Kulasekara v Secretary of State for the Home Department

For paragraph 322(1A) of the Immigration Rules (HC 395), a representation or document is false only where it was deliberately made or supplied as false. An innocent error does not engage the rule. The respondent must establish deliberate deception on the balance of probabilities, supported by evidence of sufficient strength and quality. A tribunal’s determination must be read as a whole, and an apparently tentative phrase will not invalidate a clear finding reached on the evidence.

The appellant, a Sri Lankan citizen, applied for leave to remain as a Tier 1 (General) Migrant. The application was refused because he had previously relied on a Cambridge College of Learning postgraduate diploma and academic transcript which the Secretary of State alleged were false. Immigration Judge Callender-Smith initially allowed the appeal. On reconsideration, Senior Immigration Judge Jarvis heard the evidence afresh and dismissed the appeal under the Immigration Rules and Article 8. The appeal to the Court of Appeal was confined to the Immigration Rules. The central issues were whether there was sufficient evidence of deliberate deception and whether the Senior Immigration Judge had given adequate reasons.

The appeal was dismissed unanimously. Lord Justice Stanley Burnton gave the judgment, with Lord Justice Tomlinson and Lord Justice Longmore agreeing.

1. Construction of paragraph 322(1A). The Court followed the construction of the rule in AA (Nigeria) [2010] EWCA Civ 773. The word false requires deliberate falsity. The applicant must have deliberately made or supplied the representation or information knowing it to be false. The rule does not apply to an innocent representation or document.
2. Evidence and standard of proof. The respondent bore the burden of proving deliberate misrepresentation on the balance of probabilities. The evidence had to be of sufficient strength and quality and had to receive critical, anxious and heightened scrutiny. The Senior Immigration Judge was entitled to rely on the oral evidence, witness statements, documents and the absence of supporting documentation that would ordinarily have been expected. If the appellant had not undertaken the course or passed the examinations, his representation that he had done so was necessarily deliberate.
3. Reasons read as a whole. The Senior Immigration Judge’s reference to the diploma being not likely to be genuine could not be isolated from the rest of the determination. She had reminded herself of the applicable burden of proof and concluded unequivocally that the appellant had used deception. Her reasons were adequate.
4. Use of earlier evidence. It was open and appropriate for the Senior Immigration Judge to rely on the witness statement of Miss Ullah and the findings in NA and others (Cambridge College of Learning) [2009] UKAIT 00031, where the evidence had already been given and tested. The Court stated, as broader guidance, that a request to require such a witness to attend for further cross-examination should be deprecated unless specific matters had not previously been investigated.

1. Court of Appeal (Civil Division): On 18 February 2011, dismissed the appeal from the Upper Tribunal’s determination.
2. Upper Tribunal (Immigration and Asylum Chamber): Senior Immigration Judge Jarvis heard the appeal afresh on reconsideration and dismissed it under the Immigration Rules and Article 8. The determination was promulgated on 10 March 2010.
3. Earlier appeal: Immigration Judge Callender-Smith allowed the appellant’s appeal. The Secretary of State obtained an order for reconsideration.