LI v The Secretary of State for the Home Department

For paragraph 320(7B)(d) of the Immigration Rules, deception requires the applicant to know that a false document was submitted. Dishonesty by an agent or document-maker alone is insufficient. The false-document approach under paragraphs 320(7A) and 322(IA), where applicant knowledge is not required, must be kept distinct. On judicial review, the question is whether no reasonable decision-maker, applying the ordinary civil standard, could have found knowing submission. The Secretary of State was entitled to draw that conclusion from the evidence. Previous deception need not be material to a later application: the wording of paragraph 6 and paragraph 320(7B) makes that clear.

The appellant, a Chinese national, sought entry clearance as a Tier 1 (Investor) migrant. Earlier applications had been refused after the Secretary of State concluded that documents submitted concerning her son were false. A later application was refused under paragraphs 245EB and 320(7B) of the Immigration Rules.

Upper Tribunal Judge Craig refused permission to apply for judicial review. The appellant appealed, arguing that paragraph 320(7B)(d) did not apply where any deception was committed by a third party without her knowledge, and that previous deception had to be material to the later application. The central issues were the meaning of deception and the standard of review applicable to the Secretary of State’s finding.

The Senior President, with Lord Justice Sales agreeing, dismissed the appeal. Permission to appeal on the second ground was refused.

1. Meaning of deception. The parties accepted that Judge Craig had wrongly interpreted paragraph 320(7B)(d) as applying whenever the maker of a document acted dishonestly. The court distinguished the false-document provisions considered in AA (Nigeria), which concerned paragraphs 320(7A) and 322(IA). In that context, a document could be false because it was dishonest in itself, even if the applicant used it innocently. Paragraph 6 must instead be read with paragraph 320(7B)(d). For that provision, an applicant submits a false document deceptively only if the applicant knows that it is false.
2. Review of the finding. The applicable question was whether the refusals were unlawful because no reasonable decision-maker could have been satisfied, to the ordinary civil standard, that the appellant had used deception. The Secretary of State was entitled to conclude on the balance of probabilities that she knowingly submitted false documents. Relevant matters included inconsistent accounts of who obtained the documents, identical issue dates on birth certificates issued years apart, the failure to explain the false hospital letter or directly address earlier findings, and the payment of a substantial sum to an agent for a document obtainable cheaply from the issuing authority. The conclusion was patently open to the decision-maker.
3. Materiality. The wording of paragraph 6 expressly covers deception whether or not material to the application. Paragraph 320(7B) concerns what an applicant has done previously and imposes no requirement that the earlier deception materially affect the later application. The provision was intended to deter manipulation of immigration control. The second ground had no real prospect of success and did not raise an important principle of law.
4. The court declined to determine the separate argument concerning paragraph 320(7B)(c), because it had not received full argument from both parties on that issue. The appellant also accepted that the refusal under paragraph 245EB could not be challenged.

• Court of Appeal (Civil Division): dismissed the appeal against the Upper Tribunal’s refusal of permission to apply for judicial review and refused permission to appeal on the second ground.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Craig refused permission to apply for judicial review.