Cao v Secretary of State for the Home Department

In naturalisation and related immigration applications, the Secretary of State bears the burden of establishing alleged deception. Where an applicant has supplied materially inconsistent identity information, the Secretary of State may infer intentional misleading conduct if the discrepancies were unexplained when provided. An accurate date of birth may be given significant weight in assessing identity and good character. Published policies may guide decision-making, but must not be applied mechanically or inflexibly. Fairness requires a reasonable opportunity to address adverse matters. That opportunity may arise during reconsideration, provided the applicant can explain the relevant circumstances. The court will intervene only for unfairness, irrationality, or another conventional public law error.

The claimant, a Chinese national, challenged decisions refusing her No Time Limit application and naturalisation as a British citizen. Different dates of birth had appeared in her asylum, indefinite leave to remain, No Time Limit and naturalisation applications. She maintained that the discrepancies resulted from mistakes by her solicitors and that she had lacked the English language skills to identify them.

The Secretary of State concluded that the discrepancies amounted to a deliberate attempt to mislead a government department and meant that the claimant failed the good character requirement. The issues were whether deception had been established, whether the claimant had been treated fairly, and whether the relevant policies had been applied unlawfully.

1. Application dismissed. The Secretary of State’s decisions of 1 April 2014 and 7 May 2014 disclosed no error of law.
2. The burden of proving deception rested on the Secretary of State. That burden was satisfied because the claimant had provided three different dates of birth during separate applications, without explaining the discrepancies when the information was supplied. The Secretary of State was entitled to infer that she had been intentionally misled.
3. An accurate date of birth was an important component of identity for immigration-control purposes. The Secretary of State was entitled to attach significant weight to the discrepancies, consistently with the relevant No Time Limit and good-character policies.
4. The fairness obligation required a reasonable opportunity to address matters adverse to the application. The claimant had been able to explain the discrepancies during the subsequent reconsiderations. The Secretary of State was entitled to reject those explanations and had acted fairly.
5. The policy had not been applied inflexibly or mechanically. Although the claimant’s character had to be assessed as a whole, the date-of-birth discrepancies could properly be treated as the single most important and decisive factor in the good-character assessment.
6. The decisions were neither irrational nor otherwise unlawful. The judicial review application was dismissed.

This was a first-instance judicial review. The claimant challenged the Secretary of State’s decisions upholding refusal of her No Time Limit application and naturalisation application. An earlier judicial review claim had been stayed pending reconsideration.