FW v The Secretary of State for the Home Department

An applicant who gives an untruthful answer to a direct question in an immigration application both makes a false representation and fails to disclose the true information. Under paragraph 322(1A), the false representation need not be material and may justify mandatory refusal even if the applicant did not know it was false.

An applicant cannot answer a direct question untruthfully and then contend that the information was immaterial. An Article 8 claim requires evidence of protected private-life interests beyond a short period of lawful residence and an assertion of personal merit.

The appellant, a Kenyan national, applied for leave to remain as a Tier 1 (post-study work) migrant. The Secretary of State refused the application, in part because he answered “no” when asked whether he had any criminal convictions, despite a 2007 conviction for driving with excess alcohol.

An Immigration Judge dismissed his appeal. Following an order for reconsideration, the matter continued in the Upper Tribunal. The appellant argued that the refusal letter relied on non-disclosure rather than a false representation, that the conviction was immaterial, and that refusal disproportionately interfered with his private life under Article 8.

1. The appeal was dismissed. The Immigration Judge made no material error of law and his determination dismissing the appeal was ordered to stand.

2. The appellant’s answer to the direct question about convictions was both a false representation and a non-disclosure. A false answer to a direct question necessarily fails to disclose the information that a truthful answer would have revealed. The Tribunal recognised that a non-disclosure might occur without a false representation where an applicant simply leaves a general invitation to provide further relevant information blank, but that was not this case.

3. Under paragraph 322(1A) of the Immigration Rules, the Secretary of State was required to refuse the application. It was not open to the appellant, having answered the question untruthfully, to contend that the conviction was immaterial. The Secretary of State was entitled to take account both of the driving offence and of the appellant’s lack of candour. A person who truthfully admits an offence may therefore be treated differently from a person who falsely denies it.

4. The Tribunal also rejected the submission that an innocent false representation should not engage paragraph 322(1A). The provision expressly encompasses false representations whether or not made to the applicant’s knowledge. The material fact was that the answer in the application was untrue.

5. The Article 8 claim was entirely insubstantial. Lawful residence for a few years and an assertion of good character did not establish a protected private-life interest requiring leave to remain despite non-compliance with the immigration rules.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, held that the Immigration Judge had made no material error of law and ordered that the dismissal of the appeal stand.

• Asylum and Immigration Tribunal: An Immigration Judge dismissed the appellant’s appeal against the refusal of leave to remain. An order for reconsideration was subsequently obtained.