In FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC) Mr Ockelton has on behalf of the tribunal adopted a strict approach to the meaning of deception under the general grounds for refusal.

The appellant had ticked the box on the VAF asking whether he had any criminal convictions. In fact he had a conviction for a traffic offence. He was refused under rule 322(1A) on the basis of non disclosure and false representations. This rule is very broadly drafted:

“(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.”

The headnote (written by the tribunal reporting committee) arguably goes further than the determination does. I have come across a number of entry clearance cases where there has been similar non-disclosure or false representation where the case must be refused under rule 320(7A) and there is no way round that. Rule 320(7A) is very broadly drafted indeed. However, the person is then refused in future applications on the basis of rule 320(7B) for a period of ten years. The headnote appears to catch these people out whereas the determination addresses only 322(1A).

If ticking the wrong box was a mistake, a ten year ban is a very harsh penalty indeed. There is a difference between ticking boxes on a lengthy application form in a foreign language and actively attempting to conceal or mislead if directly asked in person.

In dealing with permission in SA (Pakistan) v SSHD [2009] EWCA Civ 1510 Sir David Keene had thought there was room for some manoeuvre.