Harinder Singh v Entry Clearance Officer - New Delhi

For a refusal under paragraph 320(7A) of the Immigration Rules, the respondent bears the burden of proving the alleged false representation or omission on the balance of probabilities. Where the allegation depends upon service of immigration forms, the respondent must prove which form or forms were served. Copies, service records or evidence from the serving officer may suffice, but an uncorroborated assertion by an Entry Clearance Officer will usually not.

Form IS151A notifies a person of liability to removal and detention. It does not itself require departure from the United Kingdom. A form that makes a removal decision, such as IS151B, may impose that requirement. The precise form served is therefore material when an applicant is alleged falsely to have denied having been required to leave the United Kingdom.

The appellant, an Indian national, applied for entry clearance as a domestic worker. The Entry Clearance Officer refused the application under paragraph 320(7A) of the Immigration Rules, alleging false answers in the visa application form. The First-tier Tribunal dismissed the appeal on that basis, although it found that paragraph 320(7B) did not bar the application and that the substantive domestic-worker requirements were met.

The appellant had overstayed after the dismissal of an earlier in-country immigration appeal and left voluntarily in April 2009. Both parties accepted that, while departing from Heathrow, he was served with Form IS151A. The central issue was whether the respondent had proved that he had also been served with a form requiring him to leave the United Kingdom, such that his negative answer to the relevant visa-form question was false.

1. Appeal allowed. The First-tier Tribunal erred in law by upholding the refusal under paragraph 320(7A) of the Immigration Rules. Its decision was set aside and remade.

2. The respondent bore the burden of establishing, on the balance of probabilities, the facts necessary for a refusal under paragraph 320(7A). Since the alleged dishonesty depended on service of immigration documents, the respondent had to prove service of the particular document or documents relied upon.

3. The respondent proved only that Form IS151A had been served. That form notified the appellant of liability to removal and detention under section 10 of the Immigration and Asylum Act 1999; it did not require him to leave the United Kingdom. Form IS151B contained the operative requirement to leave, but there was no evidence that it, or Form IS151A Part 2, had been served.

4. The Entry Clearance Officer's unsupported assertion that the appellant had been issued with IS151A and an administrative-removal document did not discharge that burden. There were no copies of the forms, service records, source details, or first-hand evidence from the immigration officers. The respondent's own guidance contemplated a record of service. A bare assertion might not be adequate, particularly given the serious consequences of a paragraph 320 refusal.

5. The appellant had therefore not falsely answered that he had never otherwise been required to leave the United Kingdom. The Tribunal also considered that the First-tier Tribunal had applied an excessively harsh approach to the answer concerning the earlier application to remain: the form did not specify what details were required, and the appellant supplied both a Home Office reference and the application date.

6. Paragraph 320(7B) did not prevent entry clearance because the appellant had left voluntarily, without expense to the Secretary of State, more than 12 months earlier. The appeal was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal's decision, and remade it in the appellant's favour.
• First-tier Tribunal: dismissed the appeal in a determination promulgated on 21 June 2011. It upheld refusal under paragraph 320(7A) of the Immigration Rules, but found paragraph 320(7B) inapplicable and accepted that the substantive domestic-worker requirements were met.