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:

1. The applicant may not necessarily know about the information you have considered or its significance, for example information obtained directly from another Government Department.

[…]

2. 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.

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.