Deception, False Representations and Material facts not disclosed
As for all applications for leave, applications for leave to remain can be refused on general grounds which may be mandatory (rules 322(1) –322(1C)) or discretionary (rules 322(2) – 322(12)) but in respect of each wrongdoing or failure by the applicant alleged by the decision-maker, the burden of proof rests upon the decision maker to establish any precedent fact.
Each ground identifies an additional stand-alone legal basis for refusal and must be addressed on the path to an application succeeding under the Immigration Rules. Their common thread is that they depend for their validity on the decision-maker being able to establish a precedent fact, which unless it is not contested, needs to be established for the duty or power to be exercised by the decision-maker. Once the decision-maker establishes the underlying facts, the burden shifts to the applicant – even when the general ground concerned is discretionary – to prove that the decision was not in accordance with the law (including the immigration rules) or that a discretion exercised in making a decision should have been exercised differently.
Where there is no right of appeal to the Tribunal, the Administrative review procedure in Appendix AR may provide a remedy to be exhausted and allows for new evidence to be adduced in circumstances in relation to refusal decisions with reference to rules 320(7A), (7B) or 322(1A) or to cancel leave in force under r. 321A(2); but no post-application evidence is admissible where the claimed case working error lay in applying the rules incorrectly or failing to apply relevant published policy and guidance.
A precedent fact decision may be challenged by judicial review, but where a right of appeal exists, even if out-of-country, the Upper Tribunal (IAC) is unlikely to exercise its supervisory jurisdiction in all but ‘special or exceptional circumstances’where there is generally reprehensible or abusive conduct on the part of the decision-maker: per Green J. in R (Amzat Rauf Khan) v SSHD [2014] EWHC 2494 (Admin).
The standard of proof to establish a precedent fact is not a variable one (Re: B (Children) [2008] UKHL 35) and the only way in which the greater seriousness of the allegation or of the consequences is of relevance is in relation to the necessary quality of the evidence where evidence of sufficient strength and quality would need to subject it to a “critical”, “anxious” and “heightened” scrutiny: (NA & Others (Pakistan v SSHD [2009] UKAIT 00031). The Tribunal is not bound by strict rules of evidence and is entitled to have regard not only to direct witness evidence but an array of other statements and documents and does not confine itself to evidence tested by cross-examination (Khawaja [1983] UKHL 8, para 111), or disregard written statements by witnesses not available for cross-examination and documents not supplied by direct written or oral evidence as to the circumstances in which they came into existence (Khawaja, para 125). This, of course, did not assist the appellants in the Cambridge College cases.
The grounds on which leave to remain and variation of leave to enter or remain and curtailment of leave in the United Kingdom are to be refused under paragraph 322(1A), 322(2) or 322(2A) broadly fall into four case types: (1) deception; (2) false representations; (3) false documents; and (4) material facts not disclosed; as identified in the Home Office modernised guidance entitled ‘General grounds for refusal’(version 20.0; valid from 06 January 2015)) which directs entry clearance officers and Home Office caseworkers in relation to the general grounds in Part 9 to the Rules. A closer consideration of that guidance, in relation to both mandatory and discretionary refusals under paragraph 322(1A), 322(2) or 322(2A) in these four case-types, is warranted given that such refusals may attract a ban for future applications under paragraph 320(7B) – unless re-entry is applied for in an exempt category in light of exceptions in r. 320(7B)(d)(i)- (vii) or falls in a more general exemption from Part 9 (save for r. 322(1)- not for a purpose covered) for private life cases (r. 276ADE- 276DH) or Family Members under Appendix FM.
Caseworkers must have positive evidence to prove that the applicant has lied or submitted a false document to prove it is more likely than not that the applicant has made false representations or given forged documents to get leave. It is not appropriate to refuse a current application (r. 322(1A)) simply because the caseworker is not satisfied that the applicant is telling the truth; and to refuse in relation to a previous application (r. 322(2)), it must be shown both that the applicant deceived the ECO/HO caseworker when they made a previous application and that the deception was used to get, or attempt to get, leave to enter or remain. When deception has been used in a current or previous application, to get a document from the Secretary of State that shows the applicant has a right to reside in the UK (r. 322(2A)), it must be shown both that the applicant deceived the ECO/HO caseworker when they made a previous application, and that deception was used to get, or an attempt to get, a document from the Secretary of State to show the applicant has a right to reside in the UK. Caseworkers will need to show that a person’s circumstances or intentions have always been as they are now and deception was used in order to hide those circumstances. These kinds of cases must be referred to a senior caseworker before a decision is made.
- False representations
A false representation which may lead to refusal under paragraphs 322(1A), 322(2) or 322(2A) will be considered to have been made when an applicant or third party deliberately and dishonestly makes a false statement in an application. This could be in writing, on the application form, supporting documents or claims made at interview. Falsity requires dishonesty or deception to be used in an application (although not necessarily by the applicant themselves), current (r. 322(1A)) or previous (r. 322(2)) application, even if the false representation is not relevant to the application or decision. When a representation is confirmed as false and was submitted in connection with a current or previous application to get a document from the Secretary of State to show the applicant has a right to reside in the UK (r. 322(2A)), the evidence must clearly show that the applicant’s representations conflict with other evidence such as representations made in previous applications. Caseworkers must not refuse an application simply because of a suspicion that false representations have been made or because of minor errors in the application (the example given is of an applicant who has given an incorrect postcode or misspelt a name on their application form). Where an applicant states on their application form that they do not have any criminal convictions but Home Office checks confirm they do, the application must be refused because they will be considered to have deliberately made false representations to obtain leave (the application form specifically asks applicant to confirm any criminal convictions and provides details of how to check this if unsure). To answer falsely will be seen as the result of a deliberate choice in light of the signed declaration on the application form.
To confirm that a document is false caseworkers must get independent evidence: ideally, by asking the authority which issued the document or information to confirm in writing that it is not genuine. When it has been independently confirmed that the document is false, and was submitted with a current (r. 322(1A)) or previous application (r. 322(2)) or on either to get a document from the Secretary of State to show the applicant has a right to reside in the UK (r. 322(2A)). When this is not possible, caseworkers are told to consider whether they can refuse the application for substantive reasons.
A material fact is one which is relevant to a decision to grant leave to remain. These arise when an applicant has not disclosed material facts which relate to a current (r. 322(1A)), or a previous application (r. 322(2)); or in either case to get a document from the Secretary of State to show the applicant has a right to reside in the UK (r. 322(2A)). Caseworkers are told not to refuse an application when failure to reveal information is an innocent mistake. The example provided here in the guidance is of an applicant who has applied for indefinite leave to remain as a spouse and a casework check shows that the applicant receives Child Benefit legally – under an exception to no recourse to public funds, which has not been declared on their application form on the one hand; as opposed to an applicant who had been claiming Child Benefit illegally and had failed to disclose it – when the undisclosed information would be relevant to the decision.
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For advice and assistance in relation to challenging a refusal of entry clearance or leave to remain on grounds of deception, false representations or a failure to disclose material facts, contact our immigration barristers and lawyers in London.
