Even More Deceptively Simple

This article considers the position where an application for leave to enter or remain in the United Kingdom may be refused under may fail under the second limb of para 322(1A) of the Immigration Rules:

(1A) where ... material facts have not been disclosed, in relation to the application.

The introduction of new mandatory grounds for refusal has been a controversial area in immigration law, particularly because of the harsh construction which the courts have previously applied. The increasing length, detail and complexity of immigration application forms, has led inevitably to an increase in the number of applications rejected on the basis of incomplete information provided. Employers and skilled migrants should take exceptional care to avoid these pitfalls, and the protracted litigation which can follow.

Current authority

The Tribunal in FW (Paragraph 322 untruthful answer) Kenya UKUT [2010] 165 (IAC) considered the second limb of Paragraph 322 (1A) of the immigration rules, which is engaged when an Applicant fails to disclose a material fact in an Application. The Court of Appeal in AA Nigeria [2010] EWCA Civ 733 found that a false representation must involve an element of deceit, whether by the Applicant themselves or a third party acting on their behalf (see our previous article LINK). Whilst the Court in AA did not expressly consider the second limb, the reasoning which underpinned the Court's decision will, arguably, be equally relevant to cases of non disclosure. In this article we explore whether a finding of dishonest intent will be a pre requisite a finding that a material fact has not been disclosed. It should be noted that the decision in the Court of Appeal in AA was promulgated after the decision in FW, and the Upper Tribunal may have reached a different decision had the authority if AA been available to them.

The question then arises, what is actually material to an Application? The Upper Tribunal adopted a broad brush approach to the issue when the Appellant before them was found to have deliberately withheld convictions for driving with excess alcohol, in a mandatory field of an application form for an extension of leave to remain.

It is not for a person who has untruthfully answered a direct question in an application form to assert that the answer was not material in any event. If it was not material, it is difficult to see why the question should have been asked. There is no basis on which it can be said that in making a...