on the basis of deception, please read a previous blog post on our website, by clicking here:
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For expert advice and assistance regarding a revocation of ILR on grounds of deception, contact our immigration barristers on 0203 617 9173 or via our enquiry form below.
