Home Office U-Turn on PhD Student’s Entry Clearance Visa Application
HHD received instructions from an American student who wished to take up PhD studies at an NI University. The Client had received a prestigious offer and her application for Entry Clearance was accompanied by outstanding references.
The Client had drafted and submitted her Visa Application online from the USA. She had not sought any legal advice before doing so. The Entry Clearance Application was refused because she had not declared that she has received a Police Caution in 2010 for a minor shop lifting offence when she was around 18 years old. This resulted in not only the present Application being refused but had the consequence of future Application for Entry Clearance being refused for a period of up to 10 years. The Home Office sought to rely on the client’s apparent ‘deception’ in failing to declare the Caution.
The Client proceeded to seek an Administrative Review of this decision. She candidly explained that she did genuinely misunderstand that she was required to declare a Police Caution which she received many years before. She assumed that it had been wiped from her record because the Police had advised her in 2010 that it would be kept on record for a period of 6 years. As the 6 year period had expired, she assumed that her record had been expunged. She also carried out research online which confirmed this and she referred to the relevant link. She further explained that she was highly embarrassed by the offence and had tried to put it behind her which she thought she was legally entitled to do. She set out the details giving rise to the Caution which was effectively a childish prank when she was much younger.
The Administrative Review was refused by the Home Office on the basis that… ‘the question on the visa application form, however, now specifically mentions that a Caution is included in the list of penalties relating to criminal offences and does not mention a time scale as to when they no longer need to be declared’.
There was no further Right of Appeal against the refusal of the Administrative Review. There were serious consequences for this client. She was unable to take up her studies in NI and for a period of up to 10 years any future applications for Entry Clearance were likely to be refused. Furthermore, there was an additional blemish on her record in that she had effectively been accused of Deception by the Entry Clearance Officer.
HHD Solicitors sent a Pre-Action Protocol letter to the Home Office that both the Administrative Review and the Entry Clearance Officer decision were plainly vulnerable to challenge by way of Judicial Review.
We relied upon the Decision of Ahmed (general grounds of refusal – material non-disclosure) Pakistan) v Secretary of State for the Home Department [2011] UKUT 00351 (IAC) – in this case the Appellant use his Oyster Card on a train journey where it is not valid for travel on that route. He received a ‘Notice of fine and Collection Order’ sent to him by a Magistrate’s Court. He paid the fine and had a conviction. He did not realise this was a conviction and he answered ‘No’ in the box to the question ‘do you have a criminal conviction’ on his application for leave to remain. The Upper Tribunal (Immigration and Asylum Chamber) underlined the need for dishonesty (paras. 14 – 15):
“…. In many, if not most, false representations and material non-disclosure will be opposite sides of the same coin. If the applicant has failed to disclose a material fact he will also have made a false representation, and vice versa. Of course, at the time when the Upper Tribunal ‘reported’ FW Kenya it was thought to be irrelevant whether the applicant had intended to deceive or had made an honest mistake. Thanks to AA (Nigeria), we now know that the applicant’s state of mind is crucial to determining whether he made false representations. Where material non-disclosure is the opposite side of the same coin, it would be illogical, and indeed unfair, if the applicant who had honestly made an incorrect representation could nonetheless have his application refused, and his appeal dismissed, on the basis that he had not disclosed a material fact”.
It was also submitted that the decision makers erred in their application of Rule 320 (7A) if the Immigration Rules as well as acting contrary to Section 6 of the Human Rights Act 1998 in that the Decisions breached the Applicant’s right pursuing to Article 8 ECHR and Article 2 of Protocol NO.1 of the ECHR (Right to Education).
The Home Office responded to the Pre-Action letter indicating that the original decision of the Entry Clearance Officer would be expunged from the client’s record and any reference to deception against her would also be removed. The client was therefore in a position to make a fresh visa application resulting in her taking up her prestigious placement.
Should you require assistance regarding visa applications or any other immigration advice, please contact our Immigration Department at HHD.
Charlene Dempsey