The case of “Hameed” in the Court of Appeal made an interesting story. Mr Hameed is a Pakistani national and he applied to switch in the UK from Tier 4 student to Tier 2 work permit holder.
As many readers may know, the prospective employer of a prospective Tier 2 work permit holder has to create a certificate of sponsorship (“COS”) for the employee. This is a “virtual document” – ie it exists on a computer database. But, like most things on computer databases, it can be printed out if necessary.
The COS contains various information about the prospective employee and about the position they are applying to take and it is the core part of the employee’s Tier 2 visa application. The COS has a unique reference number which has to be included in the visa application, and this enables to Home Office to access all the information that the COS contains.
In Mr Hameed’s case the Home Office refused the application on the rather serious grounds that the COS was fake – or “false”, as the legal word goes.
He was not quite happy with this and he applied to the Home Office for administrative review of the decision. The Home Office administrative reviewer exonerated Mr Hameed from any wrongdoing personally; the dishonesty was deemed to have occurred elsewhere. But they still upheld the refusal decision.
However, this was not entirely a bad result because administrative review is not widely known as a good or thorough remedy. So at least Mr Hameed did not any longer have a black mark for deception and dishonesty on his record.
But of course he was still left with a problem. His application had been refused under a rule which had the following wording. An application is to be refused “where false representations have been made or false documents have been submitted (whether… or not to the applicant’s knowledge)”.
The words “whether… or not to the applicant’s knowledge” mean just what they say. Even if the applicant is entirely innocent the visa application nonetheless stands to be refused.
He applied for judicial review to the Upper Immigration Tribunal with a view, it would appear, to getting the decision overturned. They would not entertain his application, and he renewed it with the Court of Appeal. The Court of Appeal accepted the case.
One of the grounds Mr Hameed put forward was that the COS was essentially only a number and was neither a “representation” nor a “document”. This was surely a weak argument and, not really surprisingly, the court did not entertain it.
But another argument put forward was rather more complicated: that the Upper Tribunal erred in law in failing to appreciate the dilemma applicants face when a finding of dishonesty is made against them without a proper evidential basis, now that the statutory right of appeal to the First-Tier Tribunal has been withdrawn.
The latter part of this ground alluded to the fact that the right of appeal to the First-Tier Tribunal has now been lost for points-based system applicants, including Tier 2 applicants. Everybody knows that an appeal is a better remedy than an administrative review. But the first part of the ground was also somewhat flawed because the Home Office had already deemed, in its administrative review decision, that Mr Hameed was innocent of any wrongdoing.
Nonetheless it seems that the court had some sympathy with him: “He was as much a victim [of] the system from the actions of a third party.” But, overall, the court did not think it could help him. Because the Home Office had withdrawn the allegation of dishonesty “There is no longer a wrong to be remedied.”
Indeed, it is difficult to see how the court could have allowed Mr Hameed’s challenge. If they had quashed the Home Office’s decision – as a judicially reviewing court is able to do – what then? The court did not tell us any details about the fake COS (which was rather a shame) but the implication seemed to be that the prospective employer had provided this fake document. Mr Hammed could surely hardly have started to work in a job offered by a Tier 2 sponsor on the basis of a dishonest COS?
In any event, apart from these confusing issues, one thing emerged clearly, and if there was any doubt on this subject it has now been dispelled. If in your immigration application there is – unbeknown to you – a fake document it stands to be refused and there is not a lot you can about it.
So you do need to be very careful about who you do business with and if in this kind of situation the Home Office does accuse you deception you should get a good lawyer on your side.