Last week as a direct access immigration barrister I was at the First Tier Tribunal at Hatton Cross where the Tribunal Judge had to consider whether to allow the appeal on 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 had not been disclosed, in relation to the application. As anyone practising in this field will know these cases are almost impossible to win, the following story is an example of how a case can be won with proper advertising, proper proper preparation and proper presentation.
The background to the case was
The main Appellants were nationals of India and came into the UK in 2006 on a student visa. He switched to a Tier 1 visa after his studies. He was joined by his wife as a dependent on him in 2011. On 2 March 2015, they applied for Indefinite Leave to Remain (ILR) as Tier 1 (General) and as a dependent. They had a son of 22 months old at the time of the hearing.
The Secretary of State refused this application for leave to remain on the grounds that the main Appellant (hereinafter referred to as my client) had used documents to support his application in the sense that he had falsified his income from his self-employment from IT Verticals and had provided bank statements purporting to represent payments received for work undertaken It was the case of the Secretary of State that he had not in fact undertaken any work for IT Verticals but had been paid in order to deceive the Home Office. The sole purpose of this was to obtain a visa, said the Secretary of State.
I appeared for the appellant and his family in this appeal. I was appealing under article 8 and what concerned me in particular in this case was that IT Verticals was involved in a series of fraudulent dealings and was the subject of an enquiry by the Home Office. In fact, Operation Cudgedong – the enquiry carried out by the Home Office- revealed some 100 Tier 1 applicants of Indian Nationals who have been recycling cash through IT Vertical. The investigation showed that IT Verticals does not undertake any legitimate trading and the bank accounts are funded primarily by cash deposits into the accounts. The monies paid into the bank accounts are then paid out to individuals as invoice payment for ‘work undertaken’. A very serious allegation.
I argued that the allegation that my client was dishonest was unlawful and that the proper standard of proof was not applied. My submissions were to the effect that the documents produced on Operation Cudgegong did not make any mention of the name of my client, that the work carried out by my client was genuine. It was an uphill battle as my client had received payment from IT Verticals- therefore showing he was involved with this ‘dubious’ company. I was pleased that my client could explain in detail how the SAP videos were made, thus buttressing my submission that he did in fact carry genuine work for IT Verticals. The other loophole in that case was that my client did not keep any record of the videos he produced for IT Verticals, neither did he keep any receipts, contracts or emails. I made lengthy submissions making reference to various case law.
I further reminded the judge that according to AA Nigeria [EWCA] Civ 773 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. I emphasised the argument on ‘deliberately mislead’.
I pointed out to the judge that on the evidence before him, the fraudulent activities of IT Verticals started out in 2010 whereas the payment effected to my clients were made in 2009. So there was an underlying assumption that rogue individuals might have taken over the company after 2009. Something which the Home Office did not deem fit to look into.
In his decision in favour of my client, the judge noted that the burden of proof was not discharged by the Secretary of State. The judge stated that albeit there are various suspicious reports from IT Verticals, they do not suggest that my client was being dishonest. The appeal was allowed and I received a pleasant email this morning from a satisfied client thanking me and my team. The battle goes on as it was only an appeal hearing. More on this in my future blogs.
Following the case of AA Nigeria, to which I made reference to in my submissions, there have been lots of controversy around the meaning of the word ‘false and ‘dishonest’. A look at the dictionary will reveal that the word ‘false’ has many meanings in the English language. The question before the Court in the case of Nigeria was whether the word ‘false’ meant incorrect or wrong but further exploring the nuances of the language, the Court had to look into whether the word could also connote treachery, falsehood or even deception, sham and the like. This is of particular interest for a direct access immigration barrister like myself who has been practising in this area for 15 years now. I have encountered clients who, inspite of themselves, have been caught in some fraudulent web or activities. Lord Justice Rix in his leading judgment notes that there are two meanings to ‘false’, one of which is ‘incorrect’ and the other of which is ‘dishonest’ but also added whether the dishonesty was known to the appellant or whether the representation / document was made or produced with the intention of deceiving. It was stated that 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.
The Court observed that while the civil law focused on misrepresentation which can be innocent, negligent, or fraudulent, under the criminal law to establish mens rea (“something more than mere inaccuracy”) was required. Immigration law falls in the middle somewhere. I sincerely hope that this is the trend that will be adopted in future Court decisions in this area and that future cases will hinge on whether or not it was to the applicant’s knowledge.
The moral for this case is that even if you have fallen foul of one of the scams out there and find yourself an innocent victim you can with proper representation get out of trouble and win. Please do not hesitate to contact me or my team and we will arrange to get you in as soon as possible.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, WC1r 5ET, he also practises from Goldsmith Chambers, the chambers of Anthony Metzer QC and is licensed by the Bar Council to litigate and to provide advice and representation directly to the public.