False Representations in UK Visa Applications
Making a UK visa or immigration application can be quite a lengthy, and at times stressful, endeavour, made even more so by the possibility of making mistakes. Whilst it is important to be thorough when making your visa or immigration application, there may be times where you misremember certain details, misunderstand certain questions or provide inaccurate information.
It should firstly be pointed out that there is a difference between mistakes and false representations. As will be explained, false representations represent a general ground of refusal in immigration decisions and as such, there can be serious consequences for an applicant if they are found to have made such representations.
Therefore, understanding what false representations are is vitally important whenever someone is considering making an immigration application. This post will set out the key details surrounding the rules on false representations in immigration applications to help clarify the issue.
False representations – the legal framework
False representations are governed by Part 9 of the Immigration Rules (The Rules) in particular Paragraph 9.7.1 and 9.7.2.
Before turning to consider these specific sections it should be noted that the provisions of Part 9 do not apply to every circumstance. Paragraph 9.1.1 of the Immigration rules provides a list of instances where the Part 9 rules, including the false representation provisions, are not applicable. Therefore, there might be some circumstances where a refusal on suitability grounds is covered by provisions outside of Part 9. For example, Paragraphs 9.7.1 and 9.7.2 do not apply in Appendix FM applications, however Appendix FM has its own false representation provisions at S-EC.2.2 and S-LTR.2.2, which mirror the wording of 9.7.1.
Turning to Paragraphs 9.7.1 and 9.7.2, there exists a crucial distinction between these two provisions based on whether the Home Office has a discretionary power of refusal or a mandatory one.
The wording of Paragraph 9.7.1 provides that an application “may be refused” where false representations are made and therefore, gives decision-makers discretion as to whether they exercise their powers of refusal. In contrast, Paragraph 9.7.2 establishes that an application “must be refused where the decision-maker can prove that it is more likely than not the applicant used deception in their application”. This distinction should be borne in mind, and will be referred to, when we turn to consider the different sections set out below.
What is a ‘representation’?
This element is fairly straightforward. In essence, making a representation involves making statements or claims, either in written or spoken form, to the Home Office.
The Home Office’s Suitability: false representations, deception, false documents, non-disclosure of relevant facts Guidance (The Guidance) provides some examples of what the Home Office considers to be a ‘representation’, including;
- Oral answers in an interview
- Answers in an application form
- Further submissions or representations
What is a ‘false’ representation?
There’s a certain ambiguity around the word ‘false’. In the ordinary sense of the word, it can refer to situations where an applicant provides information that is simply incorrect. However, in an immigration application, the picture becomes more complex and it’s here that the distinction between discretionary and mandatory grounds for refusal assumes importance.
The Guidance makes clear that the mandatory grounds for refusal under Paragraph 9.7.2 are triggered by deliberate dishonesty and that where a decision-maker can prove that deception has been used, refusal of an application is mandatory. AA (Nigeria) v SSHD (2010) gives us further insight into the definitions applied in the context of false representations. In that case, the court stated that “it is impossible to conclude that “false” in the expression “false representations” has the morally neutral meaning of “incorrect”. Crucially, the court said that “dishonesty or deception is needed to render a “false representation” a ground for mandatory refusal.”
In contrast the discretionary grounds for refusal under Paragraph 9.7.1 do not require dishonesty or deception. The guidance confirms that where an applicant has made an innocent mistake or has included minor inaccuracies which are immaterial to an application, this will not be sufficient grounds for the Home Office to refuse an application on the basis of false representations. A good example of this would be providing incorrect spellings of names, addresses or mistakes of a similar nature (Referred to in the Guidance as ‘typographical errors’). Therefore, the point being made here appears to be that where an applicant has made a mistake which falls into the middle ground between an innocent mistake and deliberate dishonestly, this gives rise to a discretionary power to refuse on the basis of a false representation.
The guidance provides a list of considerations which should guide a decision-makers determination of whether an applicants false representation was made on the basis of an innocent mistake including;
- How easy would it be to make an innocent mistake?
- How likely is it that the applicant was unaware the information has been provided?
- How likely is it the applicant, or the person providing the information, etc, is aware that the information is incorrect)?
- Does the false information benefit the applicant?
- Is it contradicted by other answers on the application form, or by any information in any documents provided with the current or a previous application?
- Does any endorsement or stamp in the passport or ID document contradict any answer given?
AA (Nigeria) v SSHD (2010) appears to confirm this position as it was stated that “a false representation stated in all innocence may be simply a matter of mistake, or an error short of dishonesty” and therefore “there is little reason for a requirement of mandatory refusal, although a power, even a presumption, of discretionary refusal would be understandable.” As such, a false representation falling into this category would give rise to a discretionary power of refusal but whether or not this power would actually be utilised is dependent on whether the Home Office determines that the mistake is an innocent one which has only an immaterial effect on an application. This is further elaborated on in the section immediately below.
Did the false representation give an applicant a material advantage?
As established above, in false representation cases falling under paragraph 9.7.1, and therefore giving rise to a discretionary power of refusal, an important consideration which the Home Office takes into account in determining whether to exercise their discretion is whether the false information which an applicant has provided gives them any sort of benefit.
The Guidance provides that in the context of discretionary refusals, decision-makers must consider whether the false information benefits the applicant. An example scenario provided in the guidance involves a situation where an applicant provides bank statements in support of their application but in reality what they have submitted are forgeries, in order to meet a financial requirement in an application. In this example, the immigration advantage obtained through this false representation is the satisfaction of financial requirements.
What are the consequences of making a false representation?
Overall, a false representation which falls within the middle ground between an innocent mistake and deliberate dishonesty can still give rise to a discretionary power of refusal under paragraph 9.7.1. As indicated in the guidance, where the false representation in question was an innocent mistake or contained minor but immaterial inaccuracies, the Home Office should exercise their discretion not to refuse on the basis of false representations.
In contrast, where it is more likely than not that the applicant’s false representation was made on the basis of deliberate deception, the guidance indicates that this will give rise to a mandatory ground for refusal under paragraph 9.7.2.
When making an application, it will fall to the applicant to prove that they satisfy all the necessary immigration requirements. However, where the Home Office alleges that an applicant has made false representations, this burden of proof is reversed. For example, in the context of false representations involving deception, the Home Office will be responsible for showing that any representations that have been made are both untrue and were made dishonestly. When coming to this conclusion, the Home Office works according to the standard of the balance of probabilities, meaning that they will need to prove that it’s more likely than not that the applicant had intentionally made a false representation.
What options does an applicant have if accused of making a false representation?
Where the Home Office wants to refuse an application on the grounds that false representations have been made, an applicant will still have some options open to them to challenge this. The court in Balajigari v Home Secretary (2019) confirmed that under the principle of procedural fairness the Home Office should;
- “Indicate clearly to the applicant that [they have] that suspicion”
- “Give the applicant an opportunity to respond”
- “Take that response into account before drawing the conclusion that there has been such conduct”
Therefore, if the Home Office alleges that a false representation has been made, there should be an opportunity for the applicant to explain any misrepresentations prior to a refusal.
Rights of appeal
Depending on which type of application has been made (as not all applications have a right of appeal) there are several options available when seeking to challenge a refusal decision; Administrative review, Judicial review or an appeal on Human Rights grounds.
The guidance highlights two ways where a Human Rights claim can arise. Firstly, as stated in the guidance, where an application that engages human rights has been refused there will be a right of appeal. Secondly, where a decision-maker issues a minded to refuse notification on the basis of false representations, applicants will be invited to respond prior to a decision being made. Here, if an applicant raises a human rights claim in their response this could give rise to a right of appeal on the basis of Human Rights.
Administrative review, when it is available, is an internal process where an applicant asks the Home Office to reconsider an application where it is believed that the decision-maker has made a case work error when refusing the application.
Judicial review does not involve challenging the merits of a decision and instead focuses on challenging the process by which a decision-maker reached their conclusions. Challenging a refusal on the basis of false representations through Judicial review must be done under a specific head of review (Illegality, Irrationality & Procedural Unfairness). A challenge on this basis can only be made where all other legal remedies have been exhausted.
Whilst making mistakes in an immigration application can be a source of great stress and frustration, doing so does not necessarily mean that either your application or your status within the UK has been fatally undermined. Remember that the key distinction here is whether any mistaken representations were made honestly & innocently or dishonestly & deceptively.
It is therefore important to ensure that all applications are completed as honestly and accurately as possible.