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Challenging deception findings in immigration and visa applications

Deception is defined within Paragraph 6 of the Immigration Rules as follows:

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

An allegation of Deception will result in the refusal of the instant application and can have very serious consequences for future immigration applications. Paragraph 322 (1A) provides that an application for leave to remain must be refused in the following circumstances:

“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.”

Paragraph 323 provides that leave may be curtailed if deception was used in seeking (whether successfully or not) leave to remain or a variation of leave to remain.

Perhaps most importantly, Paragraph 320(7B) of the Immigration Rules provides that where an applicant has previously used Deception in an application or in order to obtain documents in support of the application (whether successful or not) any entry clearance application must be refused unless the applicant used Deception in an application for entry clearance more than 10 years ago.

This means that, if Deception is found, the instant application will be refused and (unless seeking to enter the UK on limited human rights grounds) the applicant will not be granted permission to return to the UK for at least 10 years.

In order for deception to be found there must be dishonesty involved rather than a simple mistake. This was made clear by the Court of Appeal in AA (Nigeria) [2010] EWCA Civ 773 where it was held, at paragraph 55:

“In my judgment, however, it would be grotesque to ascribe to the Secretary of State an intention to use “Deception” to mean something lacking in dishonesty.”

The need to consider the mental state (or ‘mens rea’) of the Applicant when finding Deception was re-iterated by the Upper Tribunal in Ahmed (general grounds of refusal – material non disclosure) [2011] UKUT 351 where it was held, at paragraph 15:

“All aspects of paragraph 322(1A) and its sister paragraphs 320(7A), 321(i) and 321A(2) are treated as ‘Deception’ under paragraph 6 of HC 395, which strongly implies that mens rea is required on the part of the applicant. If that were not so, it would lead to the extraordinary situation that a person who had made a perfectly honest mistake in filling out his application form for further leave to remain would be subject to a re-entry ban under paragraph 320(7B)(d) for “using Deception” in his previous application. The consequence is positively draconian under paragraph 320(7B)(d)(ii) if an applicant for entry clearance “used Deception” in a previous application for entry clearance. The re-entry ban would be for ten years. That can hardly be the intended consequence of a wholly inadvertent failure to answer correctly one of the questions in an application form. To include such a failure under the rubric of ‘Deception’ would divorce that word, used as a term of art, from its ordinary meaning, which is not the way in which the Immigration Rules are normally construed.

It is not clear why, having identified that Deception as defined by Paragraph 6 requires that the applicant himself must have been dishonest, the Upper Tribunal considers that ‘all aspects of paragraph 322(1A) are treated as Deception under paragraph 6.

Whereas paragraph 322 (1A) provides for refusal where false representations have been made ‘whether or not to the applicant’s knowledge’, the definition of Deception does not include this phrase. Consequently, it may be argued that, paragraph 322 (1A) has a broader application than Deception as defined in Paragraph 6 and applied in Paragraph 320 (7B).

It is clear that, for paragraph 320(7A) and the mandatory 10 year bar to apply, it must be the applicant himself who was dishonest. Additionally, the Upper Tribunal held in Ozhogina and Tarasova (deception within para 320(7B) – nannies) [2011] UKUT 197 (IAC) that “the use of the deception must have been… with the deliberate intent of securing advantage in immigration terms by the use of a false document known to be false”. Our immigration barristers have successfully relied on this decision to persuade the Home Office that a false document which was irrelevant to the application did not engage paragraph 320(7B).

Therefore, it is not enough for the Home Office to be satisfied that a false document was used or a false representation was made in an application in order to also find that there was Deception. The Home Office would have to find, in addition, that the applicant knew the document or representation was false and submitted it with the deliberate intention of securing an immigration advantage. Although it is for the applicant to prove most elements of any immigration claim, it is for the Home Office to prove that an applicant used Deception.

The Home Office would have to prove both that the document or representation was false, and that the applicant knew that it was. There are obvious difficulties in proving a person’s state of mind and the way in which the Home Office’s burden of proof can be discharged was discussed in detail by the Upper Tribunal in Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 (IAC). This was a case which was decided ‘on the papers’ without a hearing which posed additional difficulties in terms of establishing the appellant’s state of mind as he was not cross examined.

Here it was made clear that if an application form is false in a material way, this may be relied on by the Secretary of State as prima facie evidence establishing dishonesty. This inference can be strengthened by other facts. The example given in the determination is when a criminal conviction which was not disclosed in an application occurred shortly before completion of the application form. Here, the conviction must have been high in the applicant’s mind and any explanation based on oversight would carry little weight.

However, it is always open to an appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the burden switches back to the Secretary of State to answer that evidence. In an oral hearing, the Secretary of State would be able to challenge the innocent explanation by cross examination. In an appeal on the papers, the Upper Tribunal cautioned against finding dishonesty where there is no evidence from the Secretary of State to counter the explanation given.

Where Dishonesty is alleged in a refusal which triggers a right of appeal, the applicant will have an opportunity to offer an innocent explanation for any false document or representation to an Immigration Judge. Where there is no right of appeal but a right of administrative review, the applicant should take this opportunity to provide evidence supporting an innocent explanation.

Administrative review is usually conducted only on the basis of the evidence which was before the original decision maker. Paragraph AR 2.4 of Appendix AR limits the circumstances in which additional evidence may be considered as follows:

“AR2.4 The Reviewer will not consider any evidence that was not before the original decision maker except where evidence that was not before the original decision maker is submitted to demonstrate that a case working error as defined in paragraph AR2.11 (a), (b) or (c) has been made.”

Findings of Deception are included in the circumstances in which additional evidence may be submitted as Paragraph AR2.11 (a) states:

“(a) Where the original decision maker’s decision to:
(i) refuse an application on the basis of paragraph 320(7A), 320(7B) or 322(1A) of these Rules; or”

Applicants should therefore be able to provide additional evidence or explanation in applications for administrative review in order to show that they did not use Deception.

Where an applicant has neither a right of appeal nor administrative review, the only challenge will be judicial review. It may be difficult to show that a finding of Deception was irrational where a strong inference can be drawn from the circumstances in which the false document or representation was submitted. In such circumstances a new application, containing an explanation may be a better approach.

Immigration & Visa Application Barristers London

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