A case that came out in May 2014 but one that I think is worth mentioning to you all.
The case of Omenma (Conditional Discharge – not a conviction of an offence) 2014 UKUT 314 IAC.
This is an important case and worth knowing becuase it says that the effect of 14(1) of the Powers of Criminal Courts (Sentencing Act 2000), is that a person who has receivd an Absolute or Conditional discharge does not make a false representation if they give the answer of ‘no’ when asked if they have ever been convicted of an offence.
THE FACTS OF THE CASE
The issue was whether a failure to disclose that the appellant had pleaded guilty to Shoplifting and had received a Conditional Discharge for 2 years had the effect of disqualifying her from leave to remain in the UK.
The Home Office ultimately withdrew the decision, and accepted that the appellant had not been dishonest, but the appellant did not withdraw the appeal. The court retained jurisdiction to hear the case as there was no previous caselaw on this point.
The appellant had submitted an application for leave to remain which was refused, as the Home Office decided false represenations had been made and failure to disclose a material fact. They relied on a part of the General Grounds for Refusal in the Immigration rules that made the refusal on these grounds mandatory.
The appeal was dismissed at first hearing before the First Tier Tribunal, and the appellant further appealed.the
The Judge found in the first hearing that she had not disclosed a material fact, been dishonest in signing the application form that it was true to the best of her knowledge, given the fact that she had been before a court and pleaded guilty to theft.
Her application for permission to appeal succeed on 2 grounds, that the Judge had applied the wrong burden and standard of proof to cases of dishonesty, and secondly in finding her conduct dishonest.
THE PRINCIPLE ESTABLISHED BY THE CASE – The Tribunal found that a person who has received an Absolute or Conditional Discharge, does not make a false reprsenation where the answer is ‘no’ to the question ‘have you ever been convicted of an offence’ .
It was stated that effect of 2.14 of the Powers of Criminal Courts (Sentencing) act 2000 was that an Order for an Absolute or Conditional Discharge was NOT a conviction for any purpose other than for the proceedings for which the Order was made.
The Home office accepted at this stage that they were wrong in law and withdrew the decision.
The Tribunal held that the reason for refusing was unlawful and that the Home Office should grant the leave to remain applied for.
WHAT IT MEANS FOR YOU
That where you have had an Order for an Absolute or Conditional Discharge, and the question is ‘have you ever been convicted of a Criminal offence’, you should not be refused for deception/failing to disclose a material fact.
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