Family Visit Visa Refusal | Family Life with British Citizen | Genuine Visitor | False Representation
Case facts & schedule of issues
An application to the British Embassy was made by the Appellant to visit his British wife in the UK. The Appellant had no intention to overstay or settle in the UK, as he was running his business in Kenya. The main issue was the fact that grounds were raised by the Nairobi British Embassy that the Appellant had provided false information.
The refusal grounds were as follows:
"that the appellant is not genuinely seeking entry as a family visitor for a limited period. Therefore they have not satisfied the requirements of paragraph 41, sub section (i) of the Immigration Rules HC395 whereby the appellants are not genuinely seeking entry as a family visitor for a limited period as stated by them, not exceeding 6 months and paragraph 41, sub section (ii) whereby the appellants do not intend to leave the United Kingdom at the end of the period of the visit as stated by them.
Furthermore, the appellant in line with paragraph 320 (7b) of the Immigration Rules HC395; had provided false representation when interviewed by the Entry Clearance Officer (ECO) in relation to the date he left the UK on his previous entry to the UK."
The Appellant was then given limited right to appeal, as he was married to a British National. In his defence, he confirmed that he had travelled to the UK a number of times since 2002 and held visas. He also complied with all his visa conditions.
Given the grounds of refusal, the Appellant and his wife asked ICS Legal to advise and support on this appeal matter.
Outcome of the matter
The Appellant was asked to provide detailed statement on what happened at the interview and also Sponsor to provide the evidences of the family life. We also asked a number of evidences related to the Appellant's life as well as raising evidences to demonstrate that the issues raised on the interview was wrong.
There was a number of evidences that the Home Office had failed to consider. According to the ECO E. Cunningham, the Appellant had overstayed by 20 days. The Appellant had explained due to severe back problems and the fact he has a slipped disc, which did not allow him to travel from the UK. The Appellant left on April 2006 and the visa expired 10/07/06.
This refusal was important for us to challenge and ensure we can remove the ban that had been applied by the Home Office. We lodged the appeal on time and the matter went before the First Tier Tribunal.
The matter went before the First Tier Tribunal at Hatton Cross before Immigration Judge AJM Baldwin. The determination was promulgated on the 12th of November 2012. In our legal defence, we raised a number of legal grounds as well as presenting the evidences.
We stated to the First Tier Tribunal that it is important to understand the Appellant intention to enter the UK. The Appellant is visiting his wife and children, which confirms their intention and satisfies the requirement that he is a genuine family visitor.
In the context of a family visit, these have to be read in conjunction with s. 60 of the Immigration and Asylum Act 1999 and with the Immigration Appeals (Family Visitor)(No 2) Regulations 2000 which at regulation 2 state:
“For the purposes of section 60(10) of the Act a “family visitor” is a person who applies for entry clearance to enter the United Kingdom as a visitor, in order to visit -
(a) his spouse, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or first cousin;
(b) the father, mother, brother or sister of his spouse;
c) the spouse of his son or daughter;
(d) his stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister; or
(e) a person with whom he lived as a member of an unmarried couple for at least two of the three years before the date on which his application for entry clearance was made” (emphasis added).
At the appeal hearing, we drew the Judge to the Immigration Directorate Instructions (IDI), which is taken into consideration when an application as a visitor is considered.
“A visitor's proposed purpose in coming to the United Kingdom must bear some reasonable relationship to his financial means and his family, social and economic background. Previous immigration history and evidence of a pattern of family migration, both here and abroad, are also matters to be taken into account. If a passenger or his sponsor is shown to have attempted to deceive the immigration officer or some other person in some material respect or where there are material discrepancies between what the passenger and his sponsor say, when the sponsor can reasonably have been expected to know the facts, these are again grounds for doubting the passenger's credibility and not therefore being satisfied as to his intentions.” Source: Immigration Directorate Instructions (IDI), Page 8, Section 2
UK civil law tends to prefer the expression "misrepresentation" to "false representation" in order to emphasise that an untrue representation need not be dishonestly made. Misrepresentations may be innocent, or fraudulent, or negligent.
It appears, however, that in the context of immigration law, "false representation" has been thought of as being used in the first and morally neutral sense of the word. Thus, the following passage occurs in Tahzeem Akhtar v. Immigration Appeal Tribunal [1991] Imm AR 326 at 332/3 per Staughton LJ:
"…a false representation is one that is inaccurate or not in accordance with the facts. I say that, first, from the ordinary use of the English language and, secondly, because it seems to me that that interpretation squares more easily with the words in the rule "whether or not to the holder's knowledge". I agree that there is an alternative explanation for those words being in the rule, that is to say, to cover the case when somebody else has made a fraudulent representation. But to my mind they were inserted to show that representations, either by the holder or by anybody else, need not have been fraudulent…"
The Judge agreed on paragraph 9 of the determination that the Appellant was intimidated by the ECO and found the Appellant & Sponsor credible. Immigration Judge AJM Baldwin provided his findings on paragraphs 18 to 21 and agreed that the decision was wrong. Allowed the appeal. The appeal was allowed under both Immigration Rules and on Human Rights grounds.
The Home Office went on to challenging the decision to the Upper Tribunal, however there was no error in law on the making of the decision and the appeal was allowed.
End.
