The first of these is a useful short case that came out while I was away called Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 (IAC). It is another example of an applicant with a driving conviction who ticked the ‘no’ box to the question about previous convictions standard on all immigration application forms. As previously discussed, even Home Office policy guidance recognises that mandatory refusal is not necessarily justified on such facts. In this case the applicant’s evidence was that she did not realise she had been convicted because she had not received any further communication from the police about her case.

As is standard in paper appeals, the Home Office did not engage with the case and did not seek to challenge or disprove the applicant’s evidence. Nevertheless, the judge at first instance somehow found that the Home Office had discharged the burden of proving dishonesty.

The finding is overturned at the Upper Tribunal:

25. On analysis we believe that the way in which the burden of proof operates is as follows. We accept that if an application form is false in a material way, that this may be relied upon as some prima facie evidence which assists in establishing dishonesty. The inference of deliberate deception can be strengthened by reference to other facts, for example if the conviction is shortly prior in time to the completion of the application form this will furnish circumstantial supporting evidence that the conviction must have been high in the applicant’s mind and any explanation based upon oversight would carry little weight. However, this is not dispositive of dishonesty and it is open to an Appellant to proffer an innocent explanation. If an innocent explanation is advanced (by which we mean one that meets a basic, minimum level of plausibility) then the burden switches back to the SSHD to answer that evidence. At the end of the day the SSHD bears the burden of proof. This is a proposition which is uncontroversial and has been confirmed on many occasions: eg JC (Part 9 HC395 – burden of proof) China [2007] UKAIT 00027 para 10; MZ (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 919 para 25; Mumu (paragraph 320; Article 8; scope) [2012] UKUT 143 (IAC)

26. Where the appellant’s evidence is not met, a Tribunal should be slow indeed to find dishonesty, particularly without hearing evidence and submissions on the point from the Appellant and/or the SSHD. It must be recorded that a finding of dishonesty can have catastrophic consequences for the applicant in social and economic terms. It is not to be found lightly.

The tribunal finds that if the judge really had reason to be concerned about dishonesty, he should have requested comment by the Home Office or further evidence from the appellant (an approach arguably at odds with the recent case of NA (UT rule 45: Singh v Belgium) Iran [2014] UKUT 205 (IAC)).

Moving on to decide what to do with the appeal, the tribunal takes a pragmatic approach:

We can see no utility or benefit in burdening the FtT again with this matter. The SSHD has had an opportunity to respond to the Appellant’s factual and evidential case and, for good reasons or ill, has chosen not to do so. In the circumstances we consider that it is appropriate to take the decision ourselves.

The second recent deception case is R (on the application of Giri) v Secretary of State for the Home Department [2014] EWHC 1832. In this case a Nepalese student was thought to have used false documents in 2006 and was initially refused entry. Later in 2006 he reapplied, admitted in interview that the documents were false and was admitted. He extended his leave in a series of applications and no point was ever taken about the previous use of deception. However, for some reason in 2011 the Home Office decide to refuse his latest application because of that historic deception. This was justified on the basis of a failure to declare the previous deception.

The applicant challenged the decision by way of an application for judicial review. A witness statement was prepared by the official who refused the application in 2011, which the judge, Mr Justice Robert Jay comments “discloses a somewhat simplistic view of human nature”. Although naive, the decision was nevertheless not Wednesbury unreasonable, the judge concludes.

Interestingly, though, the judge inclines to accept the applicant’s submission, made by Mr Zane Malik, that a Wednesbury review is not the right one, and that the issue of past deception is instead a Khawaja question of precedent fact. On that analysis, the applicant had in his out of time very recent witness statement evidence, with the assistance of his lawyers, shot himself in the foot by disputing the original 2006 interview evidence. That led inexorably to a conclusion that he had dishonestly answered the question, thereby triggering mandatory refusal.

The judgment ends with a suggestion that although the judicial review application must fail, a more senior official at the Home Office should look at the case given the Home Office acquiesce to entry in 2006 in full knowledge of the deception.