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Meaning of ‘false representation’: AA Nigeria case


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The Court of Appeal has adopted a helpfully limited approach to the meaning of ‘false representation’ in Immigration Rules 320(7A) and 322(1A), restricting it to cases of deliberate falsehood rather than accidental mistake. The case is AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 and the outcome is completely opposite to the tribunal’s consideration of the same issue in FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC). It really is remarkable how often the tribunal adopt the most restrictive possible interpretation and how often the higher courts disagree. It rather starts to call into question the judgment of some senior members of the tribunal.

Lord Justice Rix in the leading judgment notes that there are two meanings to ‘false’, one of which is ‘incorrect’ and the other of which is ‘dishonest’. The Immigration Minister of the moment, Liam Byrne, stated that the former definition was intended, there are good legal grounds for following the less expansive approach and there are also good commonsense and humane reasons for following such an approach.

An immigration judge will therefore have to assess not only whether a representation was factually inaccurate but also whether it was made deliberately in order to mislead, rather than inadvertently and by mistake.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


7 Responses

  1. IJs were deeply unhappy about the restrictive definition and were doing their damndest to get round it. So I have only four things to say about this CA judgment

    1) Thank God!
    2) Whoo hoo!
    3) Congratualtions to the legal team who brought the challenge
    4) And about bloody time….

  2. It’s a good judgment but while it requires a dishonest mens rea for false reps, it seems there is no such requirement for a failure to mention material facts which appears to remain strict liability.

    1. But at least the non disclosure must be material, which can be argued to be ‘material to the immigration rules under which the application is decided’. That seems sensible to me, and an entirely justifiable public policy stance: if you conceal relevant adverse information your application should be refused.

  3. “..most restrictive possible interpretation .. call into question the judgment of some senior members of the tribunal ”

    Does this call into question the independence with which IJs should be operating within, as well as the quality of decision making by them?

  4. Just in time for an entry clearance appeal where I was going to argue that false reps must have some intent!

  5. I trust freemovement’s did not mean that mere non disclosure of a material fact- even if it is unintentional- should be visited with a refusal.

    People do make mistakes.

    1. Well, FM did use the word ‘conceal’ which would suggest his view is that if you deliberately withold information you should be penalised. I can only agree with FMs comments.

      If it’s unintentional I think we’d all agree that it would be unfair to penalise an applicant/ appellant on that basis.

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