Non-Disclosure - Could this stated scenario amount to Fraud?

Hi Everyone,

I need assistance to know if this scenario amount to Fraud.

Scenario
Lets say Court Hearing took place on 3 February 2020
Draft Judgment sent to the lawyers on 10 February 2020
Judgment Handed Down on 12 February 2020

Statement of Changes in Immigration Rules lets say presented to parliament on 13 February 2020. If the information contained in this Statement of Changes in Immigration Rules were made known to the Court, the decision of the Court would have been different.

Can the above scenario, in which the Home Office did not inform the Court that such information would be contained in the Statement of Changes in Immigration Rules, amounts to FRAUD in English Law?

Please don't ask hypothetical questions but state the facts of the matter on which you are seeking opinions.

The Statement of Changes in the period you refer to was HC 56. It was laid before Parliament on 30 January 2020 and the changes set out in the statement took effect on 20 February 2020.

There is usually, but not always, a time interval between the publication of the changes and the date from which they take effect. The publications are in the public domain and their contents are not released by the Home Office in advance

It is an Immigration Case in which the Court refused the Appellants Indefinite Leave to Remain.
The Statement of Changes in Immigration Rules was laid to parliament the following day after the Court handed down its judgment and it contained information that would have assisted the Court, had it been known, to reach a totally different judgment.

Since the Secretary of State was fully aware of the content of the Statement of Changes that was to be laid before parliament the very next day in which the judgement was to be handed down by reason of receipt of the draft judgment was there no duty to inform the Court so that the Court could give consideration as to whether the handed down judgment be delayed a few days until the content of the Statement of Changes be made known? So given that the information contained could have changed the decision of the Court would that non-disclosure be deemed as fraud?

A1b1 wrote: ↑

Fri May 14, 2021 3:22 pm

Can the above scenario, in which the Home Office did not inform the Court that such information would be contained in the Statement of Changes in Immigration Rules, amounts to FRAUD in English Law?

The HO has no duty to inform the judiciary or anyone else of the contents of a forthcoming statement of changes before its publication.

BTW which change in the immigration rules do you think would have resulted in a different outcome of the court case?

manci wrote: ↑

Fri May 14, 2021 5:22 pm

A1b1 wrote: ↑

Fri May 14, 2021 3:22 pm

Can the above scenario, in which the Home Office did not inform the Court that such information would be contained in the Statement of Changes in Immigration Rules, amounts to FRAUD in English Law?

The HO has no duty to inform the judiciary or anyone else of the contents of a forthcoming statement of changes before its publication.

BTW which change in the immigration rules do you think would have resulted in a different outcome of the court case?

If your view is right then I think it is unfair that the Secretary of State for the Home Department to have no duty to inform the Court as to his/her intended intention(s) to Parliament in situation where the Court was asked to interpret certain aspect of the Immigration Rules and Policies so as to decipher the intentions of the extant Immigration Rules which was to be clarified in the yet to be announced Statement of Changes.

In relation to the question you asked: there were several instances of injustices that occurred in the past in which the Court corrected using the inherent powers contained in FULL Appeal rights but since coming into force of the Immigration Act 2014 as from 6 April 2015 those rights were unfairly withdrawn for many appellants who migrated legally into this country on the basis that any decision of the Secretary of State would have a full appeal right.

It’s difficult to see how the immigration changes, not in force at the time of the decision and appeal, would effect the outcome of the appeal?

Can you be more specific on what you are referring to?

vinny wrote: ↑

Sat May 15, 2021 8:10 am

It’s difficult to see how the immigration changes, not in force at the time of the decision and appeal, would effect the outcome of the appeal?

Can you be more specific on what you are referring to?

It has to do with the correct interpretation of "has not been absent for 180 days or less" as found in HC 760 in contrast to has not been absent for more than 180 days as found from HC 309 and/or HC 1154.

The Secretary of State submission was more in the sense that the legislative text "has not been absent for 180 days or less" was accurate and deliberately chosen. Made reference to the Policy that the Policy stated "no more than 180 days" whole days allowed. As such the Rules operate rationally and sensibly without needing to distort what is the natural and ordinary meaning of the words used.

The Argument on behalf of the Appellant was that "has not been absent for 180 days or less" did not say anything legally for those absent for more than 180 days. That the Policy "no more than 180 days" whole days was not a legal inference directly from the Rule as the Rule itself clearly did not say "has not been absent for more than 180 days" that would have created the inference as in several legal jurisdiction. Importantly the phrase MORE THAN or EXCESS must be used to capture the correct mirror of the phrase. That as the correct legislative text was not used then those absent for more than 180 days would need to demonstrate their strong ties in the UK.

After Judgment given for the Secretary of State it was later found that the Statement of Changes in Immigration Rules amended the phrase to what was argued on behalf of the Appellant has not been absent for more than 180 days.

A1b1 wrote: ↑

Sat May 15, 2021 12:44 pm

It has to do with the correct interpretation of "has not been absent for 180 days or less" as found in HC 760 in contrast to has not been absent for more than 180 days as found from HC 309 and/or HC 1154.

How does this relate to your Scenario in 2020?

See also R (on the application of RN v Secretary of State for the Home Department (paragraph 245AAA) [2017] UKUT 76(IAC).

@vinny
I cannot follow the reasoning behind your last post given your initial post where you stated that it was difficult to see how Statement of Changes not in force at the time of the decision would effect the outcome of the appeal and you requested for me to be more specific. For ease of comprehension that initial post of yours is quoted in this post below.

vinny wrote: ↑

Sat May 15, 2021 8:10 am

It’s difficult to see how the immigration changes, not in force at the time of the decision and appeal, would effect the outcome of the appeal?

Can you be more specific on what you are referring to?

In my last post I provided you the requested specifics in which the Secretary of State argued before the Court that the wordings of the legislative text "has not been absent for 180 days or less" was accurate and deliberately chosen in contrast to the counter party submission to the Court that the legislative text did not say "has not been absent for more than 180 days" that would have captured those who were absent for more than 180 days.

The independent Court had to determine the matter before it taking into consideration the Secretary of State very strong submission that the legislative text was accurate and deliberately chosen as well as knowledge that the Secretary of State is statutorily empowered to declare his/her intentions via Immigration Rules on how to control and manage migration. The Court was not informed of the intention of the Secretary of State that the purportedly "accurate and deliberately chosen legislative text" was amended (or to be amended) to reflect the Appellant's submission "has not been absent for more than 180 days" to be the correct legislative text. Had that been done the Court would likely had quashed the decision of the Secretary of State and would have led to many Appellants whose cases were determined on the basis of that Immigration Rules to seek review of their cases. That way those affected would not need to wait for years (for example the Windrush scandal) for corrective justice.

So how you (and/or any well informed member on this forum) kind enough to express any view as to whether the specifics that I provided amounted to fraud by reason of material non-disclosure?

If no changes were in force at the times of the refusal decision and appeal determination, then how could an appeal consider any changes when there were none at those times?

Unless the changes imply that, or were due to, the original rules were unlawful, I don’t see how prior disclosure would be relevant.

I don't know your background but I wish to say here that I have seen situations where the Secretary of State informed the Court to wait on forthcoming decisions and the Court would asked the counter party as to any objection before the Court decision as to either to wait or to continue.

Your position you appeared taking is a conservative approach. The Court decided so nothing more to say. You appeared unwilling, at least so far, to express any view as to the very narrow scenario I raised

My view is that “180 days or less” seems to be logically equivalent to the negation of “more than 180 days”.

vinny wrote: ↑

Sun May 16, 2021 4:25 am

My view is that “180 days or less” seems to be logically equivalent to the negation of “more than 180 days”.

In the construction of any Rule for the mirror image to be logically equivalent the RULE of the THUMB is to use mathematical expression of NOT MORE THAN the required time period that must not be exceeded. So if you wish to draft a law for student to work a maximum of 20 hours per week. Then you would have to draft the law NOT MORE THAN 20 hours per week. If you draft it as student can work for 20 hours or less you create a legal lacuna as to those who worked 21 hours or more. So the rule must be clear and as you know not many decision makers are excellent in mathematics.

By way of example if you look critically at the Immigration Rule active as at 13 December 2012 you would see that it was only expressly stated for Tier 1 (Exceptional Talent) as NO MORE THAN 180 days.
At that time understanding was not so clear as to the case law of ODELOLA so researchers who must be granted ILR at that time it was reasoned must comply with that strict Rule. This led several of the Royal Societies in the UK to make representations to the Government that their researchers were being denied ILR and as you would see in the present Immigration Rules their lobbying paid off as they are exempted for the NO MORE THAN 180 days rule once they have evidence from their respective Royal Societies to demonstrate the absences then it would not count.

I think that they are still doing it both ways.

For example, in the visitor rules, there are Visitor Permitted activities as well as Prohibited activities.

There may be some unmentioned activities that are neither permitted nor prohibited.

Moreover, the complex rules may be incomplete?

Thank you for your time and responses. I also read the information contained in the links you provided.

No one is an island and that is one of the reasons we have plurality of judges constituted to hear any case at the Court of Appeal and the Supreme Court. This creates opportunity for discussion as to the judges respective views before each of them reach their own respective decision as to the matter before the Court.

I have a view in relation to the specifics I provided in my earlier posts on this thread. That the Secretary of State failure to inform the Court that the legislative text before the Court was already amended (or going to be amended) to reflect the submission made on behalf of the counter party amounts to material non-disclosure or omission. I believe such material non-disclosure or omission falls to be considered under Section 3 and/or Section 4(b) of the Fraud Act 2006.

See also BH (policies/information: SoS's duties) Iraq [2020] UKUT 189 (IAC) (14 May 2020)

67. It may be helpful to summarise our conclusions on the relevant legal principles:

• (a) The respondent has a duty to reach decisions that are in accordance with her policies in the immigration field. Where there appears to be a policy that is not otherwise apparent and which may throw doubt on the respondent's case before the tribunal, she is under a duty to make a relevant policy known to the Tribunal, whether or not the policy is published and so available in the public domain. Despite their expertise, judges in the Immigration and Asylum Chambers cannot reasonably be expected to possess comprehensive knowledge of each and every policy of the respondent in the immigration field.
• (b) In protection appeals (and probably in other kinds of immigration appeal), the respondent has a duty not to mislead, by failing to draw attention to documents etc under her control or in the possession of another government department, which are not in the public domain, and which she knows or ought to know undermine or qualify her case.
• (c) The fact that country information is contained in a COI does not, without more, make that information subject to the duty in sub-paragraph (a) above.