Clarifying the Duty to Assess Innocent Mistake in Immigration Deception Findings: Commentary on AM (AP) v Secretary of State for the Home Department [2025] CSOH 107

Clarifying the Duty to Assess Innocent Mistake in Immigration Deception Findings:
Commentary on AM (AP) for Judicial Review [2025] CSOH 107

1. Introduction

This judicial review in the Outer House of the Court of Session, decided by Lady Drummond in AM (AP) for Judicial Review of a decision by the Secretary of State for the Home Department ([2025] CSOH 107), provides a significant and carefully reasoned statement on two interconnected duties of the Secretary of State in immigration “deception” cases:

  1. The duty to follow published Home Office policy guidance on “false representations” and “deception” when cancelling leave; and
  2. The duty to provide adequate reasons, particularly when making a serious finding of dishonesty.

The case concerns a Nigerian national, AM, who entered the UK on a student visa that restricted him to no more than 20 hours’ work per week during term time. He later obtained leave as a skilled worker. The Secretary of State subsequently cancelled that leave on the basis that:

  • He had breached his student visa conditions by working in excess of 20 hours per week; and
  • He had used deception and made false representations when, in his work visa application, he stated that he had not breached his conditions.

The challenge did not concern whether AM in fact exceeded the permitted hours. He accepted that, applying the Immigration Rules definition of “employment,” he had. The core dispute was whether his false statement in the later application was:

  • A deliberate act of deception; or
  • An innocent mistake arising from a misunderstanding of what counted as “work”.

On that question, Lady Drummond held that the Secretary of State:

  • Failed to follow her own deception guidance; and
  • Failed to give adequate reasons explaining why she treated AM’s false statement as dishonest rather than an innocent error.

The decision is important for immigration and public law because it sharpens the standard that must be met before the Home Office may lawfully brand an applicant “deceitful,” and clarifies how the widely applied Ivey dishonesty test and related guidance must be used in practice.

2. Summary of the Judgment

2.1 Factual background

Key facts (all essentially undisputed) are:

  • AM entered the UK on 1 February 2022 with student leave valid until 6 September 2023.
  • His leave was expressly conditional on not working more than 20 hours a week during term time.
  • On 22 February 2022, he took up work as a support worker, contracted for 20 hours per week.
  • He submitted timesheets showing hours worked. He worked at different locations and travelled between them.
  • Under his contract, he was:
    • Paid for “actual hours worked attending to service users”; and
    • Reimbursed travel costs between service users, but not paid for travel time itself.
  • On 2 September 2022, he applied for leave as a skilled worker, stating he had not breached his student conditions.
  • The Secretary of State granted him leave on 7 September 2022.
  • Following an interview on 19 October 2022, the Secretary of State decided to cancel his leave, and then issued several further cancellation decisions (19 October 2022, 25 July 2024, 11 September 2024, 17 November 2024), all later withdrawn.
  • The final decision, dated 6 May 2025, again cancelled his leave on the basis of deception; this is the decision under review.

2.2 The Secretary of State’s 6 May 2025 decision

The decision letter concluded that:

  • AM had worked in excess of his permitted 20 hours, once “employment” was interpreted in line with paragraph 6.2 of the Immigration Rules to include:
    • Paid and unpaid work; and
    • Travel time treated as part of the working day.
  • The timesheets, rota, and the nature of the travel arrangements (work vehicle, fixed route, inability to deviate, expense reimbursement) showed that the travel was part of the working day.
  • Because he had consistently breached his hours, and having taken into account his interview responses, the decision maker believed, on the balance of probabilities, that he had “used deception” to gain leave to remain.
  • It was further stated that AM had “admitted” to having made false representations on his application, and therefore had used deception.

2.3 The petitioner’s case

AM accepted:

  • That under the Immigration Rules’ definition (including unpaid travel time), he did work more than 20 hours per week; and
  • That his statement in the work visa application—that he had not breached his student visa conditions—was false.

However, he argued:

  • He genuinely believed, at the time of his application, that only paid work counted towards the 20-hour limit.
  • He did not think of unpaid travel time as “work”, because:
    • He was contracted for 20 hours;
    • He was only paid for 20 hours; and
    • His timesheets only exceeded 20 hours once travel time was included.
  • His false statement was therefore an innocent mistake, not deliberate deception.

His grounds of challenge were:

  1. Failure to follow guidance: The Secretary of State had failed to apply her own published guidance “Suitability: false representations, deception, false documents, nondisclosure of relevant fact” (14 November 2023), in particular the requirement to consider whether a false representation was an innocent mistake or a dishonest misstatement.
  2. Inadequate reasons: The Secretary of State had failed to give adequate reasons explaining why she rejected AM’s explanation and concluded that he acted dishonestly, especially given the seriousness of a dishonesty finding.

2.4 The respondent’s case

The Secretary of State:

  • Accepted that the approach to dishonesty was that in Ivey v Genting Casinos UK Ltd [2017] UKSC 67.
  • Relied on Balajigari v Secretary of State for the Home Department [2019] 1 WLR 4647 for the proposition that procedural fairness had been observed:
    • AM was put on notice of an allegation of deception; and
    • He was interviewed and given an opportunity to explain.
  • Argued that the decision maker had considered AM’s explanations and the inconsistencies in his interview answers, and that this was implicit in the reasoning.
  • Invoked authorities on reasons—R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535, South Bucks DC v Porter (No 2) [2004] 1 WLR 1953, Wordie Property Ltd v Secretary of State for Scotland 1984 SLT 345, MS (Pakistan) v Secretary of State for the Home Department [2017] CSIH 41—to contend:
    • Decision letters should not be read as formal legal documents;
    • Not every point needs to be addressed expressly; and
    • Where there are grounds on which an argument could have been rejected, the court may infer that they were relied upon unless there are convincing reasons to the contrary.
  • Submitted that, viewed objectively, AM’s false statement was dishonest given:
    • The number and consistency of the breaches;
    • The benefit to him; and
    • The contradictions between his stated understanding and his own timesheets and interview answers.

2.5 The court’s decision

Lady Drummond upheld the petition and reduced (quashed) the 6 May 2025 decision, holding that:

  • The Secretary of State failed to follow her own deception guidance:
    • The decision letter did not engage with the key guidance questions about innocent mistakes, the applicant’s state of knowledge, or ease of error.
    • Nothing in the letter allowed a confident inference that such an assessment had been undertaken.
  • The Secretary of State failed to provide adequate reasons:
    • The “vital and critical issue” was whether AM acted dishonestly or made an innocent mistake.
    • The letter did not explain how that issue was resolved, leaving the informed reader in “real and substantial doubt”.

The court therefore:

  • Sustained the petitioner’s second plea-in-law (inadequate reasons / failure to follow guidance);
  • Repelled the Secretary of State’s pleas; and
  • Awarded expenses against the Secretary of State.

3. Precedents and Authorities Cited

3.1 Ivey v Genting Casinos UK Ltd [2017] UKSC 67

Ivey is the leading UK Supreme Court authority on the test for dishonesty. It replaced the former two-limb R v Ghosh test in criminal law and has been widely regarded as setting the standard in civil contexts too.

The Ivey approach, as summarised in the judgment, requires:

  1. First stage – actual state of mind: The fact-finder must determine the individual’s actual knowledge or belief about the relevant facts, and whether that belief is genuinely held.
  2. Second stage – objective standard: Given that state of mind, the fact-finder must decide whether the conduct was honest or dishonest according to the (objective) standards of ordinary decent people.

Notably, the second stage is objective in the sense that an individual’s own opinion about whether their conduct was honest is irrelevant. But the decision-maker must still take into account “everything relevant to whether the individual acted dishonestly,” including the person’s reasons and subjective understanding of the facts.

This framework underpins both the Home Office’s own deception guidance and the court’s criticism of the decision letter, which failed to set out any meaningful inquiry into AM’s actual knowledge and belief.

3.2 Kidd v Lime Rock Management LLP [2025] CSIH 11

As described in Lady Drummond’s opinion, the Inner House in Kidd considered how Ivey should be applied. It emphasised that:

  • Ivey does not mean the decision-maker must ignore the individual’s beliefs or state of mind at the second, objective stage.
  • The “ordinary right-thinking person” would assess the person’s behaviour in light of their actual, genuinely held beliefs about the facts.

Thus, Kidd confirms that the proper assessment of dishonesty requires:

  • A clear finding as to what the individual thought was happening; and
  • An evaluation of dishonesty with that subjective context in mind.

Lady Drummond uses Kidd to reinforce the idea that before branding someone dishonest, the decision-maker must first “explore what the person’s own knowledge is” and only then apply the objective standard. This is mirrored in the Home Office guidance’s insistence on questions like “how likely is it that the applicant was unaware the information has been provided” and “how easy would it be to make an innocent mistake?”

3.3 Home Office Guidance: “Suitability: false representations, deception, false documents, nondisclosure of relevant fact” (14 November 2023)

This guidance is central to the case. It:

  • Recognises a burden on the Secretary of State to prove both:
    • That representations are untrue; and
    • That there is deception or dishonesty—on the balance of probabilities.
  • Requires decision-makers to distinguish between:
    • False information given innocently; and
    • False information given dishonestly.
  • Contains an explicit “Mistakes” section (quoted in full in the judgment) which directs decision-makers to consider, where a false representation has been made, whether:
    • An innocent mistake has, or could have, been made;
    • It was easy to make such a mistake;
    • The applicant was unaware they provided the information;
    • The applicant (or person providing the information) was aware that it was incorrect;
    • The false information benefited the applicant; and
    • The information was contradicted by other answers or documents.

In public law terms, once such guidance is published and relied on generally, the Secretary of State is required to:

  • Follow it in individual cases; or
  • Depart from it only with good reason, and usually expressly, so that affected individuals understand why.

Lady Drummond found that the Secretary of State neither:

  • Applied the specific questions directed by the guidance; nor
  • Otherwise demonstrated that she had grappled with the innocent-mistake possibility at all.

3.4 Dadzie v Secretary of State for the Home Department [2018] CSOH 128

In Dadzie, Lord Tyre dealt with a similar problem: discrepancies in financial information given to different bodies were treated as evidence of dishonesty. He held that:

  • The mere fact of discrepancy is not enough to sustain an inference of dishonesty;
  • The decision-maker must confront the question whether the discrepancy stems from inadvertence or intentional wrongdoing.

In Dadzie, the failing was framed as Wednesbury unreasonableness (irrationality), but as Lady Drummond observes, the underlying issue is the same: a failure to assess whether the false statement was deliberate.

Here, that same failing is recast as:

  • Failure to follow policy guidance; and
  • Failure to give adequate reasons on the critical issue of dishonesty.

3.5 Balajigari v Secretary of State for the Home Department [2019] 1 WLR 4647

Balajigari is an English Court of Appeal decision on procedural fairness and “deception” allegations in immigration law. It holds that:

  • Where the Secretary of State suspects dishonesty (for example, earnings discrepancies), she may legitimately infer dishonesty if:
    • There is a significant discrepancy;
    • An explanation is sought; and
    • The explanation is not forthcoming or is unconvincing.
  • However, fair process must be followed; the person must be put on notice and allowed to respond.

The Secretary of State relied on this to argue that, once AM’s explanation was considered and found unconvincing, an inference of dishonesty was open to her.

Lady Drummond did not reject that general principle. Instead, she held that the Secretary of State failed at a more basic level: she did not explain why she rejected AM’s innocent-mistake explanation, nor did she show that she had asked the right questions under her guidance. Balajigari validates inference from unexplained discrepancies; it does not dispense with the need to articulate the reasoning on the central issue of honesty.

3.6 Authorities on the duty to give reasons

A series of authorities is cited on the scope of the duty to give reasons and how decision letters should be read.

  • Wordie Property Ltd v Secretary of State for Scotland 1984 SLT 345:
    • Reasons must be intelligible and adequate;
    • The reader must not be left in real and substantial doubt as to what the reasons were and what considerations were taken into account.
  • South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953:
    • Decision letters should not be read like statutes or contracts;
    • They should be given a “benevolent” reading, not subjected to overly legalistic scrutiny;
    • However, they must still enable the reader to understand why the decision was reached.
  • R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535:
    • Complaints about failure to give reasons are said to occur “far too often”;
    • Not every argument or factor needs explicit treatment; and
    • If there are obvious grounds on which an argument could be rejected, the court may infer those grounds were in fact relied on—unless there are convincing reasons to the contrary.
    • However, issues “vital, critical or material” to the conclusion must have their resolution explained.
  • English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409:
    • Reinforces the principle that appellate review requires sufficient reasons on the crucial issues.
  • MS (Pakistan) v Secretary of State for the Home Department [2017] CSIH 41:
    • Applied the “informed reader” test in the immigration context, drawing on Wordie and Porter.

Lady Drummond accepts—and applies—these principles. She stresses that:

  • The letter need not be exhaustive;
  • But where the “vital and critical issue” is dishonesty vs innocent mistake, the decision-maker must explain, at least in outline, how that issue was resolved.

4. Legal Reasoning in Detail

4.1 Narrowing the issues

The court notes that the petitioner did not challenge the decision as irrational (in the Wednesbury sense) or unreasonable on the facts. The focus was strictly on:

  1. Failure to follow policy guidance; and
  2. Failure to give adequate reasons.

This disciplined narrowing mattered. It meant the court did not have to decide whether a reasonable decision-maker could have concluded that AM was dishonest on the available evidence. Instead, the court asked:

  • Did the decision-maker take into account the right matters under the guidance and the law on dishonesty? and
  • Did she explain, to a sufficient standard, how she arrived at the finding of deception?

4.2 The centrality of the “innocent mistake” question

The court identifies the “vital and critical issue” as:

Whether the petitioner had acted dishonestly or made an innocent mistake.

Everything else—the fact that his working hours, properly calculated, exceeded 20; the immigration rules about counting travel time; the existence of his false declaration—was not in contention. The live issue was his state of mind when he completed his application on 2 September 2022.

Under both:

  • The Ivey/Kidd dishonesty framework; and
  • The Home Office’s own guidance;

a decision-maker must:

  1. Address what the applicant actually understood or believed about the relevant facts; and
  2. Assess, given that understanding, whether his conduct meets the objective standard of dishonesty.

The guidance operationalises this by requiring consideration of how easy it is to fall into error, how likely it is that the person realised the information was incorrect, and whether the false information conferred a benefit and was contradicted by other data.

Lady Drummond therefore scrutinises the decision letter to see whether these essential questions were:

  • Asked; and
  • Answered in a way intelligible to an informed reader.

4.3 What the decision letter did say

The decision letter put particular weight on:

  • The “consistency of the breaches and the number of hours breached each time”;
  • The fact that “paid, unpaid and travel time” were counted as work under the Immigration Rules;
  • The evidence from timesheets and rotas showing more than 20 hours per week when travel time was included; and
  • The nature of the travel arrangements (work vehicle, non-deviation from route, expenses reimbursed) as indicating that travel formed part of the working day.

It concluded, on that basis, that:

“This leads us to believe that this is part of the working day and is being considered as such … I have therefore decided to cancel your current permission because you have admitted to Immigration Officers you have made false representations… You have therefore used deception in gaining Leave to Remain in the United Kingdom.”

Crucially, the letter:

  • Made no explicit reference to the innocent-mistake question;
  • Did not reference—directly or indirectly—the bullet-point criteria in the guidance for assessing mistakes; and
  • Did not clearly state why AM’s explanation of misunderstanding was rejected as incredible, implausible, or inconsistent with his knowledge and behaviour at the time.

4.4 Why the implicit-guidance argument failed

The Secretary of State argued that, even though the guidance was not cited, the letter—properly, benevolently read—implicitly reflected the required analysis. Lady Drummond accepts that:

  • Decision letters do not have to parrot guidance verbatim; and
  • The guidance’s list of questions is not exhaustive.

Nevertheless, she finds that the reasoning in this particular letter did not justify the inference that:

  • The decision-maker had considered whether there might have been an innocent mistake; or
  • The decision-maker had made findings about AM’s actual understanding of the rules at the time of the application.

Her key points are:

  1. Number and consistency of breaches is not enough:
    • While repeated breaches might sometimes indicate dishonesty, they could also be consistent with a single ongoing misunderstanding.
    • The guidance itself indicates that repetition is only one factor (e.g. whether a similar error appears on previous applications), and must be analysed alongside others.
    • Without engagement with AM’s explanation (that he believed only paid hours counted), the inference of dishonesty remains unexplained.
  2. Failure to engage with the petitioner’s understanding:
    • The decision-maker’s statement that AM offered “no rational explanation” for working more than 20 hours is criticised as puzzling.
    • AM’s explanation—that he believed he worked only 20 “paid” hours and did not regard unpaid travel time as work— is not obviously irrational, even if legally incorrect.
    • The letter does not explain why, in light of his contractual terms and practical experience, that belief was inherently implausible or incredible.
  3. Focus on respondent’s belief, not petitioner’s state of mind:
    • The letter explains what led the Secretary of State to believe that travel time is legally part of the working day; it does not explain what AM himself believed about that point at the time of his application.
    • Under Ivey and the guidance, the latter is the necessary starting point for a dishonesty assessment.

Taken together, these omissions meant that the letter could not reasonably be read as having applied the guidance or as having conducted the required two-stage dishonesty analysis.

4.5 Application of the reasons authorities

Applying Wordie, Porter, and R (Iran), Lady Drummond holds that:

  • Courts will not overturn decisions for minor omissions or failure to address peripheral points.
  • But here, the unaddressed issue—innocent mistake vs dishonesty—was “vital and critical” to the conclusion.
  • An “informed reader” of the letter would be left in “real and substantial doubt” as to:
    • How the decision-maker assessed AM’s state of knowledge; and
    • Why she preferred a dishonest explanation over an innocent one.

The principle from R (Iran)—that the court may assume a decision-maker rejected an argument on a rational basis without explicitly stating it—does not assist the Secretary of State here, because there are:

  • No obvious grounds, clearly cross-referred to in the letter, indicating why AM’s explanation could properly be dismissed; and
  • Clear reasons, given by the court, to doubt that the relevant issues were in fact confronted at all.

4.6 Seriousness of dishonesty findings

Echoing Dadzie, Lady Drummond emphasises that a finding of deception in immigration law is a serious one, with far-reaching consequences:

  • It can bar or limit future applications;
  • It can negatively affect credibility assessments; and
  • It can stigmatise the applicant as untrustworthy.

Precisely because of this seriousness, the law requires:

  • A clear evidential basis for inferring dishonesty, not just falsity; and
  • A conscious and reasoned distinction between deliberate misrepresentation and innocent error.

Where guidance recognises that distinction and instructs decision-makers to work through specific questions guarding against unwarranted findings of dishonesty, failure to apply that framework is a significant public law error.

5. Impact on Immigration and Public Law

5.1 Strengthening the obligation to follow Home Office guidance

This judgment reinforces a well-established public law principle in a concrete immigration context: when the Secretary of State has promulgated detailed guidance on how to handle allegations of deception, failure to follow that guidance—absent clearly articulated reasons for departure—renders the decision legally vulnerable.

In practice, this means:

  • Decision-makers must show, at least in outline, that they have:
    • Considered whether a false statement could have been an innocent mistake; and
    • Engaged with the factors listed in the guidance (ease of error, awareness, benefit, contradictions, repetition).
  • Immigration practitioners will have a clearer line of attack where decision letters:
    • Jump from factual falsity straight to “deception” without analysing state of mind; or
    • Ignore plausible explanations of misunderstanding or error.

5.2 Operational consequences for allegations of deception

In future deception-based refusals and cancellation decisions, especially in Scotland, the Secretary of State will likely need to:

  • Draft more detailed reasoning sections specifically addressing:
    • What the applicant knew or believed at the time of making the statement; and
    • Why, objectively, that belief cannot be accepted as honest.
  • Avoid treating repeated technical breaches (e.g. multiple weeks slightly over 20 hours) as self-evidently indicative of dishonesty, without explicit explanation.
  • Address, in clear terms, why a claimed misunderstanding of complex rules (such as the scope of “employment”) is implausible in the circumstances.

Where such reasoning is absent, applicants will have stronger grounds to seek judicial review, not on the merits of the factual findings, but on the basis of failure to follow guidance and failure to give adequate reasons for a grave finding of dishonesty.

5.3 Clarifying the application of Ivey and Kidd in immigration

The judgment illustrates how the Ivey/Kidd dishonesty test, originally articulated in criminal and civil fraud contexts, operates in the immigration setting:

  • The test is not purely objective: one must first determine what the applicant thought the facts were.
  • Complexities in the Immigration Rules (for example, that unpaid travel time counts as “work”) can easily give rise to misunderstandings, particularly for migrants navigating unfamiliar systems.
  • Decision-makers must avoid reflexively equating:
    • “The applicant was wrong about the law”; with
    • “The applicant knew he was wrong and lied about it”.

The case thus adds texture to the application of Ivey in public law: procedural fairness and the reasons duty require decision-makers to make their dishonesty reasoning visible, not merely to apply the test silently in their own minds.

5.4 Implications for student visa and work cases

On the facts, this case will be of particular interest in:

  • Student visa cases where conditions limit working hours; and
  • Cases involving complex or non-intuitive definitions of “employment” (e.g. include unpaid elements, on-call time, training, or travel).

Key lessons include:

  • Students and their advisers should be made clearly aware that the Immigration Rules’ concept of “employment” can go beyond paid hours.
  • Where misstatements arise from such misunderstandings, applicants should:
    • Explain in detail their understanding at the time; and
    • Ground that explanation in the realities of their contract and how they actually got paid.
  • The Home Office will have to distinguish more carefully between:
    • Those who deliberately conceal known breaches; and
    • Those who, through misunderstanding, misstate compliance with conditions.

5.5 Litigation strategy and JR practice

For litigators, the case illustrates a strategic approach:

  • Focus judicial review not on contesting every factual finding, but on:
    • Non-compliance with guidance; and
    • Defective reasoning on key issues like dishonesty.
  • Use the guidance itself as a quasi-checklist in analysing decision letters; where the key questions are missing, a ground arises.
  • Frame dishonesty findings as serious, quasi-criminal in nature, requiring commensurately clear reasoning.

6. Complex Concepts Simplified

6.1 “False representation” vs “deception”

In immigration law:

  • A false representation means the applicant has said something untrue or provided inaccurate information in an application or interview.
  • Deception goes further: it implies:
    • The person knew the information was false or misleading; and
    • Intended to mislead the decision-maker.

A person can make a false representation without being deceitful—if the error is genuinely innocent (e.g. misunderstanding a rule, mis-typing a date, misreading a document).

6.2 The Ivey dishonesty test in plain terms

Under Ivey and Kidd, the question “Was the person dishonest?” is answered in two steps:

  1. What did the person actually think was happening?
    • Did they genuinely believe they were complying with the rules?
    • What did they understand “work” or “earnings” or “hours” to mean?
  2. Given that belief, would ordinary decent people think the person was being dishonest?
    • If someone honestly but mistakenly thought they were allowed to do something, ordinary people might not call them dishonest.

The person’s own view about whether they behaved honestly (“I think I did nothing wrong”) is irrelevant. But their belief about the facts (“I thought unpaid travel didn’t count as work”) is crucial.

6.3 “Innocent mistake”

An “innocent mistake” in this context means:

  • The person gave false information; but
  • They did so because they misunderstood, misread, or negligently mis-stated something, without an intention to deceive.

The Home Office guidance recognises that:

  • If there may have been an innocent mistake, a refusal on “false representation” grounds should not be made.
  • Decision-makers must therefore actively:
    • Look for signs that a mistake could reasonably occur; and
    • Weigh whether the explanation of error is credible in light of the evidence.

6.4 “Balance of probabilities” and burden of proof

The Home Office bears the burden of proof on allegations of deception. “Burden” here means:

  • They must prove that:
    • The representation was false; and
    • The applicant acted dishonestly.

The “balance of probabilities” standard means:

  • It must be more likely than not (>50%) that the applicant was dishonest;
  • Mere suspicion or possibility is not enough.

6.5 Judicial review vs appeal

A judicial review does not ask whether the court would have made the same decision on the facts. Instead, it asks:

  • Did the public authority follow the law and its own policies?
  • Did it:
    • Consider all relevant factors?
    • Avoid irrelevant factors?
    • Act fairly?
    • Give enough reasons to explain the decision?

Here, the court did not decide whether AM was honest or dishonest. It decided only that the Secretary of State’s decision was made unlawfully because guidance was not followed and reasons were inadequate, and therefore it had to be quashed.

6.6 “Reduction” and “pleas-in-law” (Scottish terminology)

  • Reduction: In Scots law, to “reduce” a decision means to quash it, declaring it of no legal effect.
  • Plea-in-law: A formal statement in a petition or answer setting out a party’s legal propositions. To “sustain” a plea-in-law is to uphold it; to “repel” is to reject it.

6.7 Wednesbury unreasonableness

Although not directly applied as a ground here, Wednesbury unreasonableness (or irrationality) is a traditional judicial review standard. A decision is irrational if:

  • No reasonable decision-maker, properly directing themselves in law, could have made it on the evidence.

In Dadzie, failure to distinguish between error and deliberate deception was treated as Wednesbury unreasonable. In AM, the same underlying failure is characterised differently—as breach of guidance and inadequate reasons—but the concept overlaps: the decision-making process is flawed because it never truly tackles the central question.

7. Conclusion: Key Takeaways

Lady Drummond’s decision in AM (AP) for Judicial Review [2025] CSOH 107 delivers a clear and notable message for immigration decision-making and public law oversight:

  1. Guidance must be followed in substance, not merely cited.
    • Where the Home Office’s published guidance frames a careful approach to allegations of deception—especially by requiring consideration of innocent mistakes—failure to apply that framework undermines the lawfulness of the decision.
  2. Dishonesty findings demand careful, explicit reasoning.
    • Decision-makers must explain why they reject plausible explanations of misunderstanding.
    • The key is to show that the applicant’s actual beliefs and knowledge have been weighed before concluding that their conduct was dishonest under the Ivey standard.
  3. Falsehood is not the same as deception.
    • The existence of a false statement or repeated breach does not, without more, prove dishonest intent.
  4. The “informed reader” should not be left guessing.
    • Applying Wordie, Porter and R (Iran), the court insists that the vital issue—whether AM acted dishonestly or innocently—must be transparently dealt with.
  5. Practical effect:
    • Home Office decision letters in deception cases will need to be more analytically robust, particularly on the applicant’s state of mind.
    • Applicants and practitioners have a reinforced basis to challenge decisions where dishonesty is asserted but not properly justified or reasoned.

In sum, the judgment refines the intersection between doctrinal dishonesty tests, departmental guidance, and the public law duties of fairness and reason-giving. It underscores that a conclusion of “deception” in immigration law is not a label to be affixed lightly; it must rest on a demonstrably reasoned assessment of whether a false statement was indeed dishonest, rather than an innocent mistake.

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