Case No. UKUT-00133-(IAC)

cation of Ashrafuzzaman) v Entry Clearance Officer(precedent fact; general grounds refusal) Heard remotely at Field HouseTHE IMMIGRATION ACTSPromulgated on 4 April 2022BeforeUPPER TRIBUNAL JUDGE BLUMUPPER TRIBUNAL JUDGE McWILLIAMBetweenTHE QUEENon the Application ofASHRAFUZZAMAN(ANONYMITY DIRECTION NOT MADE)ApplicantandENTRY CLEARANCE OFFICERRespondentRepresentation:For the applicant: Mr P Turner, counsel instructed by Hubers LawFor the respondent: Ms J Anderson, counsel instructed by the Government Legal DepartmentThe issue of dishonesty in a judicial review challenging a decision taken under paragraph 320(7A) of the Immigration Rules is not one of precedent fact.In a judicial review challenge the jurisdiction of the Tribunal to determine an issue of dishonesty for itself arising from a decision taken under the general grounds of refusal in the Immigration Rules is dependent on the engagement of an ECHR right.JUDGMENTBackground1.The applicant, a male national of Bangladesh born on 27 September 1997, challenges:(i)the respondent’s decision made on 6 February 2020 refusing him entry clearance as a Tier 4 (Student) Migrant (“the 1st decision”), and(ii)the Administrative Review decision dated 14 February 2020 upholding the 1st decision (“the 2nd decision”). 2.On 26 December 2019 the applicant applied for entry clearance as a Tier 4 (General) Student. The online application form included a section headed ‘Family in the UK’. Under this heading the applicant was asked,“Do you have any family in the UK?”3.To this question the applicant answered “No”.4.A declaration at the end of the online application form stated that, by sending the application, the applicant confirmed to the best of his knowledge and belief that the information relating to the application and the supporting evidence was correct.5.The applicant underwent an entry clearance interview on 31 December 2019. This interview was conducted in English. There was no indication on the face of the interview record that the applicant had any difficulties in understanding the questions asked or in giving his answers. At question 17 of the interview the applicant was asked,“Do you have any friends or family in the UK?”6.To this question the applicant answered,“No family. No friends.”7.His application was granted on 24 January 2020. On 31 January 2020 the applicant was asked questions by an Immigration Liaison Officer at Sylhet airport prior to boarding his plane to the UK. There is no contemporaneous record of the conversation and the details of the applicant’s conversation with the Immigration Liaison Officer remain vague. There is however no dispute that the applicant informed the Immigration Liaison Officer that he had a sister living in the UK. The Immigration Liaison Officer had doubts concerning the applicant’s credibility and revoked the grant of entry clearance. 8.The applicant was invited to a 2nd interview on 6 February 2020. This interview was also conducted in English. The applicant was informed that he had been denied boarding on 31 January 2020 because of the Immigration Liaising Officer’s concerns regarding his credibility and whether he was a genuine student and genuinely intended to leave the UK at the end of his course. The applicant was asked whether he had any family in the UK (questions 9 and 11). The applicant initially answered “no”, but when asked “are you sure?” he stated,“Actually urm last interview the last embassy interview was about my university related but in Heathrow one of my older sisters she live there.”9.The applicant then confirmed that an older sister planned to pick him up from Heathrow on his arrival. At question 14 the applicant was told that one of the reasons he had been denied boarding was because he informed the Immigration Liaison Officer that he had a sister in the UK. This was contrary to the information in his application form and in his 1st interview, and affected his credibility. To this the applicant responded,“That was a misunderstanding at the time because I was living in Southampton I thought it was Southampton my one sister live in UK near Heathrow and my one friend got to UK so I told her that recently my one friend.”10.At question 15 the interviewer asked,“But the question stated in your last interview was that “do you have any family or friends in the UK” and the same on your visa application form, it didn’t specify whether your family or friends lived in Southampton so can you tell me why you didn’t declare this and how this was a misunderstanding?”11.The applicant replied,“English is not my first language so it was a misunderstanding so I thought it meant someone lived in Southampton but one my sister in the airport she lives near Heathrow and recently one.”12.Later in his 2nd interview the applicant stated that his sister would arrange “all things” such as opening a bank account for him. The applicant confirmed that he had not booked accommodation for himself when he was due to fly on 31 January 2020 because he had only very recently received his visa and the date for his enrolment had been extended. The applicant also stated that his sister would pick him up and they would go to the university in Southampton and that “she will manage all things.” The applicant planned to stay at his sister’s house over the weekend and would then manage his accommodation. At the end of the interview the applicant confirmed that he understood all the questions and that he was still feeling fit and well.13.On the same day the applicant’s application for entry clearance was refused. Having set out the relevant questions from both of the applicant’s interviews and the information provided in his application form, the respondent refused the applicant’s application under paragraph 320(7A) of the Immigration Rules. The respondent noted that the applicant was given an opportunity to disclose whether he had family in the UK and that he initially disclosed that he did not, but that on further probing he accepted that he had a sister here. The respondent acknowledged the applicant’s explanation that he had “misunderstood the question” and thought that it related to whether he had any family in Southampton, but it was noted that the application form and the interview questions referred to whether the applicant had family in the UK in general. The respondent additionally noted the applicant’s claim that there had been a misunderstanding because English was not his first language. The respondent observed that the applicant intended to study a course that would be delivered in English and, at the end of his 1st interview, he indicated that he had understood all the questions asked. The respondent was not therefore satisfied that the was any misunderstanding. The respondent found that the applicant used deception as he failed to declare a material fact on his application form and at the interview. 14.The respondent stated,“At the end of your previous interview on 31/12/2019 when you were asked if you understood all the questions you said “yes” I am therefore satisfied that it was not a misunderstanding and I am satisfied that you have intended to use deception as you failed to declare a material fact on your visa application form and at your interview.”15.Having found that the applicant failed to declare a material fact, the respondent doubted his intentions in wishing to travel to the UK. The applicant was informed that he may have future applications refused under paragraph 320(7B) for a period of up to 10 years. The respondent then stated,“At the end of the interview with me on 06/02/2020 you confirmed that you understood all the questions, that you were happy with the conduct of interview [sic] and that you are still feeling fit and well and you did not any [sic] other information to add. I am therefore satisfied that you were given an opportunity to answer all the questions to the best of your ability.”16.The applicant applied for Administrative Review of the 1st decision. In the section of the Administrative Review form where the applicant was asked to explain why he thought that the 1st decision is wrong he stated, with respect to the manner in which he completed his visa application form, “However, on the application form the question is [sic] if I have family in the UK and in the guideline it says that in [sic] family it includes immediate family such as spouse, civil partner, parents or children, grandparents or grandchildren, spouse or civil partner’s family, children 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.”17.The applicant made the same point in relation to his interviews. He also indicated that he did not live with his sister, that she lived with her husband and children, and that she was not considered to be part of “the family.” The applicant stated,“In my interview at the airport, I was asked if I have relatives and who is picking me up where I stated that my sister will pick me up since she lives close by the airport and I did not get enough time to arrange the university accommodation since my visa was granted so late. In my second interview I have also mention [sic] that I have my sister who lives by Heathrow airport. Therefore, I did not hide any information at any stage.”18.It is noteworthy that, in his Administrative Review application, the applicant made no mention of having being advised by an agent in relation to his application. 19.At the beginning of the Administrative Review decision dated 14 February 2020 the respondent recorded that the application had been refused under paragraph 320(7A) because the applicant used deception by failing to disclose material facts both in his application form and during his interviews. Having summarised the applicant’s Administrative Review application, and having referred to the applicant’s assertion that he had paid his full tuition fees and that he was a genuine student, the Administrative Review considered that the Entry Clearance Officer made a “sound assessment” of the application in accordance with the relevant Immigration Rules, policy and guidance. It was noted that the applicant, in his 2nd interview, did not raise any misunderstanding on his part concerning the definition of family, but that his explanation centred on the fact that he did not have relatives in Southampton. It was again noted that the applicant initially answered “no” in his 2nd interview when asked whether he had any family in the UK. The Entry Clearance Officer was entitled to conclude that the applicant failed to declare information about his sister in the UK, that there was no misunderstanding on his part, that he intended to use deception, and that he therefore failed to disclose a material fact “… and also at various times provided false information when questioned at interview.” 20.In a Pre-Action-Protocol Letter dated 17 March 2020 that only challenged the 1st decision it was claimed, for the first time in the applicant’s legal challenge, that an agent, Mr Choudhury of ‘AIMS Study Abroad’, whom the applicant had employed to complete his student application form, informed him that ‘family’ in the context of the student application did not include a sister. The applicant made a statement dated 10 May 2020 claiming that Mr Choudhury advised him that a sibling was not considered a family member and that, as a result of Mr Choudhury’s mistake, the applicant did not mention his sister. He later produced a statement from Mr Choudhury to this effect.21.Permission was initially refused on the papers by Upper Tribunal Judge Coker on 26 June 2020, and then at a renewed oral hearing before Upper Tribunal Judge Perkins on 10 August 2020. Judge Perkins accepted “… there was some published guidance defining “family members” and that the definition did not extend to siblings.” It is not apparent from the papers before us what specific published guidance Judge Perkins was referring to. Judge Perkins also accepted that an agent advised the applicant that he need not admit to having a sister because a sister was not a family member. Judge Perkins noted however the instances in which the applicant asserted he had no relatives in the UK and that there was no reason to doubt the applicant’s ability to speak and understand English. Judge Perkins stated at the end of his decision:“Ironically the existence of a sister may not be material in the sense that it would not of itself stop the Applicant satisfying the rules but it is plainly material that a prospective immigration [sic] is not frank about his relatives in the United Kingdom because their presence may provoke all kinds of questions and concerns. The lie was material because it sought to prevent proper investigation.”22.Lady Justice Rose (as she then was) granted permission to appeal to the Court of Appeal on 3 November 2020. The matter was remitted to the Upper Tribunal pursuant to a sealed consent order dated 8 March 2021.23.In granting permission to appeal Lady Justice Rose stated:“There are four grounds in the amended Grounds of appeal which all raise different aspects of the same complaint namely that Mr Ashrafuzzaman was prompted to answer ‘no’ to the question whether he had any family here by his agent telling him that ‘family’ in this context did not include a sister but was limited to immediate family such as a wife and children. In Judge Perkins decision he accepts (a) that the agent did tell Mr Ashrafuzzaman that and (b) that in fact there was an extant Home Office Guidance to that effect, i.e. defining family members in a way that did not extend to siblings. That was not something that Judge Coker mentioned in her ruling as it may not have been drawn to her attention. Mr Ashrafuzzaman provided a witness statement from Mr Choudhury who helps students apply for visas and who helped Mr Ashrafuzzaman fill in his application. Mr Choudhury says that a sister was not included as being a family member on the list in the Visa application form.If it is right that Mr Ashrafuzzaman thought that the questions about whether he had family related solely to whether he had a wife and children, that may explain his otherwise rather odd answer in interview that he thought the question related only to whether he had family living in Southampton. Since that is where he was living at the time, his answer is therefore necessarily inconsistent with his previous explanation that he did not think sisters were included since his sister would not be part of his household in Southampton. I do not agree therefore with the Judge’s assessment that the answers read as though he was trying to hide the fact that he had a sister.I also accept the point that the Judge did not give adequate weight to the fact that Mr Ashrafuzzaman had volunteered the information about this sister to the Immigration Officer, albeit after prompting. There was no particular reason for him to do so if he was trying to hide the fact that he had a sister here.Given the test for deception or dishonesty needed to render a false representation a ground for mandatory refusal as discussed in the case law and Home Office guidance set out in the skeleton, this matter should be looked at again. I bear in mind also the very serious consequences for Mr Ashrafuzzaman if the finding of deception stands. It seems to be agreed that having or not having a sister here would not have affected his application for a student visa, so there was no reason to lie about it.”24.The sealed consent order stated:“The parties now agree that the matter be remitted to the Upper Tribunal in order that there be some greater clarity about whether there is, in fact, Home Office guidance as to the meaning of “family” and whether it includes sisters.”25.On 6 September 2021 Upper Tribunal Judge Gill permitted the applicant to amend his claim to challenge the Administrative Review decision and she granted permission to proceed with the judicial review challenge “limited to the question of whether the applicant was dishonest”. 26.Judge Gill noted the respondent’s acceptance at the renewal hearing that the grounds included an assertion by the applicant that there was a factual issue as to whether or not he had been dishonest. 27.Judge Gill stated,“4. There is an arguable issue as to whether not [sic] the judgment of the Court of Appeal in Balajigari & Others v SSHD [2019] EWCA Civ 673 has the effect of, or should be interpreted as, requiring the Upper Tribunal to make its own finding on dishonesty in a judicial review claim against a decision that refuses an application under para 320(7A) in circumstances where the decision in question does not give rise to a right of appeal to the First-tier Tribunal (“FtT”). 5.If yes, there is a further arguable issue as to whether the Upper Tribunal, in reaching its decision on the issue of dishonesty, is limited to the evidence that was before the decision-maker(s) as at the date of the decision(s) being challenged or whether it is permitted to take into account evidence that was not before the decision-maker, including oral evidence. If the Upper Tribunal decides that it is limited to the evidence that was before the decision-makers as at the dates of the decision dated 6 February 2020 and the administrative review decision dated 14 February 2020, it would appear that the applicant will not be able to rely upon his explanation that he had been misadvised by a consultant at AIMS Study Abroad because this was only advanced after the administrative review decision had been made. 6.If the answer to 4 above is “yes”, there is arguably a factual issue in the instant case as to whether or not the applicant was dishonest. In that event, the parties will need to address the Upper Tribunal as to the appropriate disposal if dishonesty is established and if dishonesty is not established.” 28.At the hearing on 12 January 2022, having considered submissions from both representatives, we determined whether we had to make our own finding on dishonesty in this judicial review claim against the refusal under para 320(7A) (the ‘precedent fact issue’) as a preliminary issue in the respondent’s favour. We then heard submissions on the remaining grounds and reserved our decision.Summary of legal challengeThe applicant’s submissions29.We summarise the applicant’s submissions, as detailed in Mr Turner’s skeleton argument and his oral submissions. We have condensed Mr Turner’s submissions into five general challenges.The ‘precedent fact’ issue30.Mr Turner relied on several authorities including, inter alia, Balajigari [2019] EWCA Civ 673; [2019] Imm AR 1152 (“Balajigari”) to support his submission that the Tribunal must engage in a fact-finding exercise and determine for itself whether the applicant was dishonest. His essential submission was that the issue of dishonesty in a judicial review challenging a decision taken under paragraph 320(7A) of the Immigration Rules is one of precedent fact requiring the Tribunal to determine the issue for itself.31.Mr Turner relied on paragraphs 92, 95 and 104 of Balajigari to support his contention. He submitted that, given the need to consider the applicant’s explanation against “the minimum level of plausibility” (a reference to [25] in Shen (Paper appeals; proving dishonesty) [2014] UKUT 00236 (IAC); [2014] Imm AR 971 dealing with the nature of the innocent explanation that must be advanced by an individual after a prima facie case of dishonesty has been established), the application must be treated as one of precedent fact so as to enable the applicant to prove his innocent explanation before an independent judge.32.Mr Turner further submitted that the respondent’s reliance on Begum [2021] UKSC 7; [2021] Imm AR 879 (“Begum”) was misconceived because both the instant case and Balajigari concerned allegations of dishonesty which had serious consequences in respect of future applications and which could result in a 10 year ban on re-entry to the United Kingdom. In contrast, Ms Begum had her citizenship revoked “on grounds of conduciveness to the public good”, not because of any issue relating to dishonesty.33.In reliance on Balajigari Mr Turner submitted that, if it was for the Tribunal to determine for itself the issue of dishonesty, it was then entitled to consider post-decision evidence. This would include the applicant’s explanation that he acted on the advice of Mr Chowdhury, which was first contained in his Pre-Action-Protocol Letter on 17 March 2020 and later in his statements, the statement from Mr Chowdhury and the supporting emails. The applicant would also be entitled to give oral evidence. Without such evidence the Tribunal would be unable to fully understand the issue, and the applicant would otherwise be unable to provide evidence to rebut the allegation of dishonesty and prevent his entry clearance being revoked.The lawfulness of the respondent’s approach to dishonesty34.Mr Turner relied on AA Nigeria v SSHD [2010] EWCA Civ 773; [2010] Imm AR 704, Ahmed (general grounds of refusal - material non-disclosure) Pakistan [2011] UKUT 351 (IAC), Omenma (Conditional discharge – not a conviction for an offence) [2014] UKUT 314 (IAC) and Agha, R (on the application of) v SSHD [2017] UKUT 121 as support for the (uncontroversial) proposition that dishonesty was needed to support a refusal under paragraph 320(7A) and that a mere mistake will not suffice. Mr Turner further supported this proposition by reference to the respondent’s published guidance of 6 December 2019, version 2.0, ‘False Representations’ (page 6 states that “you must not refuse if… a person has made a genuine mistake… or was unaware that the false representation had been made… or has merely claimed something to which they were not entitled without any dishonest intention.” Mr Turner also relied on Balajigari at [43] which stated that an allegation of dishonesty was a serious allegation and carried with it serious consequences, that the Secretary of State had to therefore be satisfied that dishonesty occurred, and that the standard of proof was the balance of probabilities “… but bearing in mind the serious nature of the allegation and the serious consequences which follow from such a finding of dishonesty”.35.Mr Turner contended that a “high threshold for the burden” of proving dishonesty had to be met by the respondent and that the respondent could not discharge this burden because this applicant disclosed rather than concealed the relevant information by voluntarily informing the Immigration Liaison Officer about his sister. This materially undermined the respondent’s conclusion that he had been dishonest. Mr Turner relied on the view of Lady Justice Rose that “… there was no particular reason for [the applicant] to [have volunteered the information about his sister] if he was trying to hide the fact that he had a sister here”, and that “it seems to be agreed that having or not having a sister here would not have affected his application for a student visa, so there was no reason to have lied about.”36.Mr Turner submitted that the respondent failed to properly consider the rationale for the applicant allegedly concealing information about his sister, especially given the lack of significance of this information. If he truly intended to conceal the existence of his sister it would have been irrational for him to then disclose this information, unprompted, to the Immigration Liaison Officer at the airport. The applicant’s understanding of the meaning of ‘family’ in the relevant guidance37.Mr Turner relied on the observation by Upper Tribunal Judge Perkins that there was “some published guidance defining “family members” and that definition did not extend to siblings.” If this was correct, the agent would have been correct to advise the applicant of the same, and it was therefore “highly flawed to then penalise the Applicant simply for following the advice given by the agent.” It was irrational for the respondent to conclude that false representations occurred when her own guidance policy verified that family members do not extend to siblings.38.In his written submissions Mr Turner referred to several guidance documents published by the respondent. These included ‘Student and Child Student’ guidance note published on 6 April 2021 (we note that this post-dated the decisions under challenge), Appendix 1 to the form VAF4A (relating to family settlement), and guidance notes for the form VAF2 (relating to visas for work, study and for dependents). Mr Turner additionally relied on other guidance notes including those in respect of family reunion applications, applications by students, dependent family members of Tier 1 migrants, Appendix FM, and family reunion in respect of dependents of refugees. None of these contained any reference to a sibling as a family member.39.Mr Turner submitted that the absence of any reference to a sibling as a family member in the aforementioned guidance entitled the applicant to infer that siblings did not fall to be considered as ‘family’ for the purposes of his immigration application. Mr Turner relied on a statement dated 5 November 2021 from Stuart Ouseley, a Policy Officer employed at the Simplification and Systems Unit of the Home Office, accepting that there was no definition of ‘family in the UK’ provided in the student guidance because entry as students did not depend on any familial relationship as the basis of the grant of leave. Mr Turner noted however that the guidance listed a select number of categories as family members and did not state that it was a non-exhaustive list. The issue of materiality40.Mr Turner submitted that the failure by the applicant to disclose the existence of his sister in the UK in his application form and his first interview was not material to his application. Consequently, the requirements of paragraph 320(7A) were not met.Procedural fairness41.According to Mr Turner the respondent acted in a procedurally unfair manner as she was aware that the applicant had a sister prior to the 2nd interview but the respondent “… still attempted to undermine the Applicant’s credibility - contrary to the AOS/SGD it is submitted that the interviews themselves do not provide the Applicant a proper opportunity to provide his innocent explanation and as noted above the Applicant left the second interview still uncertain as to why he was prevented from boarding, and ultimately why his credibility was being called into question.”The respondent’s submissions42.We summarise the respondent’s submissions, as detailed in Ms Anderson’s skeleton argument and her oral submissions. 43.With respect to the grant of permission to appeal issued by Lady Justice Rose, the Court of Appeal did not purport to make any factual findings or to decide any issue that was now before the Tribunal. The Tribunal had to determine what Ms Anderson termed “the constitutional issues” before it could properly form any view of the underlying merits of the application of the general grounds for refusal.44.In relation to the question of precedent fact, Ms Anderson submitted that the Tribunal could only undertake a supervisory role in its approach to the issue of dishonesty such that its function was to review the respondent’s decision on conventional public law grounds. Ms Anderson relied on the judgment in R (