UK: Even More Deceptively Simple

Last Updated: 8 November 2010
Article by Miranda Sirikanda

This article considers the position where an application for leave to enter or remain in the United Kingdom may fail under the second limb of para 322(1A) of the Immigration Rules:

(1A) where ... material facts have not been disclosed, in relation to the application.

The introduction of new mandatory grounds for refusal has been a controversial area in immigration law, particularly because of the harsh construction which the courts have previously applied. The increasing length, detail and complexity of immigration application forms, has led inevitably to an increase in the number of applications rejected on the basis of incomplete information provided. Employers and skilled migrants should take exceptional care to avoid these pitfalls, and the protracted litigation which can follow.

Current authority

The Tribunal in FW (Paragraph 322 untruthful answer) Kenya UKUT [2010] 165 (IAC) considered the second limb of Paragraph 322 (1A) of the immigration rules, which is engaged when an Applicant fails to disclose a material fact in an Application.  The Court of Appeal in AA Nigeria  [2010] EWCA Civ 733 found that a false representation must involve an element of deceit, whether by the Applicant themselves or a third party acting on their behalf (see our previous article LINK). Whilst the Court in AA did not expressly consider the second limb, the reasoning which underpinned the Court's decision will, arguably, be equally relevant to cases of non disclosure.  In this article we explore whether a finding of dishonest intent will be a pre requisite a finding that a material fact has not been disclosed. It should be noted that the decision in the Court of Appeal in AA was promulgated after the decision in FW, and the Upper Tribunal may have reached a different decision had the authority if AA been available to them.

The question then arises, what is actually material to an Application?  The Upper Tribunal adopted a broad brush approach to the issue when the Appellant before them was found to have deliberately withheld convictions for driving with excess alcohol, in a mandatory field of an application form for an extension of leave to remain. 

It is not for a person who has untruthfully answered a direct question in an application form to assert that the answer was not material in any event.  If it was not material, it is difficult to see why the question should have been asked.  There is no basis on which it can be said that in making a decision whether to grant leave in this category the Secretary of State was obliged to condone an offence of driving with excess alcohol; 

Criticisms of this approach

(i) Policy considerations

It can be argued that this approach is unsatisfactory and lacks the necessary discrimination coined in the term "material".  The Immigration Directorate Instructions (IDIs), Chapter 9, section 4.9.1, provide a useful case study illustrating an alternative definition of "material".

4.9.1 Scenario 2: Example of withheld information relevant to the decision

A person who has submitted an application for Indefinite Leave to Remain as a spouse has not declared they are in receipt of Child Benefit.  Investigations reveal they are in receipt of child benefit.

On the Upper Tribunal's analysis, this application should fail simply as a consequence of the question at section 7.6 of FORM SET (M), which asks whether the Applicant or their partner are claiming specific benefits. One of those listed is Child Benefit.  Surely, this question would not be asked if it was not material?  The IDIs disagree.

Investigations reveal they are in receipt of Child Benefit but this is legitimate because they fall under one of the exceptions to "no recourse to public funds"

The Application cannot be refused under paragraph 322 (1A) because, had the applicant disclosed the fact they are receiving Child Benefit it would not have led to their application being refused.   

Returning to the original wording of the rule, the first limb contemplates the existence of material and non material false representations by use of the words "whether or not material to the application". A representation will surely take the form of an answer to a question on an application form.  By the Upper Tribunal's reasoning, immaterial representations would be non existent as all responses to mandatory fields on the application form would be material representations. However, this would render the sub paragraph's distinction in its treatment of a false representation and non disclosure meaningless.

It is therefore contended that a more suitable test of materiality, endorsed by the IDIs, can be put in the following question: If the withheld information had been disclosed, would this have led to the application being refused?  If the answer to that question is no then the information was not material to the application.

(ii) Good Character

The Upper Tribunal  appear to have had the nature of the Appellant's offence -  driving while under the influence of excess alcohol - at the forefront of its consideration of his failure to disclose a past conviction.  However, the general grounds for refusal in the Immigration Rules arguably provide ample scope for consideration of past criminality, where the appropriate level of severity is met.

Paragraph 245ZX(A) of the Immigration Rules states:

The applicant must not fall for refusal under the general grounds for refusal and must not be an illegal entrant

These are listed at paragraph 322 (2) – (11).

It is submitted that subsections (2) and (5) are prima facie the only subsections which are related to the Appellant's conviction.  Subsection (2) repeats the Mandatory Ground for Refusal set at out at paragraph    322 (1A):

(5)the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his character, conduct or associations or the fact that he represents a threat to national security;

Subsection (5) of paragraph 322 is considered at Chapter 9 Section 4 A of the IDIs, March 2009. This examines the threshold of seriousness which previous convictions should meet before a further grant of leave is refused.  However, the burden of proof when relying on para 245X(a) rests on the Respondent.  Therefore, it is for him to state in terms that this ground is relied on and explain why the Appellant would fall within subsection (5) of paragraph 322. This would also be a way for the Respondent to establish materiality for the purpose of paragraph 322 (1A): If this offence been disclosed it would have led to the Application not succeeding under the Immigration Rules.  

In the case before the Tribunal in FW, subsection (5) of paragraph 322  was not relied upon by the Respondent and, therefore, the Tribunal's decision rested on a questionable interpretation of materiality turning on the information appertaining to a mandatory field of an application form. 

(iii) Dishonesty

The Upper Tribunal found that the Appellant before it had deliberately withheld his previous conviction, and therefore practiced deception in his application.  The tribunal considered this the exercise of deception was, in and of itself, a matter for the Secretary of State to weigh into the balance in an assessment of whether or not  material facts had been disclosed. In particular it found that:

It may be therefore that a person who honestly admits an offence may be granted leave, whereas a person who untruthfully denies the same offence is properly refused leave. 

The wording of the rule specifically refers to material facts not disclosed It would be strange to argue that one of the material facts not disclosed was that the Applicant was practicing deception in their application. Deception is the motive behind the non disclosure of material facts, not a fact in and of itself. Moreover the exercise of deception will carry its own repercussions within the framework of the Rules, if the applicant is required to leave the UK and subsequently seeks entry clearance to re enter. 

Article 8 issues

If the Upper Tribunal's definition of materiality is upheld, the Tribunal applying Paragraph 322 (1A),  would still need to be mindful of the grave consequences which could follow under paragraph 320 (7B) including  a ten year bar on applying for entry clearance.

In private life cases, it will be important to adopt a careful analysis of the seriousness of the non disclosure to the Application and set this against the interference which will follow for the applicant, if he is removed and prevented from re entering the UK for ten years. Moreover, it has been argued here that there is an absence of adequate discrimination in the Upper Tribunal interpretation of the word "material". If this point is arguable, then where an applicant withholds information which would otherwise not have been fatal to the application, the question of whether their removal will be pursuant to the maintenance of effective Immigration Control remains open.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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