Wahid, R (On the Application Of) v Entry Clearance Officer

When an entry clearance officer proposes to find that an applicant acted dishonestly, it is arguable that procedural fairness requires an opportunity to respond before the decision is made. The requirements of fairness depend on the facts, the consequences of the decision and the legal and administrative context. A finding of dishonesty remains a serious finding about character even where the application concerns only a short visit and a further application can be made.

For the purposes of paragraph V3.6 of Appendix V to the Immigration Rules, a false representation involves dishonesty rather than mere inaccuracy. Non-disclosure alone does not establish deceit. A refusal may therefore be arguably irrational where the reasoning appears to move from an unexplained omission to dishonesty without adequately addressing the applicant’s state of mind.

The applicant sought entry clearance as a visitor. He disclosed an earlier driving conviction but did not disclose a police caution which records indicated had followed an airport incident. He maintained that he had never known that a caution had been administered. The Entry Clearance Officer concluded that the omission was intentional and refused the application under paragraph V3.6 of Appendix V to the Immigration Rules for false representations and deception.

The applicant sought judicial review on grounds of procedural unfairness and irrationality. Upper Tribunal Judge Kekic initially refused permission. On renewal, Upper Tribunal Judge Frances also refused permission, holding that an interview or minded-to-refuse letter would not have altered the factual position and that the applicant’s alleged ignorance of the caution was immaterial.

The Court of Appeal considered whether the claim had a real prospect of establishing that the applicant should have been permitted to answer the allegation of dishonesty, and whether the finding of deception was irrational.

1. Appeal allowed unanimously; permission to apply for judicial review granted. The Upper Tribunal Judge was wrong to conclude that the claim had no real prospect of success. Both procedural unfairness and irrationality were arguable. The Court did not finally determine either ground.

2. Paragraph V3.6 of Appendix V to the Immigration Rules distinguishes false representations from non-disclosure of material facts. As explained in Adedoyin v Secretary of State for the Home Department [2010] EWCA 773, “false” in this context denotes dishonesty, not mere inaccuracy. A representation must be deceitful, and mere non-disclosure does not suffice.

3. The Upper Tribunal Judge approached fairness from the wrong perspective by treating the applicant’s claimed ignorance of the caution as immaterial. The relevant issue included his state of mind and honesty. Procedural fairness depends on the facts and context, including the nature of the applicable legal and administrative system, consistently with R v Secretary of State for the Home Department, ex parte Doody [1994] AC 531 and Taj [2021] EWCA Civ 19.

4. It was arguable that an entry clearance applicant must be given an opportunity to respond where the decision-maker harbours suspicions of dishonesty. The circumstances differed materially from Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673: the present application concerned a short visitor visa, refusal did not alter an existing immigration status, and the applicant could apply again. Nevertheless, Balajigari also recognised that dishonesty is a particularly serious finding about character. Whether its procedural safeguards extend to entry clearance required full argument.

5. The irrationality ground was also arguable. The refusal letter could possibly be read as recording the absence of a plausible innocent explanation for disclosing the conviction but omitting the caution. However, its reasoning could also be challenged as an unjustified progression from uncertainty about the omission to a finding of deliberate concealment. That issue overlapped with the unresolved fairness question.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and permission to apply for judicial review was granted: [2021] EWCA Civ 346.

2. Upper Tribunal: Upper Tribunal Judge Frances refused the renewed application for permission on 29 June 2020, holding that the proposed claim was not arguably unlawful, irrational or procedurally unfair.

3. Upper Tribunal: Upper Tribunal Judge Kekic initially refused permission on 21 April 2020, with the decision sent to the parties on 7 May 2020.