Kelly, R (on the application of) v Secretary of State for the Home Department

In a judicial review concerning removal for deception, the Secretary of State bears the burden of proving deception. The court must assess the evidence itself in a supervisory capacity and must reach a high degree of satisfaction where the allegation is serious and affects personal liberty. The civil standard applies, with the required degree of probability depending on the subject matter. The material date for deciding whether deception was used to obtain indefinite leave to remain is ordinarily the date of the application. A later failure to notify the Home Office of changed circumstances may constitute deception, but does not necessarily do so without a deliberate attempt to mislead.

The claimant, a Jamaican national, challenged directions issued under section 10 of the Immigration and Asylum Act 1999 for his removal to Jamaica. He had obtained indefinite leave to remain on the basis of his marriage, but the Secretary of State later concluded that he had falsely represented that the marriage was subsisting and that both parties intended to live permanently together.

The central issue was whether deception had been used when the application for indefinite leave to remain was made on 1 March 2001. The court considered the evidence concerning the relationship, the claimant’s differing accounts, and statements made to his solicitors and immigration officials.

1. The application was dismissed. The claimant had used deception in obtaining indefinite leave to remain, and the removal directions were therefore lawful.
2. Under the principles stated in Khawaja [1984] 1 AC 74, the burden rested on the Secretary of State. The court’s role was supervisory but required it to assess the quality of the evidence and decide whether it justified the conclusion that leave had been obtained by fraud or deceit. Because the allegation was serious and involved personal liberty, a corresponding high degree of satisfaction was required. The applicable standard remained the civil standard, understood as allowing different degrees of probability according to the subject matter.
3. The relevant date was the date of the application for indefinite leave, namely 1 March 2001. The later application form declaration did not make every failure to notify the Home Office of a material change deceptive. Deception required a deliberate attempt to mislead, rather than mere oversight, lack of understanding or a similar failure.
4. The requirements in rule 287 of the Immigration Rules required the claimant still to be the spouse of the person he had joined and the marriage to be subsisting, with both parties intending to live permanently together. The court concluded, to the required high degree of probability, that those requirements were not truthfully satisfied when the application was made.
5. The evidence was assessed cumulatively. Particular weight was given to the instructions supplied to the claimant’s original solicitors, his spontaneous reference to a relationship lasting over three years, and the inconsistencies in his various accounts. The claimant’s explanation that stress and imperfect recollection caused the discrepancies was rejected.
6. Costs followed the event. The Secretary of State was awarded the costs of defending the application.