Farqan Ahmed v The Secretary of State for the Home Department

A mandatory refusal under paragraph 322(1A) of the Immigration Rules requires deception. This applies equally to false representations, false documents or information, and a failure to disclose material facts.

Accordingly, an innocent mistake in an application form does not constitute a material non-disclosure for that purpose. Where an incorrect answer to a direct question is both a false representation and a non-disclosure, it would be illogical and unfair to require dishonesty for the former but not the latter.

The appellant, a Pakistani student, applied in time for further leave to remain under the points-based system. He answered “No” to a question asking whether he had criminal convictions, although he had received a magistrates’ court fine for travelling without paying a rail fare.

The Secretary of State refused the application under paragraphs 245ZX(a) and 322(1A) of the Immigration Rules. The First-tier Tribunal found that the appellant had made an honest mistake, but dismissed the appeal because the undisclosed conviction was material.

The appeal to the Upper Tribunal concerned whether material non-disclosure under paragraph 322(1A) requires dishonesty, as false representations do.

1. Appeal allowed. The First-tier Tribunal made an error of law by treating the appellant’s honest state of mind as irrelevant to material non-disclosure. Its determination was set aside.

2. Paragraph 322(1A) must be read in the context of the defined term Deception in paragraph 6 of the Immigration Rules. That definition includes both making false representations and failing to disclose material facts. The requirement for dishonesty recognised for false representations in Adedoyin (AA (Nigeria)) [2010] EWCA Civ 773 therefore applies also to material non-disclosure.

3. The construction was reinforced by the related rules, which treat all forms of conduct in paragraph 322(1A) as deception. A contrary construction could impose severe re-entry consequences upon an applicant who had made a wholly inadvertent error. That would detach the defined term from its ordinary meaning.

4. The Tribunal adopted the reasoning in FW (Paragraph 322; untruthful answer) Kenya [2010] UKUT 165 (IAC) that an untruthful answer to a direct question can be both a false representation and a non-disclosure. The earlier view that an honest mistake was immaterial had been corrected by the Court of Appeal. The subsequent decision in FW [2011] EWCA Civ 264 did not determine the correct treatment of material non-disclosure and was compatible with this conclusion.

5. As the appellant had sufficient points and had not acted dishonestly, the general grounds for refusal did not apply. The appeal was allowed under the Immigration Rules.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s determination for error of law, and remade the decision.

• First-tier Tribunal: Dismissed the appeal after finding that the appellant had not been dishonest but that he had failed to disclose a material fact.