Case No. UKUT-00133-(IAC)

[2017] EWHC 78 (Admin)). 83. In Giri, at [38], Richards LJ accepted that it was for the respondent to satisfy the court that she had discharged the burden of proof on the balance of probabilities. Further, in the context of such a case, the respondent should furnish evidence of “sufficient strength and quality” and the respondent (and the Tribunal) should subject such material to “critical” and “anxious” scrutiny. In Balajigari, which concerned paragraph 322(5) of the Immigration Rules, Underhill LJ stated (at [37(2)]) that the rule "is only concerned with conduct of a serious character". The standard of proof is the balance of probabilities but that is to be exercised "bearing in mind the serious nature of the allegation and the serious consequences which follow…" [43].84. We are satisfied that the respondent was entitled to conclude that evidence of sufficient strength and quality had been adduced to raise the issue of dishonesty. In both his application form and his 1st interview, and at the start of his 2nd interview, the applicant stated that he had no family in the UK. This was not correct. This clear inconsistency in the information provided by the applicant was unarguably sufficient to raise the issue of dishonesty.85. The explanation given by the applicant in his 2nd interview was based on his misunderstanding of the questions put to him in his 1st interview and the application form. He believed that the questions concerning whether he had family in the UK only related to his intended geographical location in the UK. The applicant also claimed that his misunderstanding arose because English was not his first language. In his Administrative Review application the applicant offered a further explanation; that ‘the guideline’ in respect of the application form did not mention siblings as family and the applicant did not therefore consider his sister to fall within the definition of family.86. We now consider whether the respondent was rationally and lawfully entitled to reject the explanations offered by the applicant and whether, in so doing, she applied the principles set out above at paragraphs 82 and 83 above. 87. In the 1st decision the respondent accurately set out the requirements of paragraph 320(7A) before identifying the inconsistency in the information provided by the applicant. The respondent summarised and then engaged with the applicant’s explanation. The respondent was not satisfied that the applicant misunderstood the questions in the application form or in his first 1st interview because both questions were framed by reference to the UK and not to Southampton. The respondent was not satisfied that the inconsistencies could be attributed to the applicant’s proficiency in English because the applicant was due to commence a course of study that was conducted in English and because, at the end of the 1st interview, the applicant stated that he understood all the questions. It was additionally noted that the applicant maintained that he had no family in the UK at the commencement of his 2nd interview. The respondent was not satisfied that there had been an innocent misunderstanding and then concluded that the applicant intentionally failed to declare a material fact. 88. We can discern no unlawfulness in the respondent’s assessment. The respondent took into account the information before her and actively engaged with the explanation proffered by the applicant. There is nothing in the decision to support the contention that the respondent failed to apply paragraph 320(7A) with the requisite anxious scrutiny, or that she was not aware that the burden of proof rested on her. There was no requirement for the respondent to expressly refer to her own published guidance on ‘False Representations’, and the fact that the respondent did consider whether the inconsistency could be an innocent misunderstanding suggests that she was mindful of and applied that guidance. 89. In his Administrative Review application, the applicant additionally claimed that he relied on the “guideline” when completing his application and that the guideline did not include siblings, and he did not therefore consider that siblings counted as family. 90. Much of Mr Turner’s submissions before us related to advice given to the applicant by an agent to the effect that a sibling did not count as ‘family’ for the purposes of the student application. This explanation was however first advanced in the applicant’s Pre-Action-Protocol Letter. It was not before the respondent, and the respondent cannot therefore be criticised for not considering it. Having found that our jurisdiction is supervisory and that there is no precedent fact issue, we are not permitted to take into account the explanation first advanced in the Pre-Action-Protocol Letter. 91. Mr Turner nevertheless contended that, as asserted in the applicant’s Administrative Review application, “the guideline” that he considered when he completed his application did not mention siblings when addressing the existence of ‘family’ in the UK. It is pertinent to note that the applicant did not refer to any other guidance or any other Immigration Rule. The Administrative Review application read, in material part:“First of all, the ECO has referred the visa application form where I did not include my family details such as my sister. However, on the application form the question is if I have family in the UK and in the guideline it says that in family it includes immediate family such as spouse, civil partner, parents or children, grandparents or grandchildren, spouse or civil partner’s family, child’s spouse, civil partner or partner, my partner if I have lived with them for 2 out of the last 3 years. This guideline clearly shows that there is no mention of siblings and it is not considered to be family.”92. The application form completed by the applicant, as detailed in Mr Ouseley’s statement, read: