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.

July 16, 2020

The Points Based System – is 2021 the year of change?

On 13 July Home Secretary Priti Patel announced further details about the Home Office’s new points based system (PBS). This expands on the policy statement initially released in February 2020 covered in our update here.

The New PBS has been described by the Home Office as a welcome simplification of the current system. It ties into the end of the right of freedom of movement for EEA Nationals from 1 January 2021. The system will apply to all European and non-European applicants. The 132 page guidance document can be found here. We have summarised the key points for employers and applicants below.

The new Skilled Worker Visa

The Tier 2 General route will be re-branded as the Skilled Worker route. Applicants will need a job offer skilled at A-level or equivalent from a licenced sponsor, and they will need to speak English to an approved level (50 points). They will then need another 20 points from tradeable categories based on prior education, higher salaries and shortage occupation roles. See our above e-alert for more details. Current holders of Tier 2 General visas will in future extend their visas under the Skilled Worker route.

Significant changes which will be introduced on 1 January are:

Removal of the Resident Labour Market Test. Employers will welcome the removal of this complicated and time consuming requirement to advertise roles to the UK resident workforce prior to sponsoring a visa. This simplification will speed up the visa application process for sponsors by a month. Sponsors will still need to fill a genuine vacancy, and met the skill and salary thresholds required for that role.
Removal of the Tier 2 General Restricted Cap. A key change is the removal of the monthly cap on the number of restricted Tier 2 General visas issued by the Home Office (restricted visas are typically issued to new hires to a business). This means there will be no limit on the number of skilled workers who can come to the UK under the New PBS. This change will again speed up the visa process by up to a month enabling quicker recruitment in this area.
More flexibility for in-country switching between visa routes. From 1 January the Home Office will allow most migrants to apply to switch from one immigration route to another category from within the UK if they meet the criteria of the new routes. This welcome change will assist sponsors and visa holders alike – it will save costs, minimise disruption and enable visa holders to continue to work for their sponsors from within the UK during the application period. This switching concession will not be available to visitors to the UK.
Tier 2 General sponsor licences will be automatically converted to Skilled Worker licences. Sponsors’ Tier 2 General licences will be automatically switched by the Home Office to a Skilled Worker licence which matches the conditions of their existing licence. Sponsors will not need to take any steps to do this.
Removal of the “cooling off period”. The cooling off period (which prevents most Tier 2 visa holders from returning to the UK in this category for 12 months following the termination of their visa) will no longer apply to Skilled Worker Visas. This will allow Skilled Workers visa holders to apply to return to the UK immediately after their visa expires. This will be welcomed by all users of the PBS.

The continuation of Tier 2 ICT Visas

Tier 2 ICT visa transfers enable businesses to transfer existing skilled employees to the UK for a time limited basis. This route will not change substantially under the New PBS. Roles still be required to be skilled at degree level with the existing minimum salary requirements of £41,500 or the SOC code level (if higher) applying. Unlike under the Skilled Worker visa applicants will still not be required to demonstrate that they can speak English as part of the application and the route still will not lead to permanent residency in the UK.

Applicants require 12 months prior group service. In a change to the current rules, the released guidance suggests that all applicants, including those who will earn over £73,900 a year, will need to have 12 months prior service with a group company immediately before applying. This removal of the service requirement for higher earners will be problematic for newer hires. They will instead need to look to the Skilled Worker route.
Change to cooling off period. Whilst the 12 month cooling off period will still apply to Tier 2 ICT visa holders it will be relaxed and more flexible for shorter-term assignments. The rules will instead allow ICT visa holders to hold entry clearance or leave to enter or remain for up to five years in any six-year period, without the cooling off period applying. This concession is good news for sponsors who want flexibility for shorter term transfers to return to the UK for assignments in future without the cooling off period applying.

European Nationals

Don’t forget the EUSS scheme. All EEA nationals who arrive in the UK before 31 December 2020 need to register under the EUSS to preserve their rights to remain in the UK. This application must be made by 30 June 2021 but we recommend it is submitted as soon as possible.
The position from 1 January 2021. From the start of 2021 all EEA nationals will need to apply for a visa under the New PBS to come and work in the UK.
The end of in person biometric appointments. From 1 January most EU applicants will not need to attend a visa application centre to enrol their biometrics but will provide face scans via a smartphone app. This is part of the longer term strategy to move to self-enrolment for most applicants for most visa routes.

Other changes

Omission of some routes from the guidance. The guidance does not cover certain routes including the Tier 1 Investor and Sole Representative Visa. Whilst this is to be clarified, it is understood that these routes will not be impacted by the new PBS and will continue to operate in their current way.
New Highly Skilled Worker route. The Home Office has said that a standalone route outside of the New PBS will be opened for a small number of highly skilled workers without a job offer. This route will not open on 1 January 2021. Whilst the devil is in the detail, this route may offer the flexibility of the historic highly skilled migrant programme and complement the new Global Talent, Start-up and Innovator visa routes which have not been well used since they were introduced due to their complexity. We await the details with interest.
New Graduate Route – summer 2021. The graduate route will allow international students to remain in the UK to work for two years (or three years for PhD students) after graduating. This route resembles the former post study worker visa. Graduates will not need to be sponsored. This will be a very attractive and flexible route for employers who will not be required to pay the fees linked to Tier 2 visas under this route.
Introduction of the Electronic Travel Authorisation (ETA). Following in the footsteps of other countries such as the USA, the UK will introduce an ETA in stages through to 2025 for those who do not need a visa to come to the UK. It will be a light-touch process.
Increase to the Immigration Health Surcharge (IHS). From 1 October the IHS will increase from £400 to £624 per visa year per applicant. The guidance has announced an exemption from this charge for those under 18 or NHS, care workers and wider health workers.

This guidance note sets out useful additional information about the New PBS. Further detailed information will be released later on this year and will hopefully fill in some of the gaps in the current guidance. If you have any questions about the New PBS and how this will apply to your workforce please contact your current immigration adviser.

July 14, 2020

UK points-based immigration system – further details announcment

3 July 2020

Today the government has published further detail on the UK’s points-based immigration system.

The new system will take effect from 1 January 2021 once freedom of movement with the EU has ended. It will treat EU and non-EU citizens equally, which will mean changes to the way employers operate and recruit. To help you prepare, further detail has been published setting out:

The principles of the system – a single, global immigration system focused on the skills people have to offer.
Sponsorship of skilled workers – we are streamlining and simplifying the sponsorship system, and substantially reducing the time it takes to employ a migrant.
Detail on the immigration routes – the main economic migration routes for those wishing to apply to work, study or set up a business in the UK.
Supporting the UK economy

The coronavirus pandemic is the biggest national crisis we have faced in our lifetime. The new immigration system will support the UK economy by encouraging investment in the domestic UK workforce while ensuring that businesses can attract skilled workers from around the world.

Support for employers

An introduction to the new system for employers has already been published and we will continue to provide further information and resources to help you prepare your business for the new system.

We will continue to provide you with further information and support as the system is implemented.

Kind regards,

Home Office Communications