Case No. UKUT-00133-(IAC)

[2014] UKSC 60, Caroopen & Myrie [2016] EWCA Civ 1307; [2017] Imm AR 930). In the absence of any parallel or concomitant ECHR considerations the Tribunal’s role is supervisory, (Giri). The 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. 78. We find that both Balajigari and Ahsan involved particular questions that arose in the context of judicial review challenges concerning matters of dishonesty that had parallel or concomitant ECHR considerations involving the same dishonesty matters.79. The issue of dishonesty in Ahsan was determinative of whether there would be a breach of the applicants’ Article 8 ECHR rights ([76] and [88]). The Court was at pains in Ahsan at [118] to prevent any wider application of the pragmatic approach proposed, and expressly referred to the s. 10 removal decision at [117] as being the source of the justification for a judicial consideration of the facts concerning deception. It was made clear that the analysis in [117] “does not mean that in every case where a finding of deception is made the subject of that finding is entitled to a judicial determination of the truth of the allegation” and “whether it does so will depend on the legal context in which the question arises, including whether it is material to a human rights claim”. Underhill LJ further added that “there are cases where only a rationality review is available is illustrated by Giri”.80. Mr Turner did not argue that the applicant’s Article 8 ECHR rights were engaged in respect of his application or the challenged decision. We are satisfied that there is no Article 8 ECHR claim by this applicant associated with his student visa application. We communicated our decision in respect of the precedent fact issue to the parties as a preliminary issue. Whether the respondent’s assessment of dishonesty was lawful when considered under conventional public law grounds81. We must assess the lawfulness of the respondent’s decision using conventional public law grounds. As such, we are concerned with whether the respondent was lawfully entitled to reach his or her decision on the basis of the information available to her at the date of the challenged decision. Evidence and explanations, including the explanation first advanced by the applicant in his Pre-Action-Protocol Letter sent in March 2020 that he was assisted in his application by an agent, the witness statement from Mr Choudhury dated 29 September 2021, and the witness statement from the Entry Clearance Officer dated 2 November 2021 cannot therefore be considered when determining the lawfulness of the decisions under challenge. It was for this reason that we declined to hear evidence from the appellant (even if it was available to give, bearing in mind Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC)). 82. The legal burden of proving that the applicant was dishonest lies on the respondent, albeit that there is a three-stage process. The respondent must first adduce sufficient evidence to raise the issue of dishonesty. The applicant has then a burden of raising an innocent explanation which satisfies the minimum level of plausibility. If that burden is discharged the respondent must establish to her satisfaction, on a balance of probabilities, that this innocent explanation can properly be rejected (Abbas, R (on the application of) v SSHD [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:Family who live in the UKDo you have any family in the UK?This includes:• Immediate family such as spouse, civil partner, parents or children• grandparents or grandchildren• your spouse or civil partner’s family• your child spouse, civil partner or partner• your partner, if you have lived with them for two out of the last three years93. We note that the description of the application form, set out above, closely matches what the applicant stated in his Administrative Review application. Given that the applicant’s explanation in his Administrative Review application related to the question on the application form and “the guideline” relating to it, it is almost certainly the case that the applicant’s reference to “the guideline” related to the description set out above.94. The question relating to whether a person has any family in the UK was broadly phrased in non-exhaustive terms and utilised plain and clear language. Although there was no specific mention of siblings, we find, based on the ordinary and natural meaning of the word ‘family’, that it would be apparent to anyone completing the form by reference to the accompanying “guideline” that they were being asked whether they had any family at all in the United Kingdom, and that this would necessarily include siblings.95. In the Administrative Review decision, the respondent engaged with and rejected the applicant’s explanation that he did not provide details about his sister because he did not consider her to fall under the definition of ‘family’. The respondent noted that the applicant’s explanation in his 2nd interview was based on the geographical location of his sibling (the applicant in effect explained that he believed the question related to where he was living in UK; as he would be living in Southampton and as his sister lived year Heathrow, he did not mention her). The respondent noted that the questions in the application form and during the applicant’s 1st interview were clear and that he confirmed that he had understood them. We have noted that the application form question was in non-exhaustive terms and the question itself was straightforward. We are also satisfied that the question posed to the applicant in his 1st interview was clear and unambiguous. He was asked whether he had any family “in the UK.” There was no indication from the applicant when this question was asked that he did not understand what was meant by “any family in the UK.” We do not find the respondent acted irrationally in concluding that a student applicant completing the application form would reasonably understand the question to relate to all relatives. This would necessarily include siblings. The respondent was rationally entitled to conclude that the question in the application form was sufficiently clear so as to put an applicant on notice that they must mention whether they have a sibling living in the UK.96. There was no indication before the decision-makers that the applicant had studied other guidance or been advised in respect of other immigration guidance. We are satisfied that these matters have been raised after the event in an attempt to justify the applicant’s answer. We have nevertheless considered the other guidance to which Mr Turner drew our attention, particularly in the light of the comments by the Court of Appeal concerning the need for greater clarity about whether there is Home Office Guidance as to the meaning of ‘Family’ and whether it includes siblings. 97. There is no general definition of family in the interpretive section at paragraph 6 of the Immigration Rules. The Home Office guidance for students did not make any specific reference to who was and who was not considered ‘family’ in the United Kingdom. Although it was not specifically drawn to our attention we note that the relevant guidance on students included, with reference to child students, a definition of ‘close relative’ that did include siblings. We additionally note that the guidance for part 1 of the Family Settlement application form provided by the applicant for the purposes of the hearing indicated that “close relatives” included “brother” and “sister”.98. The applicant relied on the respondent’s guidance ‘Study in the UK on a Student visa’, but this did not contain any definition of ‘family’ that an applicant may have in the United Kingdom. The section upon which Mr Turner relied was headed “Your partner and children” and concerned the ability of a student’s partner and children (referred to as ‘dependents’) being able to apply to come to the UK or stay longer in the UK. This section was concerned with those wishing to accompany or join a student in the UK who fell within a particular familial relationship. The guidance indicated that a Tier 4 (General) Student could apply to bring their partner and/or children into the UK. It did not define ‘family’, still less did it purport to provide more extensive guidance on what was meant by ‘family’ in the context of a student application. 99. Mr Turner also relied on ST 28 of the “Appendix Student” to the Immigration Rules, but this too specifically related to the requirements for entry clearance or permission to stay of a dependent partner or a dependent child of a student. The Appendix did not purport to define ‘family’, whether in the United Kingdom or otherwise, and cannot reasonably be considered to give any guidance on the completion of the student application form. 100. The other Immigration Rules and guidance upon which Mr Turner relied related in the main to categories of individuals seeking to enter the UK based on their familial relationship with a person holding an immigration status allowing for such entry. These categories, many of which are under Part 8 of the Immigration Rules and Appendix FM, are highly specific. Part 8 of the Immigration Rules relates to ‘Family Members’ and not to the more general term ‘family’, and concerns applications for entry clearance and permission to remain by those within closely defined familial relationships. The same can be said of Appendix FM to the Immigration Rules. The guidelines relating to these categories are not aimed at those contemplating or making applications in the Tier 4 (General) Student category, and student applicants are not directed to consider any of these other categories or the guidance related to these categories. 101. Mr Turner submitted that there was a failure by the respondent to consider the voluntary disclosure by the applicant that he had a sister in the UK and that this should have been considered as it undermined the allegation that he intended to deceive. 102. We have already indicated that we were not provided with either an extemporaneous note of the conversation between the applicant and the Immigration Liaison Officer at the airport, or with a summary of that conversation. We note that in his statement dated 10 May 2020 the applicant said he was stopped at the airport just before boarding the plane and was asked by the Immigration Liaison Officer about his UK arrangements, and in his response he disclosed that he had a sister in the UK. In his Administrative Review application the applicant said that the Immigration Liaison Officer asked him if he had relatives in the UK and who was picking him up from the airport, to which he stated that his sister would pick him up. 103. We are satisfied that the applicant’s disclosure of his sister was prompted by specific questions asked of him by the Immigration Liaison Officer concerning his arrangements on his arrival in the UK. It is apparent from question 14 of the 2nd interview that the respondent was aware of the circumstances in which the applicant disclosed the existence of his sister. We additionally note that the 1st decision accurately referred to the chronology of events, including the questioning of the applicant at the airport. We are not persuaded that the respondent failed to take account of the circumstances in which the disclosure occurred, or that the respondent failed to take into account the fact that the applicant voluntarily disclosed his sister’s presence in the UK. 104. We do not consider that the fact that this information was voluntarily disclosed in response to questions from the Immigration Liaison Officer to materially undermine the lawfulness of the respondent’s view that the applicant purposely failed to disclose his sister’s existence. In circumstances where the applicant has given different explanations for his omission, and in circumstances where he could have, but failed to mention his alleged confusion about the meaning of ‘family’ in his 2nd interview, we are satisfied that it was open to the respondent to find that the failure of disclosure was intentional and therefore dishonest. We remind ourselves that we are not deciding for ourselves whether the applicant has been dishonest but whether, in reaching her decision, the respondent was lawfully entitled to so conclude for the reasons given, and that in reaching this decision she took into account all relevant considerations and did not place weight on relevant matters.Whether the applicant’s sister’s presence in the UK was a material fact in relation to the application105. We are mindful of the comment made by Lady Justice Rose that there appeared to be agreement that having or not having a sister in the UK would not have affected the applicant’s application for a student visa. We are unclear as to the source of this agreement, although it may stem from the observation by Judge Perkins set out in paragraph 21 above.106. We note that the Court of Appeal was not purporting to make any factual findings nor to decide any issues given that its comments were made at the permission stage and on the papers alone based on the applicant’s submissions. We acknowledge that the presence of a sibling in the UK would not necessarily have affected the applicant’s application for entry clearance. We are however satisfied that the respondent was rationally entitled to consider the presence of family in the UK as a material fact relevant to an application for entry clearance. 107. Whether the applicant had family members in the UK was a factor relevant to determining the applicant’s genuine intentions. The presence of family members may be relevant in ascertaining whether an applicant genuinely intended to leave at the end of his period of leave; if he had family members in the UK he may wish to remain living here to be close to those family members. The assessment undertaken by the respondent of a person’s intentions will consider, amongst other things, the strengths of an applicant’s links to the UK and factors that may tend to make it more likely that a person will remain in the UK after their leave has expired. We are consequently satisfied that the presence of the applicant’s sister in the UK was a material fact in relation to his entry clearance application, and that the respondent was entitled to treat it as a material fact. Whether the decision was procedurally fair108. The applicant’s judicial review grounds contend, in insufficiently particularised terms, that the respondent’s decisions were procedurally unfair because, based on Balajigari, the applicant would not be permitted to adduce further evidence to show he had not been dishonest, and because the respondent was aware that the applicant had a sister in the UK prior to his 2nd interview “…but still attempted to undermine the Applicant’s credibility.” Mr Turner did not develop this aspect of the judicial review challenge in either his skeleton argument or his oral submissions. 109. To the extent that the challenge may suggest that further evidence could not be provided at the Administrative Review stage following a refusal under paragraph 320(7A), AR2.11(a)(i) of ‘Appendix AR Administrative Review’, indicates that ‘case working error’ includes a situation where the original decision maker’s decision to refuse an application on the basis of paragraph 320(7A) was incorrect, and, under paragraphs AR2.4(a) and AR2.11(a), it is open to the applicant to adduce further evidence in support of the Administrative Review application.110. Following the revocation of his entry clearance the applicant was invited to a 2nd interview. The respondent’s concerns regarding the applicant’s omission in respect of his sister were put to him during the 2nd interview, and he was given an adequate opportunity to respond to those concerns. We do not accept Mr Turner’s contention that the applicant did not know why his entry clearance was revoked when he underwent his 2nd interview. At questions 7 and 8 the applicant was told that he had been denied boarding at the airport because of concerns relating to his credibility, and at questions 9 to 15 he was expressly told that the credibility concern arose from his answers relating to whether he had any family in the UK.111. We are not persuaded that there was any procedural unfairness in relation to the 2nd interview, and we find it was conducted in compliance with guidance given in R (Mushtaq) v ECO (ECO - procedural fairness) IJR [2015] UKUT 224 (IAC) and R (Anjum) v ECO (entrepreneur-fairness generally) [2017] UKUT 406 (IAC). We are satisfied that the 2nd interview, which occurred before the challenged decisions were made, constituted a lawful opportunity for the respondent’s concerns to be put to the applicant, and for him to respond to those concerns. The applicant was unarguably given a fair opportunity to respond to those concerns prior to the adverse decision being made. There is no procedural unfairness.Conclusion112. For the reasons given above we find that the respondent’s decision was lawful. We consequently refuse the judicial review challenge.D.Blum Signed: Upper Tribunal Judge BlumDated: 4 April 202