October 15, 2019

Home Office comes out fighting in new guidance on false representations

The fact is that in general the Home offce policy is to have a presumpssion of refusing an application (particularly an asylum claim) unless is totally proven as creadible and justified. Therefore, the Home office is usualay biased when making a decession.
The Home Office has issued new policy guidance on when it will refuse applications on the grounds of deception or dishonesty, i.e. where an applicant has made a false representation. The guidance follows a serious defeat in the Court of Appeal earlier this year. In Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673, the Court of Appeal ruled that the Home Office had unlawfully refused a large number of applications because it had not given applicants the opportunity to respond to an allegation of deception or dishonesty.

One might have expected the Home Office to respond by adopting a generous approach to procedural fairness in this type of case. Instead, policy-makers have decided to adopt a narrow view of Balajigari‘s application that will surely lead to yet more litigation.

The Immigration Rules on false representations

Nath has helpfully explained the law in this area in the context of tax discrepancies, which are a common basis for allegations of dishonesty. In summary, Home Office officials have two tools within the Immigration Rules for refusing applications if they think there is dishonesty or deception involved.

First, if the false representation has been made in the current immigration application, the Rules require the application to be refused (a false representation in a previous application means the application should normally be refused).
Second, if the applicant has made a false representation in a different context — for example, benefit fraud or tax evasion — then the application will normally be refused on public policy grounds.

The use of the public policy ground of refusal in paragraph 322(5) of the Rules to refuse migrants with tax discrepancies has attracted considerable controversy. But in Balajigari the Court of Appeal ruled that the practice is lawful, or at least can be if done the right way.

New system of ‘Minded to Refuse notifications’

The new policy guidance acknowledges the decision in Balajigari by introducing a new “Minded to Refuse notification” procedure. It applies regardless of the exact rule under which refusal for dishonesty or deception is being attempted. In all such cases:

you must provide a ‘Minded to Refuse notification’, which means simply that you must tell the applicant you are thinking of refusing the application based on false representation, set out exactly what the allegation is and make it clear that you are alleging dishonesty. You must also give the applicant the chance to respond to that allegation.

But it then goes on to impose two conditions which must be fulfilled before there is an obligation to give the applicant a Minded to Refuse notification:

The applicant may not necessarily know about the information you have considered or its significance, for example information obtained directly from another Government Department.
The implications for an applicant of a finding of dishonesty are significant.

On the second condition, the guidance says:

it will rarely be the case that an application for entry clearance or leave to enter reaches the required level of seriousness, because in most such cases a refusal will not change the applicant’s circumstances.

The Home Office view is that visa applicants outside the UK are either not entitled to procedural fairness, or that the demands of procedural fairness for those applicants are radically different. Applicants for leave to enter may be informed they have been dishonest without being provided with any opportunity to explain their actions and address the allegation.
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The decision to take such a strict position on the requirements of procedural fairness is especially surprising because, in Balajigari, the Court of Appeal relied heavily on its earlier decision in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812. The Home Office lost Citizens UK because the court decided that the ordinary requirements of procedural fairness still apply to applicants outside the United Kingdom. The position taken in the new policy guidance will surely be challenged and, on the face of it, is likely to be found to be unlawful.
One step forward, two steps back

The recognition in the guidance of the need to send a “Minded to Refuse notification” is a step forward. It will hopefully ensure that many applicants accused of dishonesty in circumstances like the paragraph 322(5) tax decisions are able to demonstrate their innocence before receiving a negative decision. Nonetheless, the Home Office has still managed to invite further legal challenge and ensure that there will be more debate about its approach to allegedly false representations.

October 9, 2019

Excessive Absences in an Application for Naturalisation

The British Nationality Act (BNA 1981) allows individuals to naturalise under either section 6(1) or 6(2) of the Act. Section 6(2) applies where an individual is married to a British citizen. An Applicant will need to demonstrate their commitment and future intentions to have their principal home in the UK before they can naturalise as a British citizen. They will also need to satisfy an absence requirement.

Guidance

The Nationality policy: Naturalisation as a British citizen by discretion Version 4.0, published 23 September 2019, contains guidance relating to excessive absences.

How Long Can I be Outside the UK?

Timing of Application

The first matter to consider will be the timing of any application.

If married to a British citizen the Applicant must have been in the UK beginning with a 3-year period ending with the date of application or if not married to a British citizen (or not relying on marriage) the Applicant must have been in the UK at the beginning of a 5-year period ending with the date of application.

There are some limited exceptions to this requirement for those:

who are applying only on the grounds of Crown service
applicants who are or have been a member of the UK armed forces
spouses or civil partners of British citizens in Crown or designated service overseas
applicants who are technically absent from the UK

The date of application is arguably now the date on which the application is submitted and paid for online.

It is important to note that there is no discretion to overlook this requirement and applications may therefore need some careful planning.

Excessive Absences

There are many ways in which absences can be calculated from travel documents to Home Office records, employment records or bank statements. Continuity in the evidence is important, particularly where absences are borderline.

If there is no passport, the guidance advises that caseworkers “should assess whether there is sufficient evidence to show that that applicant has been resident in the UK during the qualifying period, giving them the benefit of any doubt where claimed absences are within the limits we would normally allow and there are no grounds to doubt the accuracy of the claim”.

The guidance continues: “If there are gaps in a person’s evidence of residence and it is clear from the information available that they could not have travelled, you must accept this. Examples of this might include a refugee who has no means of travel or where immigration records confirm continuous residence”.

Whole days’ absences from the UK will be counted and there is no need to count the dates of departure and arrival as absences. It is important to note that an individual only need be physically present, they do not need to be ordinarily resident or domiciled in the UK.

Meeting the Absence Requirement

An individual will need to demonstrate they have not been absent for more than 450 days in the last 5 years for an application under section 6(1). An application under section 6(2) requires that absences be no more than 270 in the last 3 years.

Both applications need to demonstrate that the absences have not exceeded 90 days in the last 12 months.

The British Nationality Act allows for discretion to be made in respect of the residence requirement in an application to naturalise. A caseworker will consider the following guidance, where the absences are between 480-900 for applications for naturalisation under section 6(1) or 300-540 for applications for naturalisation under section 6(2).

All other requirements must be met and there will be a consideration of where the individual has established their home, employment, family.

In addition they must have spent 2 years or 1 year without substantial absences. If the absence is greater than 730 days (section 6(1)) or 450 days (section 6(2)), the period of residence must be at least 3 or 2 years respectively.

The caseworker will consider the reason for the absences:

“o postings abroad in Crown service under the UK government or in service designated under section 2(3) of the British Nationality Act 1981.

o accompanying a British citizen spouse or civil partner on an appointment overseas

the excess absences were an unavoidable consequence of the nature of the applicant’s career, such as a merchant seaman or employment with a multinational company based in the UK with frequent travel abroad
exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation now, such as a firm job offer where British citizenship is a statutory or mandatory requirement”

The guidance makes clear that an application where the guidance is not met will be extremely challenging: “Where an applicant’s absences exceed those covered above it is highly unlikely that discretion would be appropriate. You should normally refuse the application and advise them to re-apply when they are able to bring themselves with the statutory requirements, unless there are specific circumstances that warrant exceptional consideration at a senior level”.

In the last 12 months discretion can be exercised if the naturalisation application demonstrates that the future intentions requirement is met.

If the absences are 100 days or less, discretion can be exercised.

If between 100 and 180 days where the other residence requirements are met the caseworker will consider family, employment and whether there is a home in the UK.

If more than 100 but not more than 180 days, where the other residence requirements are not met, the individual will need to show their ties to the UK and absences are justified by “Crown service or by compelling occupational or compassionate reasons

exceeding 180 days where the residence requirements over the full qualifying period are met”.

If the absences exceed 180 days where the the full qualifying periods are not met, discretion can only be exercised if “the applicant has demonstrated that they have made this country their home and there are exceptional circumstances”.

Applications made where there are excessive absences are complex and are likely to require detailed evidence, particularly where future intentions need to be evidenced in order to persuade a caseworker to exercise discretion.

September 10, 2019

Right of appeal against refusal of a residence card: the conclusion

The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals (known as ‘extended family members’) have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.

Now, as a result of the final decision of the Upper Tribunal in Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194(IAC), full appeal rights have been restored to ‘extended family members’ whose applications are refused.

To give you the background in a nutshell, by Regulations promulgated in 2016 the Government took away this right of appeal (though it left it in place for spouses and direct descendents). Given that 50% of immigration appeals (across the board) are now successful, this deprived many individuals of a potentially very important right. For more detail on the background, see our previous articles here and here.

In its final decision, the Upper Tribunal noted that following the decision of the Court of Justice in this case, the Home Secretary had amended the 2016 Regulations to provide ‘extended family members’ with a right of appeal once again, by way of the Immigration (European Area Nationals) (EU Exit) Regulations 2019.

As such, future refusal decisions made under the 2016 Regulations will include a right of appeal in the normal way.

In addition, the Upper Tribunal stated that where a person has received a refusal decision made before this change (which states that there is no right of appeal), it is open to them to request a fresh decision from the Secretary of State in order to generate a right of appeal (para 38), or alternatively to invoke the doctrine of direct effect under EU law and apply under rule 20 of the Tribunal Procedure (First-tier Tribunal) Rules 2014 for an extension of time to provide a notice of appeal to that Tribunal (paras 39-43).

The result is that after a legal battle of several years, an ‘extended family member’ who is refused a residence card should always have a right of appeal to the First-tier Tribunal.

One final thing to note is that despite the fact that by the time of the final hearing the Home Secretary had accepted that the appellant should be granted a residence card, the Upper Tribunal decided to give a fully reasoned decision in light of the lengthy delay by the Home Office in resolving this case, which had led the appellant to suffer “ongoing uncertainty in connection with her immigration status” (para 29).

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