On 29 April the Home Secretary, Amber Rudd, resigned after admitting that she had “inadvertently misled the Home Affairs Select Committee over targets for removal of illegal immigrants” from the UK. A few days previously she had told the committee that there were no removal targets. A letter from Rudd to the Prime Minister and a memo sent to her department, both of which dated from last year and referred to removal targets, were later leaked to the Guardian. It was announced on 30 April 2018 that, following Rudd’s resignation, Sajid Javid has been appointed Home Secretary (the first person from a black or ethnic minority background to hold such a senior position in government).

Sajid Javid MP @SajidJavid becomes Secretary of State for the @UKHomeOffice

— UK Prime Minister (@10DowningStreet) April 30, 2018

The new man paid tribute to his predecessor in the House of Commons yesterday and the Prime Minister noted that Rudd had answered the question about targets “in good faith”. Rudd stays on as an MP and is expected to be influential on the back benches.

Unfortunately for many migrants, Rudd’s department adopted a somewhat less lenient approach to factual errors during her tenure as Home Secretary. When somebody makes a mistake on an immigration application form, the Home Office’s response is rarely to accept that there has been an honest mistake or that the applicant has “inadvertently misled” the Home Office. It is usually assumed that the applicant was maliciously lying and they are subjected to a ten-year ban from the UK.

Paragraph 320(7A) of the Immigration Rules requires an application to be refused “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” (i.e. the applicant has lied).

A similar power to refuse future applications, on the basis that deception was used in a previous application within the last ten years, is contained within paragraph 320(7B). This power is slightly more restricted: the proviso “whether or not to the applicant’s knowledge” is omitted from the definition of “deception”. The existence of these provisions is not particularly objectionable; it is perfectly understandable to penalise those who lie in their application. However, as previously noted on Free Movement, the Home Office often applies these provisions in an excessively restrictive and oppressive manner.

The Court of Appeal held in AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 that deception, as defined in the Immigration Rules, requires dishonesty. Making an honest mistake is not deception and should not lead to refusal.

This has been taken one step further by the Upper Tribunal which suggested in Ozhogina and Tarasova (deception within para 320(7B) – nannies) [2011] UKUT 00197 (IAC) that the false statement must have been deliberately made for the purpose of securing an advantage in immigration terms (even if in reality it was not material to the application, this must have been the intention).

If the Home Office applied this case law correctly, it would not refuse applicants who have “inadvertently misled” an Entry Clearance Officer by, for instance, failing to disclose a speeding offence because they did not realise that even minor criminal offences have to be mentioned in applications.

A similar mistake is often made in relation to the immigration history questions within an application form. Many applicants do not realise that, even if they leave the UK within the permitted 30-day (formerly 90-day) period after refusal, they are still an overstayer and need to declare this in future applications. Such errors are often innocently made and should not be treated as deception. Yet decision makers are rarely willing to accept that any misleading information was provided entirely inadvertently (i.e. without the intention to deceive).

I will leave it to others to decide whether Amber Rudd’s misleading statement to the Home Affairs Committee was genuinely “inadvertent” or whether it was an attempt to deceive. If she was subjected to the suspicious and capricious judgement of the officials who make decisions in her name, I expect it would be put down as the latter.

If Rudd had been making an immigration application rather than giving evidence to a parliamentary committee, she would now be facing a ten-year ban from the UK rather than an honourable, and perhaps temporary, discharge from the Cabinet.