Hameed v The Secretary of State for the Home Department

Under paragraph 322(1A) of the Immigration Rules, refusal based on a false document does not require proof that the applicant knew of its falsity or that the applicant or another person acted dishonestly. The false document is itself dishonest. A Certificate of Sponsorship can be a document even when generated or held electronically, because it provides information and acts as an official record. If only a reference number is supplied, the decision must instead address the falsity of the representation and, where appropriate, another person’s dishonesty. The appeal was dismissed.

The appellant, a Pakistani national, entered the United Kingdom as a student and later applied for leave to remain as a Tier 2 (General) Migrant. The Secretary of State refused the application under paragraph 322(1A) of the Immigration Rules because the Certificate of Sponsorship submitted with the application was false. Administrative review accepted that the appellant had not knowingly used deception but maintained the refusal.

Judge Pitt of the Upper Tribunal refused permission to apply for judicial review. The appeal concerned whether the refusal was lawful where the appellant was unaware of the falsity, whether a Certificate of Sponsorship was a document for paragraph 322(1A), and whether the withdrawal of the deception allegation created a public-law fairness issue.

1. Appeal dismissed. The Secretary of State refused the application because the appellant had submitted a false document, not because he had personally made a false representation. The agreed facts were that the sponsoring employer supplied a hard-copy Certificate of Sponsorship bearing a reference number which was not genuine.
2. Under Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, dishonesty or deception is required for a false representation, although it need not be the applicant’s dishonesty. Where an applicant is unaware of the falsity, the Secretary of State must establish dishonesty or deception by another person. The same authority establishes that a false document is itself dishonest. Its use therefore does not require proof of dishonesty or deception by the applicant or another person. The false Certificate of Sponsorship consequently fell within paragraph 322(1A) despite the appellant’s innocence.
3. A Certificate of Sponsorship is a document in the ordinary sense, including where it exists in virtual or online form. It provides information and acts as an official record. The reference to CPR 31.4, PD 31B paragraph 1 and the sponsorship guidance supported that conclusion. The Immigration Rules are to be construed sensibly according to the natural and ordinary meaning of their words, as statements of administrative policy: Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16. The Upper Tribunal therefore made no error of law.
4. The court’s observation that a different decision would be required if only a reference number, and no document, had been supplied was unnecessary to the result. In that situation, the decision would need to address the falsity of the representation and, if it was not attributed to the applicant, the dishonesty of another person. The fairness complaint also failed because the allegation of personal deception had been withdrawn and the surviving reasons concerned the false document and failure to evidence matters required for points. There was no continuing wrong requiring a remedy.

• Court of Appeal (Civil Division): Permission to appeal was granted on 23 October 2018. The appeal was dismissed on 31 July 2019: [2019] EWCA Civ 1324.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Pitt refused permission to apply for judicial review after an oral hearing on 18 January 2018. Judge Macleman had earlier refused permission on the papers.
• Secretary of State: The application for Tier 2 (General) leave to remain was refused. Administrative review accepted that the appellant had not knowingly used deception but maintained the refusal.