Yalian Shen v The Secretary of State for the Home Department

For refusal under paragraph 322 of the Immigration Rules, information is not “false” merely because it is inaccurate. It must be dishonestly false. A materially false application may provide prima facie evidence of dishonesty, but an appellant may give an innocent explanation.

If that explanation reaches a basic level of plausibility, the evidential burden returns to the Secretary of State. The Secretary of State retains the ultimate burden of proving dishonesty. In a paper appeal, unchallenged and plausible evidence should not found a finding of dishonesty. A tribunal with unresolved doubts should consider directions for evidence or an oral hearing, rather than resolve the doubt adversely without a proper evidential basis.

The appellant applied for leave to remain as a Tier 4 student. The Secretary of State refused the application because she had not disclosed driving convictions when completing the application form, and treated the omission as deception.

The appellant appealed on paper to the First-tier Tribunal. She explained that, after moving address, she believed that the police had taken no further action and did not know that she had been convicted. The Secretary of State did not challenge that account. The First-tier Tribunal nevertheless dismissed the appeal, finding that the appellant had not been entirely honest.

The appellant appealed to the Upper Tribunal. The central issue was whether the unchallenged evidence and the false answer on the form justified a finding of dishonesty.

1. Appeal allowed. The First-tier Tribunal had made a material error of law. Its decision was set aside and the Upper Tribunal remade the decision by allowing the appeal.

2. Under paragraph 322 of the Immigration Rules, a false representation must be dishonestly false. The First-tier Tribunal neither identified nor applied that requirement. The appellant’s answer was inaccurate, but her unchallenged account, if accepted, showed that she did not know of the convictions and therefore supplied a good-faith explanation.

3. A materially false form may amount to prima facie evidence assisting an allegation of dishonesty. The inference may be strengthened by surrounding facts, such as a conviction close in time to the application. It remains open to an appellant to give an innocent explanation. Once such an explanation is basically plausible, the Secretary of State must answer it; the Secretary of State bears the ultimate burden of proving dishonesty.

4. The First-tier Tribunal acted unfairly in treating the absence of documentary proof of the appellant’s address notification as adverse to her when the Secretary of State had not challenged her evidence or put her to proof. The respondent’s practice of not engaging with paper appeals did not relieve her of the burden of proof.

5. In a paper appeal, a tribunal should be slow to find dishonesty on unchallenged plausible evidence. If it has doubts, it should consider directions under rules 45 or 51 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, an oral hearing, or allowing the appeal and leaving the Secretary of State to take a fresh lawful decision.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s determination, and remade the decision by allowing the appellant’s appeal.
• First-tier Tribunal: by a determination dated 12 February 2014, dismissed the appellant’s paper appeal against the Secretary of State’s refusal of her Tier 4 application.
• Secretary of State: on 18 September 2013, refused leave to remain under the Immigration Rules on the basis of undisclosed driving convictions.