In Chanda v Secretary of State for the Home Department [2018] EWCA Civ 2424 the Court of Appeal grappled with paragraph 322(1A) of the Immigration Rules. The court looked briefly at the considerations that arise out of a false document and a finding of deception, stressing that the two issues are separate.

The relevant rule is probably familiar to most practitioners. Applications are to be refused:

(1A) 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.

Mr Chanda had made an application for leave to remain under Tier 2 of the Points Based System. He submitted a degree certificate from University College London, claiming to have a BA in business management.

Home Office checks with UCL confirmed the certificate had not been awarded. Furthermore, the university had no record of the appellant having graduated. The application was refused based on the use of a false document and deception, the latter preventing return to the UK for 10 years.

The appellant did not attend the First-tier Tribunal due to ill health. The judge was satisfied on the evidence provided by the Home Office that a false document had been used and deception made out.

On appeal, the Upper Tribunal was unimpressed:

The Secretary of State has made an allegation and has supported it with evidence which the appellant has not attempted to contradict. In the circumstances, the appeal is dismissed.

Nevertheless, permission to appeal was granted by the Court of Appeal.

Deception should be considered separately to a false document finding

On the issue of the false document the court found agreed that the evidential burden had been discharged by the Home Office. Mr Chanda, despite being given the opportunity, had not provided any evidence to suggest that he had undertaken any study at UCL to justify the issue of the certificate.

Accordingly, I consider that the FTT and the UT were right to say that, in the absence of any evidence to support the appellant’s bare denial of the contents of the letter from the University of London, the respondent had properly discharged the necessary burden of proof as to the falsity of the certificate. To the extent that the appellant seeks to challenge that finding in this appeal, I reject it.

Lord Justice Coulson cited earlier Court of Appeal authority for the proposition that

whilst evidence of deception is required for a false representation, the use of a false document is itself a deception and, in the words of Rix LJ, “a sufficient reason for a mandatory refusal”. To the extent that the decision of the UT in R (Ali Ahmed Agha) v SSHD [2017] UKUT 121 (IAC), a case to which we were very briefly taken during oral argument, suggests a blurring of this distinction, then I consider it to be wrong. In any event, on a proper analysis, it seems to me that the decision in Agha is explicable on its own particular facts.

I am not so sure about the formulation “the use of a false document is itself a deception”. A false (dishonest) document itself is a reason for refusing, but not necessarily a reason for finding deception has been used.

That is demonstrated by the fact that the court went on to consider the deception point separately, criticising the tribunals below for failing to do so in a meaningful way:

It appears that both the FTT and UT approached the separate issue of deception on the unstated assumption that, in the absence of any explanation of the false certificate, and the appellant’s attempted reliance upon that document, the respondent had been entitled to make a finding of deception. They did not expressly address the issue. In my view, since it was a separate finding by the respondent, and thus part of the appeal to the FTT and the UT, they should have done.”

Here too the evidence justified a finding of deception, but Lord Justice Coulson remarked that in a different factual situation using a false document may not lead to the same conclusion:

In some immigration cases for example, an applicant may be seeking leave to remain on the basis of a document which, unbeknown to the applicant, has been forged by a third party. There the falsity of the document has been established, but not necessarily the deception of the applicant. But it is very difficult to see how such a distinction could arise in a case of this sort: the applicant has always known that he was not an internal student at the University of London but has sought to rely on a document which stated the contrary.

Most striking about this litigation in my eyes is the time and effort spent by the appellant, respondent and courts on a matter that factually appeared to have no merit.