FW v Secretary of State for the Home Department

For paragraph 322(1A) of the Immigration Rules, an answer is a false representation only where it is made dishonestly. The civil standard of proof applies. The seriousness of an allegation may affect the cogency of evidence required, but it does not create a different standard of proof. A tribunal may infer dishonesty from the surrounding evidence, including the applicant’s understanding of the form, accompanying guidance and the plausibility of the explanation given. Where an applicant knowingly makes a false statement, the materiality of the undisclosed fact is irrelevant to refusal under paragraph 322(1A).

The appellant, who had entered the United Kingdom as a student, applied for further leave to remain as a Tier 1 (Post Study Work) Migrant. He answered “No” to a question asking whether he had any criminal convictions, although he had recently been convicted of driving with excess alcohol and disqualified from driving.

The Secretary of State refused the application under paragraph 322(1A) of the Immigration Rules. The Asylum and Immigration Tribunal dismissed the appeal, finding that the answer was deliberately false. The Upper Tribunal upheld that decision. The appeal concerned whether the refusal relied on false representation or non-disclosure, the meaning of “false”, the materiality of the conviction, and whether the finding of dishonesty was perverse.

1. Appeal dismissed. The Upper Tribunal was correct to hold that the AIT had made no material error of law.
2. The Secretary of State’s refusal letter relied on both aspects of the answer to Question E1: it was a false statement and it failed to disclose a material fact. The reference to deception showed that dishonesty was relied upon. The appellant had also placed his own honesty in issue before the AIT.
3. Following Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, “false” in paragraph 322(1A) means dishonestly false, rather than merely untrue. The Upper Tribunal’s contrary observation that an innocent false statement could justify refusal was therefore wrong, but that error was immaterial because the AIT found that the appellant had answered dishonestly.
4. The AIT was entitled to apply the balance of probabilities. As explained in Re B [2008] UKHL 35, that standard applies in civil proceedings. The nature of an allegation may require more cogent evidence before a tribunal is satisfied, but this concerns the sufficiency of evidence, not the applicable standard.
5. The recent conviction, the guidance accompanying the form, the appellant’s comprehension and his implausible explanation provided sufficient evidence for the finding of dishonesty. Once the knowing false statement was established, the conviction’s materiality became irrelevant and refusal under paragraph 322(1A) was proper.

• Upper Tribunal (Immigration and Asylum Chamber): on reconsideration, held that the AIT had made no error of law and dismissed the challenge; decision promulgated 12 May 2010.
• Court of Appeal (Civil Division): dismissed the appeal and upheld the Upper Tribunal’s conclusion.