UTIAC (1) In terms of the approach that a tribunal should adopt towards decisions of the Secretary of State in which dishonesty or deception is alleged against an applicant for leave to remain, the starting point should be, as the Court of Appeal in Adedoyin (formerly AA (Nigeria) v SSHD) [2010] EWCA Civ 773 have made clear, that pursuant to paragraph 322 of the Immigration Rules, the reference to ‘false’ means ‘dishonestly’ false.
(2) Where an application form etc is false in a material way, this may be relied on by the Secretary of State as prima facie evidence establishing dishonesty. The inference of deliberate deception can be strengthened by other facts: eg if a criminal conviction (not disclosed in an application) occurred shortly before completion of the application form. Here, the conviction must have been high in the applicant’s mind and any explanation based on oversight would carry little weight. But it is always open to an appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the burden switches back to the Secretary of State to answer that evidence. At the end of the day the Secretary of State bears the burden of proving dishonesty.
(3) The internal organisational decision by the Secretary of State not to engage with paper appeals means that the appellant’s evidence goes unchallenged. In that regard, it must be remembered, that in the absence of evidence from the Secretary of State putting the appellant’s prima facie plausible explanation into doubt, it would be wrong to find dishonesty. Thus, in view of the possible evidential difficulties confronting a judge when deciding a paper application, where the appellant’s evidence is not met (see para (2) above), a tribunal should be slow to find dishonesty, particularly without hearing evidence and submissions on the point from the appellant and/or the Secretary of State.
(4) A finding of dishonesty can have catastrophic consequences for the appellant in social and economic terms and is not to be made lightly. Thus, in a paper case, if a judge entertains doubts as to the appellant’s account, he or she should be mindful of the powers of rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to give directions regarding supporting documentary evidence, or for the Secretary of State to respond to the appellant’s evidence as she considers appropriate.
Green J, Goldstein UTJ
[2014] UKUT 236 (IAC)
Bailii
England and Wales
Immigration
Updated: 16 December 2021; Ref: scu.534245
