In January 2012 Gherson represented a citizen of the Russian Federation in a successful appeal to the Upper Tribunal (Immigration and Asylum Chamber) against the Entry Clearance Officer (ECO), Moscow.
The appellant had appealed against the decision of the ECO to refuse her a visa to visit the UK in February 2011.
There had been a mandatory refusal by the ECO under paragraph 320(7A) of the Immigration Rules which applies where false representations have been made or material facts not disclosed.
On the application form in response to the question "Do you have any criminal convictions in any country?”, the appellant stated "No”. In fact she had been convicted of common assault and had been fined £125 following a guilty plea. She had received no custodial sentence. At the time of the conviction the appellant was a student lawfully in the UK and she had been defending a friend who was being assaulted by a club bouncer. At the time of her application for a visit visa the appellant’s conviction was not spent.
The Tribunal noted that the guilt or otherwise in relation to the particulars of the offence was immaterial and the fact of the conviction and the failure to reveal it was what the Tribunal was concerned with. The seriousness of the offence is relevant as it was not sufficiently serious to have merited a refusal of the application had it been disclosed, hence it would not have made a difference to the outcome of the visa application.
The Tribunal found that the appellant otherwise met all the requirements of paragraph 41 of the Immigration Rules for visitors to the UK.
The appeal was of considerable importance to the appellant as if a subsequent application were made, paragraph 320(7B) of the Immigration Rules provides that where deception has previously been used there would be a mandatory refusal and a 10-year ban on entry.
The Tribunal set out that in order to become subject to a mandatory refusal under paragraph 320(7)A of the Immigration Rules it has to be established that the appellant acted dishonestly. The burden is on the ECO to establish that dishonesty on the balance of probabilities and it is not for the appellant to prove her innocence.
It was held that the judge in the First-tier Tribunal had erred in law by assuming that the false representation alone established dishonesty. An inference of dishonesty from the facts can be avoided by an innocent explanation.
The appellant’s evidence was that she had honestly thought that because she had pleaded guilty and received only a fine, the conviction would only be on her record for 6 months or so. She had sought advice from a friend and a contact at her university. In addition, her father did not know about the conviction. She omitted to include it with no intention of deceiving the authorities.
It was held that the appellant had been reckless in the way she sought advice about her conviction. However, the issue for the Tribunal was not whether the appellant was reckless but whether she was dishonest.
The Tribunal decided that seeking to gain reassurance suggests that the appellant realised what she was about to do was probably wrong. However, by a narrow margin it was decided that when she completed the form she relied on these statements and did so in the belief that what she was doing was morally justified.
They found that the respondent had failed to prove that she was dishonest.
The previous judge had found that the omission on the application form was the making of a false representation, while the appellant argued that it was in fact a failure to disclose. In failure to disclose, materiality is required and it was common ground that the answer was not material. The Tribunal found it amounted to both.
Finally, it was held that the Article 8 right to family life was not engaged because paragraph 320(7A) does not invoke a 10-year ban whereas paragraph 320(7)B does. Equally, the appellant was engaged to marry an EEA citizen and so would soon derive rights to enter the UK on the basis of her marriage. In EEA law it could not be properly argued that a refusal of entry could be justified on the basis of her criminal conviction