- What are the Immigration Rules on deception?
- Avoiding mistakes that might be interpreted as deception
- Home Office policies on deception
- How to avoid bans based on deception
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 may be refused. If the application was for entry clearance, it can also lead to a ten-year ban on re-entry to the UK.
Following a Court of Appeal decision that drew a distinction between submission of a false document and the use of deception, this distinction has now made it into the immigration rules. The relevant rules are set out in Part 9 of the immigration rules at paragraphs 9.7.1 to 9.8.7. These must be read with paragraph 9.1.1 which sets out which sections of Part 9 do not apply to certain applications, for example Appendix FM.
There are Home Office policies that may be useful 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?
Discretionary refusals: false representations, documents or information
An entry clearance officer or Home Office official may refuse an application where false representations, information or documents have been provided. Paragraph 9.7.1 states that an application may be refused where:
in relation to the application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application:
(a) false representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant’s knowledge); or
(b) relevant facts are not disclosed.
This paragraph applies whether or not the applicant knows that a false document was given. The application can 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 June 2023. 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. The entry clearance officer may refuse the application under paragraph 9.7.1 on the basis that a false document was submitted.
Paragraph 9.7.3 is in identical terms to 9.7.1, but states that entry clearance or leave “may be cancelled” where false information or documents etc has been provided. Much of Part 9 does not apply to Appendix FM applications, however 9.7.3 does apply to people who have been granted leave under Appendix FM.
Another provision that allows an entry clearance officer or Home Office official to refuse an application is at paragraph 9.8.2 and relates to previous breaches of the rules:
An application for entry clearance or permission to enter may be refused where:
(a) the applicant has previously breached immigration laws; and
(b) the application was made outside the relevant time period in paragraph 9.8.7; and
(c) the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding.
This rule 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.
Paragraphs 9.8.2(a) and (c) also apply to Appendix FM entry clearance applications. The omission of (b) means that applications can be made before the time ban has passed and will not be refused for that reason.
Where an applicant has used deception but none of the other 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”. This can be found at paragraph 9.3.1, paragraph 8(g) of Appendix AF as well as paragraphs S-EC1.5, S-LRT.1.6 and S-ILR.1.8 for Appendix FM applications.
John applied for indefinite leave to remain as a skilled worker. The Home Office finds that although he declared the correct income in his immigration application, he had declared a lower income to HMRC. They refuse his application relying on paragraph 9.3.1 of the Immigration Rules.
Refusals on the basis of conduct like this are discussed in more detail in this blog post.
Automatic refusals: deception
Deception is defined in the guidance as where there is a deliberate intention to deceive by the applicant. There are two key effects of a finding of deception under these provisions:
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 relevant paragraphs in Part 9 of the main Immigration Rules are paragraphs 9.7.2. and 9.7.4. Paragraph 9.7.2 has the effect of causing any application in which deception is used to be refused. If entry clearance or leave has already been granted, this can be cancelled under paragraph 9.7.4. The test is “where the decision maker can prove that it is more likely than not” that deception was used.
Paragraph 9.8.1 combined with 9.8.7 row (f) means that where an applicant used deception in an application for entry clearance, any new application will be refused for a period of ten years from the deception.
Going back to the example above, if Roman knew that the CAS was counterfeit and the entry clearance officer could prove this was more likely than not, his application would be refused under paragraph 9.7.2. 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 June 2033) would also be refused.
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.
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 they cannot under any circumstances be accused of deception.
Alleged false documents
Sometimes an application will be refused because a Home Office official believes 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 been 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 it is more likely than not 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 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.
Home Office policies on deception
In some circumstances, the Home Office 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.
A guidance document on Document verification checks states 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.
The guidance on False Representation instructs decision makers as follow:
You must consider whether an innocent mistake has, or could have, been made. You must not refuse on grounds of false representations if there may have been an innocent mistake, or because there are minor but immaterial inaccuracies, such as typographical errors in the application: for example, if 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 said they have an income of £40,000, but has provided evidence only for £4,000, you may take the view that the higher figure was an innocent mistake but may still refuse the application on eligibility grounds if on the evidence provided the required income 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.
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.
- 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 false information, representations or documents, or 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.
This article was originally published in March 2017 and has been updated so that it is correct as of the new date of publication shown. I am grateful to Nath Gbikpi for her assistance with both the original and a previous update.