R (Wahid) v Entry Clearance Officer [2021] EWCA Civ 346 (25 February 2021)
Following the approach in Balajigari v SSHD [2019] EWCA Civ 673 (discussed here), the Court of Appeal has held that it is arguable that procedural fairness required the entry clearance officer (ECO) to put suspicions of dishonesty to the entry clearance applicant, one Mr Wahid an advocate of the High Court of Sindh, and that UTJ Frances got it badly wrong by thinking that permission should be refused. In 2009, then 21 years old, Mr Wahid was convicted on his guilty plea entered at the first opportunity to a driving offence. He had permitted a friend to drive his car without a licence or insurance. He received a short driving ban and a fine and penalty, both of which were duly paid. He completed his LLB that year and then made an in-time application for further leave to remain as a student. He studied and completed his LLM in March 2011. He was then granted further leave as a student and was then granted a Tier 1 (PSW) migrant until 4 January 2014. While he was travelling from London to Pakistan in July 2012, security officers at Heathrow Airport found a blunt Spanish butterfly knife on a keychain in his bags which was a prohibited item. Security staff apologised when explaining to Mr Wahid that the police needed to be called as a matter of protocol. He was taken to a police station and interviewed. He was not charged. He said that he was informed that no further action would be taken.
The police record database suggested that he was, in fact, cautioned for the butterfly knife incident "for possessing dangerous articles on aerodrome". No written caution, signed or unsigned, (or any copy of such a caution) was submitted in evidence and he left the UK in 2012. In January 2020, Mr Wahid submitted an application for a visitor visa to attend his wife's graduation ceremony in London. He was asked, amongst other things, whether he had ever had a criminal conviction in the UK or a penalty for any driving offence or "a caution, warning, reprimand or other penalty". He answered the question by declaring the driving conviction but made no reference to the butterfly knife incident or to any caution. By sending the form he declared its contents to be true to the best of his knowledge and belief. He said that he was wholly unaware of any caution in respect of the butterfly knife incident at the time of his application in 2020. By a decision dated 5 February 2020, the ECO refused the visa application under paragraph V3.6 of Appendix V of the Immigration Rules on the basis that Mr Wahid had made false representations. The ECO said records showed that he also received a police caution on 6 July 2012 for an unrelated incident to that which he declared. The ECO said it is not clear why he would declare details of the motoring offence but not declare a subsequent police caution. The application was hence refused under V3.6 of the Immigration Rules as Mr Wahid clearly intended to conceal his personal circumstances and his previous police caution in the UK. The ECO was satisfied to a high degree of probability that this false representation was not an innocent mistake and constituted an intention to deceive.
Judicial review
Mr Wahid commenced judicial review proceedings arguing that the ECO's decision was procedurally unfair and irrational. UTJ Kekic refused permission and the application was renewed and UTJ Frances subsequently made a poor decision siding with the ECO, as is typical of many UT judges, and said it was not arguably unlawful, procedurally unfair or irrational. It was said that Mr Wahid accepted the knife was in his luggage and it was a prohibited item. So Mr Wahid's assertion that he did not know that the caution had been recorded against him was not material. UTJ Frances said that an interview or minded to refuse letter would not have altered the factual situation.
Arguments
The parties argued their points in the following way.
Mr Wahid
Mr Wahid submitted that the refusal was at least arguably unlawful and that permission to bring the claim should have been granted. Three central questions had to be considered (i) whether there was procedural unfairness in reaching a conclusion on deception without offering Mr Wahid, an opportunity to give any explanation, (ii) whether the language used by the ECO rationally and safely allowed him to reach the conclusion of deception that he did, and (iii) whether the ECO was entitled to reach the conclusion on dishonesty that he did on the facts; materiality was a consideration tied into this third question. On the first question, the point was advanced that the refusal decision gave rise to an arguable case of procedural unfairness. It was stressed that after AA (Nigeria) v SSHD [2010] EWCA Civ 773, false representations require dishonesty to be established. Mere non-disclosure does not establish that and dishonesty is not a foregone conclusion. Balajigari and R (Karagul) v SSHD [2019] EWHC 3208, at paras 102–103, lay down the general principles setting out the procedural safeguards that decision-makers must adopt when alleging dishonesty.
The ECO's suggestion that these procedural safeguards do not apply to applications for entry clearance was both flawed and dangerous. It was not right to seek to undermine the importance of entry clearance decisions. The key question was the quality and nature of an allegation of dishonesty which carried serious consequences and tainted and infected any subsequent application or any second subsequent application by way of re-application for a visitor visa. Karagul provided two key "take-aways". First, it showed that the SSHD's previous attempts to refine Balajigari and narrow its principles have failed in the past and it identified the position that an opportunity to respond should be given where suspicions of dishonesty are in play. The contention that there was a clear distinction between entry clearance and leave to remain applications was a bold one and the reality was that student applications can involve interviews when allegations of dishonesty were not even in play.
Mr Wahid said that the ECO had misplaced reliance in authorities which were against him and R (Taj) v SSHD [2021] EWCA Civ 19, discussed here, did not assist him and showed that the impact of a hostile environment was not a driving force in the court's reasoning – in Taj the PBS applicant had an interview and the relevant authority undertook a site visit. The issues in Taj did not relate to veracity or honesty but rather went to the credibility and viability of the business that was under scrutiny. R (Topadar) v SSHD [2020] EWCA Civ 1525, discussed here, could be distinguished on the facts and there was no suggestion of the making of any adverse findings against the applicant. UTJ Frances had misunderstood the true position and considered the question of procedural fairness from the wrong angle. The question was Mr Wahid's state of mind. UTJ Frances made a clear-cut error. It was legally wrong to treat the fact that he was unaware of the caution as being an immaterial consideration.
As for the second and third grounds relied upon for Mr Wahid, namely the language used in the refusal decision and rationality, he said that the decision revealed an impermissible leap of logic from a lack of clarity as to the motive for the non-disclosure to a finding that the non-disclosure displayed a clear intention to conceal. It was wrong for the ECO to say that there was no clear motive but then to go straight to a finding of dishonesty. Moreover, the refusal revealed the error identified in AA (Nigeria), i.e. a leap from a finding of non-disclosure to a finding of dishonesty without more. It was possible that Mr Wahid was, as he contended, unaware of the caution at the time. Indeed, it was not clear, by reference to the language of the refusal decision (in line with Balajigari at para 211) that the decision-maker properly understood that non-disclosure did not necessarily equate with dishonesty.
As to rationality, materiality was relevant. If the disclosure of the caution would not have had an identifiable adverse impact, then there was no motive for non-disclosure. Absence of motive underpinned the cogency of the overall evidence before the ECO. If the caution was a minor matter it would have made no difference. The ECO needed to ask himself or herself if there was sufficiently cogent evidence. The fact that there has been no attempt to identify any material impact from disclosure of the caution was relevant. Mr Wahid had a general standing and the background of his career to add.
The ECO
The ECO resisted the appeal and counterclaimed that the position is unarguably that the procedural fairness requirement relied upon by Mr Wahid did not exist for four reasons, in each instance contrasting the position with in-country applications: first, refusal of entry clearance does not change a person's status; second, refusal does not prevent an applicant from making a fresh application without serious consequences; thirdly, in a case such as this, the ECO does not rely on information provided by a third party that is in some way outside the applicant's knowledge or where the applicant would face serious difficulty in identifying the areas of concern – in the absence of any such real difficulty, the obligation to consult or afford the opportunity for representation does not exist; fourthly, refusal of entry clearance is mandatory and does not involve a discretionary balancing exercise.
These were all distinctions that can be drawn between an application for entry clearance and an in-country application for leave to remain. The ECO stressed there is no authority which suggests that the approach to entry clearance applications is the same as that to be adopted in the context of in-country applications. Balajigari did not lay down any general broad principle applicable in all situations. Balajigari, on its facts, did not even assist Mr Wahid as his circumstances were quite different. He was not in the UK and the refusal of entry clearance did not change his circumstances. He could have made a fresh application without risk of committing any criminal offence, for example, as an overstayer.
The ECO relied on R (Pathan) v SSHD [2020] UKSC 41, discussed here, as support for the proposition that what procedural fairness requires is always context and fact-specific and also on Taj which the ECO claimed did not help Mr Wahid. Similarly, it was said that Karagul failed to assist Mr Wahid as the court was looking at refusals of applications for leave to remain as business persons. The facts here were important and Mr Wahid had a detailed application form, clear on its face which Mr Wahid would have understood, not least as a lawyer that it was essential for him to provide full and accurate details. It was reasonably open to the decision-maker to find that deception had been used and the ECO made a clear finding of deceit and normal public law principles of rationality fell to be applied as set out in R (Giri) v SSHD [2016] 1 WLR 4418.
The Court of Appeal
Richards, Henderson and Carr LJJ disagreed with UTJ Frances and with the submissions advanced on behalf of the ECO. Carr LJ observed that the wording of paragraph V3.6 of Appendix V of the Immigration Rules provided that false information in relation to an application will result in refusal in cases where: (a) 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 (b) material facts have not been disclosed in relation to their application or in order to obtain documentation from the SSHD or a third party provided in support of their application. AA (Nigeria) made it clear at para 43 that the term "false" in the present context carried the meaning of dishonesty and not merely inaccuracy. It must be a deceitful representation. Mere non-disclosure will not suffice. Accordingly, UTJ Frances was totally off target and Carr LJ held:
31. In my judgment, the Judge fell into error in the penultimate sentence of paragraph 6 of his decision. He failed to consider the position from the perspective of Mr Wahid's state of mind and, in particular, the question of his honesty. The requirement of procedural fairness depend upon the facts and the context in which a decision is taken, including the nature of the legal and administrative system within which the decision is taken (see R v SSHD, ex parte Doody [1994] AC 531 (at 560 D-G) and Taj (at [50]).
32. I am persuaded … that it is arguable that, where an ECO harbours suspicions of dishonesty, procedural fairness requires the applicant to have the opportunity to respond. The Judge was wrong to conclude otherwise. This is an important point which does not appear to have been considered directly in any of the authorities to date.
The circumstances of the appellants in Balajigari were very different to Mr Wahid's and the very serious consequences of refusal of indefinite leave to remain for those appellants played a very important part in the Court of Appeal's judgment that procedural fairness required the opportunity to make informed representations. In the instant case, Mr Wahid was applying for a short visitor visa to enter the UK as a tourist. He could also have made a second application. On the other hand, and as the court in Balajigari also recognised, a finding of dishonesty is a particularly serious matter going to a person's character. Carr LJ judged as follows:
34. It seems to me that these are matters worthy of further debate by reference to full argument and consideration of all the relevant authorities and underlying principles in play.
Her Ladyship also granted permission on the second ground of claim, irrationality, on the basis that it was arguable. UTJ Frances was wrong to conclude otherwise. It was right to say that it was possible to read the sentence in the refusal to which particular importance was attached – "……. it is not clear to me why you would declare details of a motoring offence of 04/04/2009 but not declare a subsequent police caution on 06/07/2012 …." as being no more than a reference by the ECO to the absence of any plausible or innocent reason to declare the driving conviction but not the caution. However, it appeared to the Court of Appeal that the debate on ground 1 may be informed by consideration of at least some of the issues that may arise under ground 2 and, accordingly, Carr LJ was persuaded to grant permission on the second ground as well. Her Ladyship concluded that:
36. For these reasons, in my judgment, the Judge was wrong to conclude that the judicial review proceedings carry no real prospect of success. The claim has a real prospect of success. I would therefore allow the appeal.
Richards and Henderson LJJ both agreed with Carr LJ and the application was granted.
Comment
Ever since AA (Nigeria) was decided in 2010, it has been clear that "false" in the context of visa applications carries the meaning of dishonesty and not merely inaccuracy. It must be a deceitful representation and mere non-disclosure will not suffice. Balajigari seems to have fortified that position and so just refusing Mr Wahid's application for a visa without letting him explain his side of the story was a very costly mistake for the ECO to make as the court held that procedural fairness required the ECO to put suspicions of dishonesty to the applicant first before going ballistic. As a practising advocate of Sindh High Court, I would like to congratulate Mr Wahid and his legal team headed by Mr M Zahab Jamaili about their victory in these proceedings and I hope that they will get every last penny out of the government in relation to their costs.