August 7, 2020

You can’t just decide to not obey the law, immigration officials informed

On 4 August 2020, the Home Office issued new guidance to its civil servants on how to respond to immigration appeals that the department has lost. The 18-page document can be found here (pdf download). For the most part, the guidance is welcome. Anyone who has ever won an appeal knows the pains of writing to the post-decision team again and again trying to actually get the decision implemented. The new guidance looks to eradicate or at least minimise that.

The guidance acknowledges straight off the bat that:

It is unlawful to “deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it” Mersin (2000) EWHC Admin 348.

This is, unfortunately, how it feels for a lot of practitioners. In the most recent appeal I did, it took four months and a pre-action protocol letter complaining about the delay before the decision was implemented.

Entry clearance appeals are even worse because applicants usually need to hand in their passport, meaning it’s common to wait for the better part of six months from the appeal being allowed to the visa being issued. That may not sound like long but that’s potentially another six months of separation for a torn-apart family, or six months of lost employment income for someone struggling to pay the bills for lack of a right to work.

Presumably this new approach is an attempt to reduce any complaints/claims arising from delay. The guidance acknowledges those risks:

An allowed appeal should be implemented promptly, otherwise the individual may not be able to access benefits and services to which they are entitled, and they may bring a judicial review challenging the delay in implementation.

Another useful bit of clarification is that, where the determination finds that the relevant Immigration Rules are met, the Home Office agrees that it should grant the leave or entry clearance provided for in those rules.

This is particularly important in Appendix FM cases. There was a period of confusion when the Immigration Act 2014 was implemented because appeals could no longer be brought on the basis that the decision was not in accordance with the Immigration Rules. We had to do a detour and explain why that misapplication of the rules was a breach of human rights in order to appeal against certain decisions. That led to a lot of people who were successful being granted leave on the ten-year route to settlement rather than the five-year route, because the Home Office considered they had been successful on “human rights grounds”. Being forced to wait double the time for settlement means spending huge chunks of cash on extension applications. Having this clarity is a welcome addition, even if it does come five years late.

The guidance is also arguably more generous than necessary. It notes that where a parent’s appeal has been allowed but where a dependent child did not appeal the same decision, the caseworker:

should consider whether implementation of the allowed appeal has implications for the dependants and, if so, take the necessary action.

It also does a decent job of telling officials to stop moaning about judges and get on with the job:

You cannot decide not to implement an allowed appeal because you think the Tribunal had no jurisdiction to allow the appeal. Any dispute about the Tribunal’s jurisdiction must be raised at the appeal or in an onward appeal. Where the jurisdiction of the Tribunal is not successfully challenged, the determination of the Tribunal will be valid and must be implemented.

The Tribunal is responsible for interpreting the law. Where the Tribunal allows the appeal any disagreement about the decision must be raised at the appeal or in an onward appeal, otherwise the appeal must be implemented. You cannot refuse to implement an allowed appeal simply because you do not agree with it.

The one part where this guidance falls down is where it talks about facilitating re-entry for people who were removed from the UK before their appeal. This might be if their human rights claim was certified as “clearly unfounded” or — the one that still annoys me the most — people who were removed during pending EU law appeals.

In those cases, you would expect the Home Office to do the legwork. After all, you’ve won your appeal and been considerably inconvenienced by potentially having left your job and your family behind.
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Not so, says the guidance. The template letter to be issued to successful appellants says that they must formally apply to return online (selecting “the return to the UK” option at this link). So that’s exactly what I did, filling in the form from the point of view of someone whose appeal was successful.

There is no application fee but the process is as tortuous as ever. Why do you need to know my parents’ names and every country I’ve travelled to in the last ten years? They also have the audacity to make you go through the usual appointment booking process, meaning you need to register on VFS Global or TLSContact websites with their Kafkaesque technical issues. You are then treated like any ordinary punter and are even offered paid-for slots at the visa centres.

The document is silent on who pays the airfare for a successful appellant to return. No doubt the Home Office will try to dodge responsibility in the usual manner.

The idea that someone who was removed on foot of an unlawful decision should then need to pay for their flight back to the UK, or for appointments to get their return visa, sounds outrageous but is potentially not illegal. After R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 in the Supreme Court, there was a rush of cases where people tried to return pending their appeals, but the Court of Appeal said that there is no presumption in favour of return even if the underlying decision was unlawful.

All in all, this guidance does a decent job of ironing out some creases but I suspect it’s just going to encourage more litigation on some bigger issues.

July 28, 2020

can EU citizens with pre-settled status claim Universal Credit?

It was the worst of times; it was the worst of times. As a result of the Home Office gridlock caused by the coronavirus pandemic, EU citizens seeking to apply for post-Brexit immigration status under the EU Settlement Scheme have been disadvantaged in various ways, including longer processing times. The application deadline looms, but the government has ruled out an extension.

In a further blow, those already granted pre-settled status who are facing financial difficulties as a result of the pandemic are finding that their entitlement to claim benefits is more complicated than they might have expected. In this article, we’ll explain the law on claiming benefits and then discuss how it applies to people with pre-settled status trying to claim Universal Credit in particular.

Overview: habitual residence and right to reside

Since 1994, eligibility to claim public funds in the UK has been determined in part by the “habitual residence” test. The habitual residence test can be complex and is based on factors such as length of residence in the UK and intention to reside here in future.

Failure to meet the test meant that you are treated as not being “in Great Britain” — or in some benefits regulations as being “a person from abroad” — and so ineligible to claim benefits. It applies to anyone from abroad, including British citizens returning to the UK, unless they fall into an exempt group (see below).

The Social Security (Habitual Residence) Amendment Regulations 2004 require people — including EU citizens — who want to claim certain benefits to pass an additional “right to reside” test. In effect, this creates a two-step process: if you pass the right to reside test, you will then be assessed for habitual residence. Someone who does not have a right to reside automatically fails the habitual residence test, unless they are exempt from the test entirely.
Which benefits are affected?

The full two-part test applies to means-tested non-contributory benefits, where eligibility does not depend on National Insurance contributions. These include income-based Jobseeker’s Allowance, income-related Employment and Support Allowance, Housing Benefit and Universal Credit.

Other benefits are subject to the habitual residence test without having to prove a qualifying right to reside: Disability Living Allowance, Personal Independence Payment, Carer’s Allowance and Attendance Allowance.

In the case of contributory benefits, where eligibility is based primarily on National Insurance contributions and which are not means-tested, EU citizens again need only meet the habitual residence test and not the right to reside test. These benefits include contribution-based Jobseeker’s Allowance and contribution-based Employment and Support Allowance.

In the rest of this article we’ll focus on Universal Credit, which is being rolled out as one of the main welfare payments, including to people who are unemployed.

Who is exempt from the habitual residence test?

An EU citizen who is a “qualified person” as a worker or a self-employed person under the Immigration (European Economic Area) Regulations 2016 is exempt from the habitual residence test entirely. That also means they don’t have to pass the right to reside test. The same exemption also applies to their direct family members, such as children and spouses.

In practice, EU citizens who are exempt from the habitual residence test because they are a worker or self-employed still need to demonstrate their status, by providing evidence such as payslips, P60s and employment contracts in the case of workers, and business bank statements, proof of HMRC registration, tax records, receipts and invoices if they are self-employed.

The Universal Credit Regulations 2013 also exempt anyone who has acquired permanent residence under EU law as a worker or self-employed person who has ceased activity (regulation 15(1)(c) of the EEA Regulations), a family member of such a person (regulation 15(1)(d)) and anyone who acquires permanent residence following the death of such a person (regulation 15(1)(e)). In these cases, applicants should provide evidence of their permanent residence, as well as evidence of the basis on which it was acquired.

Other exempt groups include refugees and anyone granted Discretionary Leave or Humanitarian Protection, although that is beyond the scope of this article.

For everyone else, the first step in establishing eligibility for Universal Credit is proving their right to reside.
What counts as a right to reside?

EU citizens granted settled status under the EU Settlement Scheme have been granted indefinite leave to remain under the Immigration Rules. That meets the right to reside test. Provided the person is habitually resident in the UK, they are eligible to claim Universal Credit. (At least from an immigration point of view — there are other eligibility rules, such as not having enough savings to fall back on.) The same applies to EU citizens with permanent residence acquired under the EEA Regulations (other than on the grounds mentioned above, which exempt them from the habitual residence test entirely) for the duration of the transition period.

But we’re here to talk about people with pre-settled status. Pre-settled status does not meet the right to reside test. This is because of the Social Security (Income-related Benefits) (Updating and Amending) (EU Exit) Regulations 2019. As the explanatory notes for the regulations state (my emphasis):

These Regulations amend the income-related benefit regulations [including the Universal Credit Regulations 2013] to reflect that a new right to reside has been created for nationals of European Economic Area states (“EEA nationals”) in Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971 (c. 77), in the form of limited leave to enter, or remain in, the United Kingdom. The effect of these Regulations is that this new right to reside [ie pre-settled status] is not a relevant right to reside for the purposes of establishing habitual residence.

In other words, while pre-settled status is obviously a right to reside in ordinary language — it allows you to live in the UK — it does not satisfy the “right to reside test” in benefits-speak.

That doesn’t mean that it is impossible for people in this position to satisfy the right to reside test. It just means that flashing pre-settled status won’t cut it. There are other ways that people with pre-settled status can meet the test.
How can EU citizens with pre-settled status meet the right to reside test?

EU citizens not exempted from the habitual residence test thus cannot rely on pre-settled status alone to meet the right to reside test and must show that they have an alternative right to reside under the EEA Regulations 2016. Regulation 9 of the Universal Credit Regulations 2013 says that there are a number of residence statuses that do not count, including:

Initial right of residence for three months (see regulation 13 of the EEA Regulations)
Jobseeker (regulation 6(1) of the EEA Regulations)
Family member of a jobseeker (regulation 7 of the EEA Regulations)
Zambrano carer (regulation 16(5) of the EEA Regulations)

So what does that leave? Putting aside these exclusions, and anyone who is exempted from the habitual residence test altogether, there are several types of status which demonstrate a right to reside:

Student (regulation 4(d) of the EEA Regulations)
Self-sufficient person (regulation 4(c))
Worker or self-employed person who has ceased activity (regulation 5)
Family member of the above

In each of these cases, evidence should be provided of how the applicant has a right to reside. In cases where the right to reside stems from a family member, evidence should be provided of how they meet the right to reside test, as well as how the applicant is related to them. The Citizens’ Advice website provides helpful resources on the right to reside test and how it can be met by EU citizens on pre-settled status.
How can EU citizens with a right to reside meet the habitual residence test?

The next step after demonstrating a qualifying right of residence is to show that the wider habitual residence test is met. As noted above, however, this does not apply to anyone exempted from the test entirely, including workers and self-employed people.

The classic test for habitual residence, which for these purposes is synonymous with “ordinary residence”, comes from the House of Lords case of R (Shah) v London Borough of Barnet [1982] UKHL 14:

“ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

There is, of course, one important exception. If a man’s presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence […] And there must be a degree of settled purpose.

Meeting the habitual residence test is reasonably straightforward for applicants who have lived in the UK over the last five years, where the centre of their life is in the UK. More recent arrivals, and anyone who splits their time between different countries, may need to provide more extensive evidence of their circumstances. The type of evidence that can be submitted includes:

Evidence of when they arrived in the UK (e.g. passport, travel tickets, tenancy agreement)
Evidence that the UK is their main home (e.g. tenancy agreement or mortgage statement, payslips, letter from GP or medical records, HMRC records, evidence of membership of local clubs or societies, bank statements)
Evidence that their future lies in the UK (e.g. evidence of a job offer, evidence that their children have been enrolled in school)

Legal challenge to pre-settled status not being a right to reside

In the recent case of Fratila and Tanase v SSWP [2020] EWHC 998 (Admin), the High Court rejected the argument that excluding pre-settled status from being a qualifying right to reside is discriminatory on the ground of nationality. The Child Poverty Action Group, representing the claimants, said that it will appeal the decision.

Whatever the outcome of the appeal, the government has a moral obligation to ensure that members of the public, including EU citizens, who are facing destitution as a result of the pandemic, are able to meet their basic needs. In such exceptional circumstances, it would be appropriate and just to extend access to public funds to prevent the most vulnerable from falling through the cracks — even in the absence of a legal obligation to do so.

July 17, 2020

General grounds for refusal: alleged deception and innocent mistakes

Making a mistake on an immigration application form can be disastrous. If the mistake is interpreted by officials as an attempt to mislead or deceive, the application will inevitably be refused. If the application was for entry clearance, it will also lead to a ten-year ban on re-entry to the UK.

There are a number of relevant court cases and Home Office policies that can help if such a situation does arise, although of course it is far, far preferable to avoid such a problem in the first place.

What are the Immigration Rules on deception?

Automatic refusals

There are two key effects of a finding of deception:

1. The application concerned will always be refused no matter what.

2. If the application was for entry clearance, future applications for entry clearance will automatically be refused for a period of ten years from the date of deception.

The actual rules that have these effects are set out in Part 9 of the Immigration Rules, and for visitors in Appendix V. The relevant paragraphs in Part 9 of the main Immigration Rules are paragraphs 320(7A) and 7(B) for entry clearance, as well as paragraph 322(1A) for leave to remain applications. These are written in a very confusing way, unfortunately.

Paragraphs 320(7A) and 322(1A) have the effect of causing any application in which deception is used to be refused. Paragraph 320(7B)(d) combined with (ii) causes future entry clearance applications to be refused for ten years.

In particular, paragraph 320(7A) states that an application is to be refused:

where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.

This paragraph applies whether or not the applicant knows that he or she has used deception. The application will be refused if a false document was submitted, irrespective of whether the applicant knew that it was a false document.

Roman has submitted an application for a student visa from outside the UK on 30 September 2019. He submitted a Confirmation of Acceptance for Studies which turns out to be counterfeit. Roman explains that his application was submitted through an agent, and he did not know that the CAS was counterfeit. Even if the entry clearance officer believes Roman, they will have to refuse the application under paragraph 320(7A) on the basis that a false document was submitted.
If the entry clearance officer finds, in addition, that the applicant knew the document to be false, and therefore used deception in the application, he or she should also refuse the application under paragraph 320(7B). It states that an application is to be refused

where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach) by:

(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);

unless the applicant:

(ii) used Deception in an application for entry clearance more than 10 years ago;

In practice, paragraph 320(7B) means that, where an applicant used deception in an application for entry clearance, any new application will be refused for a period of 10 years from the deception.

Going back to the example above, if Roman knew that the CAS was counterfeit, the entry clearance officer would refuse his application both under paragraph 320(7A) and paragraph 320(7B)(ii). This means that not only his current application would be refused, but any new application for entry clearance(with the exception of an application under Appendix FM) submitted during the ten year period following the application (that is, until 30 September 2029) would also be refused.
For visitors the effect of the rules is the same but the rules are slightly differently drafted, appearing at Appendix V:

V 3.6 An application will be refused where:

(a) false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge); or

(b) material facts have not been disclosed, in relation to their application or in order to obtain documents from the Secretary of State or a third party provided in support of their application.

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Again, the effect of paragraph V3.6 will be that, where a false document was submitted, the application will be refused. If, in addition, the Entry Clearance Officer finds that this document was used deceptively, that is, the applicant knew the document to be false, the application will also be refused under paragraph V3.7, effectively resulting in a 10 year entry ban:

V 3.7 An application, except an application for an extension of stay as a visitor, will be refused if

(a) the applicant previously breached UK immigration laws as described at V 3.9; and

(b) the application is made within the relevant re-entry ban time period in V 3.10 (which time period is relevant will depend on the manner in which the applicant left the UK).

Paragraph V3.9 says:

V 3.9 An applicant, when aged 18 years or over, breached the UK’s immigration laws:

(d) if deception was used in relation to an application or documents used in support of an application (whether successful or not).

These general rules do not apply to applications made within the UK for leave to remain and do not apply in Appendix FM family applications. There are other provisions that might apply in these situations, though.

Discretionary refusals

As a well as the automatic or mandatory refusals on deception grounds there are a number of provisions which permit an entry clearance officer or Home Office official to refuse an application for current or past deception. It should not be assumed that there is any reluctance to exercise these powers; the wording of many of these rules is that entry clearance “should normally be refused”. This means there is a presumption that the application will be refused.

Paragraph 320(11) of the Immigration Rules is one example of this type of rule. It says an application should normally be refused:

(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:

(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.

This rule applies to Appendix FM as well as to other types of application and is sometimes used to refuse applicants with a very poor immigration history in the UK. You can read more about the rule in a previous blog post.

In addition, for Appendix FM applications specifically, there are discretionary grounds for refusal on the basis of deception under paragraphs S-EC.2.2 (for entry clearance) and S-LTR.2.2 (for leave to remain). Paragraph AF 9(a) has a similar provision for Appendix Armed Forces applications.

Where an applicant has used deception but none of the above grounds apply — for example, because the applicants attempted to deceive a body other than the Home Office — the application may be refused relying on the more general grounds for refusal relating to an applicant’s “conduct”. These are found at:

paragraph 320(19) for entry clearance
paragraph 322(5) for leave to remain
V3.3 for visit visas
AF 8(g) for the armed forces
S-EC1.5, S-LRT.1.6 and S-ILR.1.8 for Appendix FM and private life applications
John applied for indefinite leave to remain as a Tier 1 (General) migrant. The Home Office finds that although he declared the correct income in his immigration application, he used deception by declaring a lower income to HMRC. They refuse his application relying on paragraph 322 (5) of the Immigration Rules.
Refusals on the basis of conduct like this are discussed in more detail in this blog post.

Avoiding mistakes that might be interpreted as deception

Given the length of some immigration application forms and the wide range of questions, it is easy to make a mistake. Some immigration officials can be very suspicious people, and even where you answer a question incorrectly but include with the application information that shows that the answer was incorrect — which surely shows you had no real intention to deceive — deception is still sometimes alleged.

The main types of accidental “deception” I come across in my work are:

Failure to declare minor criminal convictions such as driving offences
Wrong answers about previous refusals or immigration history
Allegations of use of false documents
Let us have a think about each in turn.

When is a conviction a conviction?

The first problem arises where the applicant either does not really understand that a minor conviction where the sentence was only a fine is nevertheless still a conviction. This seems obvious to lawyers, judges and Home Office officials but when many people hear “criminal conviction” they associate that with prison and with serious or dishonest offences.

Entry clearance officers take a strict line in such cases. Where there is a failure to declare a conviction despite a question in the form asking for disclosure, it is almost inevitable that the application will be refused on deception grounds.

Immigration history

I once came across a case where a man who had visited the UK on countless previous occasions was refused entry for his son’s wedding because he incorrectly stated that he had not been refused entry to any country. In fact he once had been refused somewhere else, as the passport that he submitted showed. The decision was withdrawn and a visa issued, but not without a very urgent legal fight.

As a general rule applicants should be encouraged to disclose absolutely everything that have ever happened, including when they are not strictly speaking answering to the question asked. For example, applications for entry clearance contain a question as to whether the applicant was ever refused a visa application. Strictly speaking, this relates to application for entry clearance, not for leave to remain. However, an applicant who has never been refused a visa, but has been refused leave to remain, would be better off disclosing the leave to remain refusal too, to be on the safe side and ensure that s/he cannot, under any circumstances, be accused of deception.

Alleged false documents

Sometimes an application will be refused because a Home Office official will suspect that a false document was submitted. This suspicion is sometimes unfounded and sometimes as a result of perfunctory investigations.

Sasha applies for a visit visa and includes a letter from her employer stating that she has ben given a leave of absence for three weeks for the purpose of her visit.

A Home Office official calls Sasha’s employer to verify her employment and the letter. The person answering the phone is busy, does not know Sasha and thinks it is a personal call so hangs up.

The Home Office official concludes that Sasha does not work there and that she submitted a false document. Her application is refused and she will be banned from re-entering for ten years.

One can see how easily this sort of misunderstanding could arise where an applicant works for a big company or a company with a high staff turnover.
In these cases, it is important for the applicant to challenge the refusal, as it could be very difficult to disprove the allegation at a later stage. The first step to challenge the refusal is to request disclosure of the Document Verification Report (DVR). A DVR is a document which should be produced by the person verifying a document, setting out the steps that officer took to verify the document, and recording the results of the verification check.

The DVR should give a better idea of what the allegation is and whether there was a misunderstanding. It will also make it clearer what kind of evidence should be gathered to rebut the allegation that a document was false.

Does deception have to be deliberate?

Deception for the purposes of paragraph 320(7B) and 322(11) is defined in paragraph 6 of the Immigration Rules as:

making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.

The definition does not, therefore, include an explicit requirement that the deception needs to be deliberate.

Case law, thankfully, says otherwise. The Court of Appeal has held that a deliberate intention to deceive is needed when refusing under paragraph 322 (1A) of the Immigration Rules.

More recently, in the case of R (Agha) v Secretary of State for the Home Department ( False document) [2017] UKUT 121(IAC),the Upper Tribunal found that

For a document to be a false document under the provision of the Immigration Rules at V3.6(a) of Appendix V I find, relying on AA (Nigeria), there must have been an element of dishonesty in its creation and if this is not immediately obvious in a case of an inaccurate document then that element must be engaged with in any refusal.

Interestingly, for a document to be considered false, there needs to be an element of dishonesty, but this dishonesty does not need to come from the applicant. In this case, the false document was the appellant’s passport, which contained a stamp showing his re-entry in Pakistan one month earlier than he had actually entered the country. The question was not whether the appellant used deception, but rather whether the Pakistani immigration official did. If it could be proved that he did, then the application should be refused as a false document had been submitted.

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The above cases refer to the first consequence of submitting a false document; the application will be refused if the document submitted was false, independently of whether the applicant knew the document to be false.

When immigration officers want to refuse the application also on the basis that the applicant used deception, therefore imposing a ten-year re-entry ban, deception must come from the applicant. The immigration tribunal has addressed the issue in several cases, generally interpreting the mandatory refusal grounds in an appropriately restrictive way given their draconian consequences.

In the case of Ozhogina and Tarasova (deception within para 320(7B) – nannies) Russia [2011] UKUT 197 (IAC), Mr Justice Burton also concluded that

25. […] for the purpose of qualifying for the ten year treatment under paragraph 320(7B) the nannies must be shown to have made the false statements with the deliberate intent of securing advantage in immigration terms.

Home Office policies on deception

Several policies published by the Home Office confirm that applicants should not have their applications refused on the basis of deception if they made a genuine mistake. In some circumstances, the Home Office also has an obligation to give the applicant a chance to respond to an allegation of dishonesty, as discussed in further detail in this blog post.

The guidance on General Grounds for refusal confirms at page 99:

Deceitful or dishonest dealings with Her Majesty’s Government (HMG)

If a person attempts to deceive or otherwise be clearly dishonest in their dealings with another department of government, they fall for refusal under character, conduct and associations grounds.

Examples might include, but are not limited to:

fraudulently claiming or otherwise defrauding the benefits system
providing dishonest information in order to acquire goods or services, for example, providing false details in order to obtain a driving licence
provided false or deliberately misleading information at earlier stages of the immigration application process, for example:
providing false bio-data
claiming to be a nationality they are not
concealing conviction data
You must assess the extent to which false information was provided and what, if anything, was intended or actually gained as a result. For example, it is not appropriate to refuse someone for making a genuine mistake on an application form or claiming something to which they reasonably believed or were advised they were entitled.

This same guidance also contains a useful paragraph on the consequences of failing to declare convictions:

Failing to declare convictions

There is no specific provision to refuse for failing to declare criminal convictions. However, you must consider if a failure to do so:

amounts to deception because false representations are being made
false documents or information are submitted
material facts are not disclosed

You must consider refusing an application on character and conduct grounds if a person fails to declare a criminal conviction, especially when explicitly asked to do so on an application form. However, an application must not be refused if you believe the person has made a genuine error.

For example, a person may not have been aware that they needed to declare a fine for a motoring conviction, however, this is different to a person who fails to declare a conviction which resulted in a period of imprisonment. Each case must be considered on its own merits.

A guidance document on Document verification checks also confirms at pages 9 and 10 that:

You must not assume that an applicant who has submitted a false document has also used deception. The applicant has used deception if they knowingly submitted a false document. You must consider whether, on the balance of probabilities, the applicant knew they were submitting a false document. Examples of evidence that might support this finding include:

• evidence that the person paid someone to provide the document and that person was not authorised to accept such payments and/or produce documents of that type

• the evidence relates directly to the person’s circumstances and they should therefore have known it is false, for example it is reasonable to expect a person to know what qualifications they have or where they studied or worked

• the evidence contradicts claims or evidence that the applicant has previously made or submitted

• there are obvious deficiencies in the quality of the evidence that would be apparent to the applicant

The above is not an exhaustive list and you must consider any other relevant evidence that an applicant use deception.

It goes on to confirm that:

Even if one or some of the above applies, you must also consider whether the applicant may have a plausible explanation for why they did not know the document was false.

Finally, the guidance states that, where a false document was submitted but there is doubt as to the intention to deceive, applicants should be given a chance to explain any potential false documents by being invited to an interview.

More recently, the guidance on False Representation instructs decision makers as follow:

You must consider whether an innocent mistake has been made. You must not refuse on grounds of false representation if it is likely that there has been an innocent mistake or because there are minor but immaterial mistakes, such as typographical errors, in the application: for example, an applicant has given an incorrect postcode or misspelt a name on their application form. It may still be right to refuse the application if the mistake means you are not satisfied that the requirements of the rules are met. For example, if the applicant has claimed an income of £40,000, but has provided evidence for £4,000, you may take the view that the higher figure is an innocent mistake but may still refuse the application if on the evidence provided the required income threshold under the rules is not met.

This is also the guidance which instructs decision-makers on when and how to give applicants the opportunity to respond to an allegation of dishonesty, mentioned above.

There is also this common sense guidance to immigration officials, thanks to a Freedom of Information Request by a friend of the blog:

The ECO needs to be satisfied that deception has been employed and/or the applicant intended to deceive the ECO. The majority of cases where this requires the ECOs judgement will relate to how an applicant has completed the VAF, most usually in relation to the questions about previous visa refusals or the grant or refusal of Leave to Remain (LTR). A prime example of this is when an applicant ticks the wrong box on the VAF in answer to the question ‘have you previously been refused a visa’ – e.g. an applicant has ticked that they have not previously been refused a UK visa, but has presented a passport containing a refusal stamp and/or a previous refusal notice. This should not be considered to be deception – therefore paragraph 320 7 (a) should not apply.

The source is OPI 177 issued in 2009, released under Freedom of Information request 19343/20435/23557 by the Foreign and Commonwealth Office.

How to avoid bans based on deception

Rather obviously, not committing deception or anything that might be interpreted as deception is by far the best way forward. This means:

Double checking application forms before they are submitted; many clients will tell you that their applications were submitted through agents. This is never a valid reason to submit false or inaccurate information, and the Home Office will always hold them responsible for any information contained in the form, as they did, at the end of the day, sign the form.
Paying close attention to potential problem questions, like previous convictions and previous immigration history (see above). If in doubt as to whether an issue that arose in the past will be considered a conviction, it would be a good idea to raise it in the application. It is often better to disclose more than less.
Checking passports to make sure the applicant has not forgotten anything and has given correct dates in relation to past travel history.
Telling the truth!
Nevertheless, accidents happen and sometimes applicants are refused for deception either because of a mistake or a misunderstanding. In these cases, the applicants can (and should be encouraged to) challenge the refusal by submitting new evidence explaining why and how a mistake was made. Applicants should be particularly encouraged to challenge decisions when these attract a ten-year re-entry ban.