Dishonesty and deception in immigration cases

Paragraph 322 (1A)  of the Immigration Rules provides a mandatory ground for refusal in the following circumstance:

“where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.”

Paragraph 6 of the Immigration Rules defines deception in the following way:

“Deception” means making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.”

The Secretary of State for the Home Department also has the discretion under paragraph 322(5) of the Immigration Rules to refuse an application on a public policy basis:

“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security”

Following a consistent string of appeals surrounding the theme of deception going to the Upper Tribunal, without being reported, the Upper Tribunal Reporting Committee has recently reported the case of Khan, R (on the application of) v SSHD [2018] UKUT 384 (IAC). Whilst this judgment is not a Court of Appeal or Supreme Court judgment, it does provide litigants and immigration practitioners with fuller guidance on the intricate theme of deception.

The Facts

This case involved an Applicant who submitted an application for indefinite leave to remain as a Tier 1 (General) migrant. Five days before the application was made, the Applicant’s accountants wrote to HMRC stating that, due to an error with their software, an incorrect year submission had been made to HMRC for the tax year 2011/2012, which did not reflect the Applicant’s accurate salaried earnings for that year. The difference between the actual gross salary and the salary submitted to HMRC was in the sum of £31,500 as only the earnings from two months in the tax year were accounted for.  As a result, an amended tax return was filed. The application for ILR was subsequently refused under paragraph 322(5) (cited above) on the basis that there was a considerable discrepancy between the amount of salaried earnings claimed to UKVI and the amount of salaried earnings declared to HMRC.

A further application for ILR contained a letter from the Applicant’s accountants which accepted the full responsibility for the incorrect year-end submission to HMRC, attributing the issue to a ‘clerical error and software issue’, and not the Applicant’s intentions.  Following another refusal by the Home Office, the matter proceeded to administrative review. The original decision by the Home Office was maintained on the premise that the Secretary of State did not have a burden to prove deception in this instance, having decided the application under paragraph 322 (5), as opposed to paragraph 322 (1A)…. READ FULL ARTICLE