Case No: C7/2016/1957
Neutral Citation Number: [2018] EWCA Civ 2411
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Craig
JR/14232/2015
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/11/2018
Before:

THE SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE SALES

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Between:

	Li	Appellant	
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	The Secretary of State for the Home Department	Respondent	

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Ramby De Mello (instructed by Christine Lee & Co) for the Appellant
Emma Dring (instructed by Government Legal Department) for the Respondent

Hearing date: 25 October 2018

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Judgment
The Senior President: 
Introduction 

1.	This is an appeal against the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) to refuse permission to apply for judicial review of the decision of the Secretary of State made on 21 August 2015. Permission to appeal was granted by Treacy LJ in relation to one of the two grounds of appeal relied upon by the appellant. The appellant applied to renew the second ground and Beatson LJ directed that the application to renew ground two should be listed with this appeal. 

Factual and procedural background

2.	The appellant is a national of China. 
3.	On 5 May 2014 the appellant applied for entry clearance as a Tier 1 (Investor) migrant. She wanted to bring her son with her, who was born in 2007. In order to do this the appellant was required to submit her son’s birth certificate. She asserts that she had a birth certificate for her son but that it did not state his father’s name. She was given advice that she should obtain a copy of the birth certificate listing both parents’ names. It appears that she instructed an agent to obtain or help to obtain a new birth certificate for her and it was this birth certificate that was submitted with her application. 
4.	Her application was refused under paragraph 320(7A) of the Immigration Rules on the basis that the birth certificate was a false document. There was an administrative review of the decision. In support of her case on the review the appellant provided a letter, purportedly from a hospital, confirming that the birth certificate was genuine. The reviewing officer concluded (for reasons that are clearly set out in the documentation) that the birth certificate was false and the supporting letter was also false. 
5.	On 22 September 2014 the applicant made another application for entry clearance as a Tier 1 (Investor) migrant. This was rejected under paragraph 320(7B) on the basis that in her previous application for entry clearance she had provided a false document, the son’s birth certificate. 
6.	On the 27 November 2014 the appellant attempted to enter the UK but was denied entry at the port under paragraph 320(7B) of the Immigration Rules. 
7.	On 4 August 2015 the appellant applied again for entry clearance as a Tier 1 (Investor) migrant. The application was refused on 21 August 2015 under paragraph 245EB (insufficient points under the points-based system) and again under paragraph 320(7B) of the Immigration Rules. 
8.	The appellant applied to judicially review this decision. 
9.	Permission to apply for judicial review was refused at an oral hearing by Upper Tribunal Judge Craig. 

Immigration Rules and relevant legislation 

10.	Paragraph 6 of the Immigration Rules is as follows:
“In these Rules the following interpretations apply:
‘Deception’ means making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.
‘Illegal Entrant’ has the same definition as in section 33(1) of the Immigration Act 1971.”

11.	Section 33(1) of the Immigration Act 1971 is in the following terms:

“‘entrant’ means a person entering or seeking to enter the United Kingdom and ‘illegal entrant’ means a person— 
(a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or
(b) entering or seeking to enter by means which include deception by another person,
and includes also a person who has entered as mentioned in paragraph (a) or (b) above”

12.	Paragraph 245EB of the Rules states that:
“To qualify for entry clearance or leave to remain as a Tier 1 (Investor) Migrant an applicant must meet the requirements listed below.  If the applicant meets these requirements, entry clearance will be granted.  If the applicant does not meet these requirements, the application will be refused.”
13.	Paragraph 320 of the Rules is as follows:
“In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these rules, and subject to paragraph 321 below, the following grounds for refusal of entry clearance or leave to enter apply: 
…
(7A) 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.

(7B) where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach) by: 
…

(c) being an Illegal Entrant;
(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);”

Decision appealed

14.	Judge Craig held that the judicial review application could not succeed and refused permission to apply for judicial review.  The judge’s decision  was based on three reasons:
i)	there was a rational basis for concluding that the birth certificate and the letter from the hospital were false. 
ii)	for the purposes of paragraph 320(7B)(d) 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 judge purportedly relied upon AA (Nigeria) v SSHD [2010] EWCA Civ 773 to hold that a document was false if it contained an element of dishonesty. He held that the dishonesty did not have to be attributable to the appellant so long as it was attributable to the maker of the document and
iii)	the application would have failed anyway because the appellant failed to provide the necessary information to secure enough points under the points based system (under paragraph 245EB). 
15.	The appellant challenges the judge’s second reason in her first ground of appeal. 

Grounds of appeal

16.	The appellant has two grounds of appeal:
i)	The judge erred in law in holding that paragraph 320(7B)(d) applied to the previous deception used by third parties without the appellant’s knowledge and 
ii)	The judge was wrong to find that paragraph 320(7B) is engaged by previous deception which is not material to the current application for entry clearance. 
17.	Permission to appeal was only granted in relation to the first ground of appeal. The application to renew the second ground of appeal has been listed with this appeal. 

Preliminary discussion

18.	The appellant was refused entry clearance under two separate paragraphs of the Immigration Rules: 245EB and 320(7B).  Mr De Mello who appears on behalf of the appellant before this court very properly accepts that he cannot challenge the refusal of entry under paragraph 245EB which was the consequence of a straightforward failure to provide enough information to secure enough points having regard to the particulars that are described in that paragraph of the Rules. 
19.	In written submissions, Ms Dring, who appeared for the Secretary of State, pursued an argument that the whole appeal was academic because there also existed an option for the merits to be decided against the appellant under rule 320(7B)(c).  In oral submissions, Ms Dring, on instructions, did not pursue that point for reasons which need not detain this court.  Mr De Mello argued forcefully against the application of rule 320(7B)(c) as a matter of principle and on the facts.  Given the joint position of the parties, it suffices to say that this court has not heard argument from each party on the other’s interpretation of rule 320(7B)(c) and it is neither necessary nor in that circumstance appropriate to come to a conclusion on the point.
20.	The issue before the court in that circumstance has focussed on rule 320(7B)(d).

Ground one

21.	The appellant and the Secretary of State agree that in relation to the first ground of appeal Judge Craig was wrong to interpret paragraph 320(7B)(d) of the Immigration Rules in the way that he did, namely to hold that 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 parties submit that an applicant only uses ‘deception’ so as to trigger the application of paragraph 320(7B)(d) if the applicant knows that a false document has been submitted, or a false representation has been made. 
22.	At [15] and [16] of his judgment, Judge Craig held:
“I have in mind that the issue before me is not to make a decision as to whether the information contained within the certificate is correct or even whether the applicant herself knew that the second document was or was not false, but whether the respondent was entitled to conclude that whoever it was who had submitted and obtained the document for her that they were manufacturing a false document.

That is clear from the leading decision of AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 in which it was made absolutely clear that a document was false if it contained an element of dishonesty, which dishonesty would have to be the maker of the document, who did not have to be the applicant in a particular case.”

23.	In order to apply AA (Nigeria), one must be careful to distinguish between the rules. Rix LJ sets out the test to which Judge Craig referred at [67]:

“It is plain that a false document is one that tells a lie about itself. Of course it is possible for a person to make use of a false document (for instance a counterfeit currency note, but that example, used for its clarity, is rather distant from the context of this discussion) in total ignorance of its falsity and in perfect honesty. But the document itself is dishonest. It is highly likely therefore that where an applicant uses in all innocence a false document for the purposes of obtaining entry clearance, or leave to enter or to remain, it is because some other party, it might be a parent, or sponsor, or agent, has dishonestly promoted the use of the document. The response of a requirement of mandatory refusal is entirely understandable in such a situation. The mere fact that a dishonest document has been used for such an important application is understandably a sufficient reason for a mandatory refusal. That is why the rule expressly emphasises that it applies “whether or not to the applicant’s knowledge”.” 

24.	Although this discussion concerns false documents in the context of paragraph 322(IA) and the similarly worded paragraph 320(7A) of the Immigration Rules, the issue to be determined in AA (Nigeria) was whether “false” in either paragraph 320(7A) or paragraph 322(IA) was being used with the meaning of “incorrect” or with the meaning of “dishonest”.  In order to understand the application of AA (Nigeria) to paragraph 320(7B)(d) of the Rules one needs to read that paragraph in the context of paragraph 6 of the Rules.  This Rix LJ did at paragraph [51] of AA (Nigeria). 
25.	For the purposes of paragraph 320(7B)(d), submitting a false document will only be deception if the applicant submits the document knowing that it was false. This was confirmed by Rix LJ at paragraph [51] where he cites with approval NA (Pakistan) v Secretary of State for the Home Department [2009] UKAIT 0003 as follows:
“Thus their decision included the following, at para 146:
‘It can be seen from the wording of paragraph 6 of the Rules that, unlike paragraph 322(IA) which does not require knowledge on the part of the applicant, paragraph 6 contains no such extension. In our view that must mean for the deception to arise the false representations must have been made knowingly. . .’
I respectfully agree.”
26.	Judge Craig was accordingly wrong to take AA (Nigeria) as authority for the proposition that for the purposes of paragraph 320(7B)(d) of the Immigration Rules it did not matter if it was the dishonesty of the applicant or a third party so long as the maker of the document acted dishonestly. The wording of paragraph 6 and 320(7B)(d) indicates that appellant must have been aware that the documents were false for paragraph 320(7B)(d) to apply. 
27.	The Secretary of State nevertheless submits that it was unarguably open to the decision maker to conclude that the requirements of paragraph 320(7B)(d) were met on the evidence before him. To meet the requirements of paragraph 320(7B)(d) in this case the Secretary of State had to be satisfied that false documents were submitted and that the appellant knew the documents were false. It is now beyond doubt that the birth certificate and the letter from the hospital were false documents. It was also open to the Secretary of State to conclude on the facts of this case that the appellant knew she was submitting a false document for at least four reasons. 
28.	Firstly, the appellant provided inconsistent accounts of who obtained the documents.  The appellant’s email dated 12 June 2014 stated that she, and not her agent, contacted the hospital and was issued with a letter confirming that the birth certificate was genuine. This contradicts the explanation that the appellant gave in the covering letter that she submitted with her application made on 4 August 2015, namely that her agent obtained both the birth certificate and the letter. 
29.	Secondly, as Judge Craig noted, the two birth certificates were issued years apart but had the same date of issue.  It was reasonable to conclude that the person submitting these documents had to be aware that the second birth certificate had an incorrect i.e. false date of issue.
30.	Thirdly, the covering letter submitted with the application in July 2015 states that submitting the birth certificate “may have been negligent and possibly reckless” but was not dishonest because the certificate contained the correct information and there had been no intention to secure an advantage in immigration terms. It was not explicitly stated that the applicant did not know the birth certificate was false and no explanation was given for why the hospital letter was false. The explicit doubts and conclusions of falsity raised by the Entry Clearance Officers in their previous refusal notices were not addressed in the covering letter supporting the application.
31.	Finally, the Secretary of State notes that the appellant had paid a large sum to her agent to obtain a document, the birth certificate, which could have been obtained from the issuing authority for a low fee. The Secretary of State also queries why the appellant had taken legal action against her agent if she believed the document was genuine.
32.	Accordingly, it was open to the Secretary of State to conclude that the appellant had knowingly submitted false documents. 
33.	The test to be applied by Judge Craig was not agreed by the parties but I am satisfied on the authorities provided to this court that the test was whether the decisions refusing the appellant entry clearance were unlawful because the Secretary of State was not satisfied to the requisite standard that the appellant had used deception: see R (Naidu) v Secretary of State for the Home Department [2016] EWCA Civ 156 per Beatson LJ at [23] and at [28] where the court explained:
“…it is clear in the light of Giri’s case [R(Giri) v Secretary of State for the Home Department  [2015] EWCA Civ 784, [2016] 1 WLR 4418] that the role of the court is to consider whether the entry clearance officer’s decision was Wednesbury unreasonable in the sense that no reasonable decision-maker could have made it, applying the ordinary civil standard of proof: see Giri’s case at paras 34-38…”
34.	Applying that test, it was patently open to the Secretary of State to conclude on the balance of probabilities that the appellant had knowingly submitted false documents.  As a consequence, I would dismiss this appeal.

Ground two

35.	The appellant asks the court for permission to appeal ground two.
36.	The appellant submits that the judge erred in law by holding that the deception did not have to be material to the current application for entry clearance. As the Secretary of State notes the judge never made this finding as this issue was not argued before him.  It is submitted that this ground raises an important principle of law which has a real prospect of success.
37.	In my judgment the wording of paragraph 6 of the Rules is determinative of this point.  Deception is defined in terms which are expressed to be “whether or not material to the application”.  The language is plain and clear.  There is nothing in that language to support the appellant’s interpretation and no authority on the point is relied upon.  Furthermore, paragraph 320(7B) is framed by what an applicant has done “previously” and does not say that this has to be in any way material to the current application.  This is clearly intended to operate as a deterrent against attempts improperly to manipulate or circumvent the immigration control regime regardless of whether or not they have a material bearing on later applications. 
38.	I would decline to give permission to appeal on ground two both on the basis that the point of interpretation is not an important principle of law and because it has no real prospect of success.  
39.	I would accordingly refuse permission to appeal on the second ground and dismiss the appeal. 

Lord Justice Sales:
40.	I agree.