Li v Secretary of State for the Home Department

Immigration, Entry clearance.

For the purposes of para 320(7B)(d) of the Immigration Rules, submitting a false document would only be deception if the applicant submitted the document knowing that it was false and the Upper Tribunal (Immigration and Asylum Chamber) had erred in its conclusion that it did not matter if it had been the dishonesty of the applicant or a third party. However, the Court of Appeal, Civil Division, held that it had been patently open to the Secretary of State to conclude, on the balance of probabilities, that the appellant had knowingly submitted false documents.

In May 2014, the appellant Chinese national applied for entry clearance as a Tier 1 (Investor) migrant. It appeared that the appellant had instructed an agent to obtain or help to obtain a new birth certificate for her son and it was that birth certificate that was submitted with her application. The appellant’s application was refused, under para 320(7A) of the Immigration Rules, on the basis that the birth certificate was a false document.

In August 2015, the appellant applied again for entry clearance as a Tier 1 (Investor) migrant. The application was refused, under para 245EB of the Immigration Rules, concerning insufficient points under the points-based system and again under para 320(7B) of the Immigration Rules, that in her previous application for entry clearance she had provided a false document, the son’s birth certificate.

The appellant’s application to judicially review that decision was refused. In particular, the Upper Tribunal (Immigration and Asylum Chamber) (the UT) held that, for the purposes of para 320(7B)(d) of the Immigration Rules, it did not matter if it was the dishonesty of the appellant or a third party, so long as the maker of the document acted dishonestly. The appellant appealed.

Issues and decisions

Whether the had judge erred in law in holding that para 320(7B)(d) of the Immigration Rules applied to the previous deception used by third parties without the appellant’s knowledge.

For the purposes of para 320(7B)(d) of the Immigration Rules, submitting a false document would only be deception if the applicant submitted the document knowing that it was false. Accordingly, the UT had been wrong to hold that there was authority for the proposition that, for the purposes of para 320(7B)(d) of the Immigration Rules, it did not matter if it had been the dishonesty of the applicant or a third party, so long as the maker of the document had acted dishonestly. The wording of paras 6 and 320(7B)(d) of the Immigration Rules indicated that the appellant had to have been aware that the documents had been false for para 320(7B)(d) to apply (see [25], [26], [40] of the judgment).

However, applying the test of whether the decisions refusing the appellant entry clearance had been unlawful because the Secretary of State had not been satisfied to the requisite standard that the appellant had used deception, it had been patently open to the Secretary of State to conclude, on the balance of probabilities, that the appellant had knowingly submitted false documents (see [33], [34], [40] of the judgment).

Source: LexisNexis