False documents used in Tier 1 general application:

The case of Kulasekara v Secretary of State for the Home Department [2011] EWCA Civ 132 (18 February 2011)

This case involved an appeal from Sri Lankan citizen Sidath Don Kulasekara, whose earlier appeal was dismissed by Senior Immigration Judge Jarvis under the Immigration Rules and Art. 8 of the European Convention of Human Rights in March 2010. At issue were false representations regarding diplomas and completion of the course.

Background of the case

The appellant applied for leave to remain in the UK as a Tier 1 (General) Migrant in June 2009. This was refused on the ground that he had submitted a false postgraduate qualification from the Cambridge College of Learning (CCOL) in a previous application.

An appeal and order for reconsideration against this decision was allowed by Immigration Judge Callender-Smith. The respondents sought and subsequently obtained reconsideration. The appeal was then heard by Senior Immigration Judge Jarvis, who considered paragraph 322(1A) of the Immigration Rules (HC 395), which states that leave to remain ‘is to be refused’ – 

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

She additionally used the decision in AA (Nigeria)[2010] EWCA Civ 773 which held that ‘false’ in this Rule means ‘deliberately false’ and therefore the representation of information must be made deliberately and be known to be false.  

Judge Jarvis focused also on NA and others (Cambridge College of Learning)[2009] UKAIT 00031, wherein the Tribunal concluded that CCOL had issued false certificates, and that somebody claiming to have undertaken a Business Management course at CCOL must have known it to be false. The Tribunal used witness statements from Saamia Ullah, head of department for business and management at CCOL, to reach their conclusion.

The Senior Immigration Judge noted the lack of evidence that Kulaserkara had paid the course fee. Kulaserkara claimed that he had paid in cash, but there was no evidence of that transaction. The Judge commented on the unlikelihood that the fee would be paid in cash with no receipts given. 

It was also noted that some evidence produced for the appellant was to his detriment. For instance, he provided two diplomas in hotel management that overlapped with the time when he claimed he was studying at CCOL.

The Senior Immigration Judge held that Kulaserkara’s claim was improbable and she rejected the certificate and transcript produced.

The case for the appellant

The appellant claimed in this instance that the certificates and transcripts supplied in the application were genuine and were issued after successful completion of the course at CCOL.

He further claimed that he had enrolled for the Executive Management course, but claimed that CCOL later informed him that the name of the course had changed to Business Management.

It was submitted that there was insufficient evidence before the Senior Immigration Judge to justify the finding of fraud. The finding was therefore not justified.

The case for the respondent

The respondent claimed that Kulasekara had not completed the course or even taken the examinations. Therefore, the diploma and Transcript were false.

They submitted that, as was the case in the decision of the prior instance, had Kulasekara not completed his course, then he must have known the documents were false and he should therefore be refused the right to remain.    

The appellant also provided no documentary evidence in support of his case for the Senior Immigration Judge apart from the diploma, the ‘Transcript of Academic Record’, and some photocopies of hand-written course notes (which were produced late).

Conclusion

Stanley Burnton LJ held that the appellant’s submissions had no substance. There was in fact adequate evidence, based on oral testimony, witness statements and documents, before the Senior Immigration Judge to justify her decision.

Especially notable is that the defendant had much less documentation than someone in his position would be expected to have.

He also held that it was not necessary to bring in the witness who testified in NA as it was intended to be a precedent determination. Kulasekara would have therefore deprecated a request to re-examine the witness had one been put forward, unless there were different matters to be put to her that were not in the previous case.

The judge upheld the view of the Senior Immigration Judge that had Kulasekara not completed his course, the misrepresentation must have been deliberate.

The unlikelihood of the documents being genuine was sufficient enough to justify the decision of the Senior Immigration Judge.

Outcome

The appeal was dismissed on those grounds.

February 2011