Ijeoma Glory Omenma v The Secretary of State for the Home Department

A conviction resulting in an absolute or conditional discharge is, by section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000, deemed not to be a conviction except for the specified proceedings. A person who answers “no” to a question whether they have been convicted of an offence therefore makes no false representation.

Accordingly, refusal under paragraph 322(1A) of the Immigration Rules cannot rest on the non-disclosure of such a discharge in response to a question framed solely in terms of convictions. A differently framed question, such as whether the person has been found guilty, may raise a different issue.

The appellant had pleaded guilty to four shoplifting offences and received conditional discharges. In an application for leave to remain as the partner of a Tier 1 Migrant, she answered “no” to a question asking whether she had been convicted of a criminal offence.

The Secretary of State refused the application under paragraph 322(1A) of the Immigration Rules for false representations and deception. The First-tier Tribunal dismissed her appeal, finding that she had dishonestly concealed the offences. The Secretary of State later withdrew the refusal, but the appellant maintained her appeal. The central issue was whether a conditional discharge required disclosure in answer to a question about convictions.

1. Appeal allowed. The withdrawal of the Secretary of State’s decision did not deprive the Upper Tribunal of jurisdiction to determine whether the First-tier Tribunal had made an error of law. The Tribunal therefore proceeded to decide the appeal.

2. Section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 provides that a conviction for which an absolute or conditional discharge is made is deemed not to be a conviction, save for the proceedings specified in the provision. The application form asked only whether the appellant had been convicted of an offence.

3. Applying R v Patel (Rupal) [2007] 1 Cr App R 12 (CA), the appellant was entitled to answer “no”. Her answer was correct and could not be dishonest. It followed that the sole basis for refusal under paragraph 322(1A) was unlawful.

4. The Tribunal set aside the First-tier Tribunal’s decision for error of law, re-made the decision, and allowed the appeal. It directed that the appellant be granted the leave sought.

5. The Tribunal added, obiter, that a question whether an applicant had been found guilty might have a different answer. It also left open the proper test for dishonesty in this immigration context, including whether the criminal-law test in R v Ghosh [1982] EWCA Crim 2 applies under the civil standard of proof.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and directed that leave be granted.
• First-tier Tribunal: Dismissed the appellant’s appeal in a determination promulgated on 13 September 2013.
• Secretary of State: Withdrew the refusal decision on 15 April 2014, while the appeal remained before the Upper Tribunal.