False representation – summary of Home Office guidance - Arona St James Solicitors
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False representation – summary of Home Office guidance

The Home Office recently released guidance on 20 September 2019, this guidance looks at refusals on the grounds of false representation.

What is false representation?

Information or documents submitted in an application with the intention to deceive.

  • The Home Office can only refuse an application on the basis of false representation if they are satisfied that dishonesty or deception has been used. Any allegations of dishonesty or deception must be supported with evidence from the Home Office. False information on an application can however result in refusal without supporting evidence.
  • If incorrect information has been provided and no sufficient evidence provided to meet a refusal on the grounds of false representation, the application can be refused on eligibility grounds. Where a finding of false representation has been made and a refusal made, it should also be considered for refusal on eligibility grounds.

Please see table below from Home Office guidance for relevant immigration rules for false representation refusals:

Type of application False representation by applicant or third party in the current application False representation by applicant in a previous application
Entry clearance and leave to enter 320 (7A) 320 (7B)
Visitors V3.6 V3.7 read with V3.9(d)
Leave to remain 322 (1A) 322(2) or (2A)
Armed forces AF 9 (a)
Family members

(Appendix FM)

S-EC.2.2

S-LTR.2.2

S-LTR.4.2 or 4.3

 

If the above does not apply and eligibility grounds are not sufficient, then the application could be refused on the basis of eligibility and public policy grounds. The relevant rules from the guidance are below:

Type of application Public policy rule
Entry clearance and leave to enter 320 (19)
Visitors V3.3
Leave to remain 322(5)
Armed forces AF 8(g)
Family members (Appendix FM) S-EC.1.5

S-LTR.1.6

S-ILR.1.8

 

One specific case that deals with false representation is Balajigari v SSHD [2019] EWCA Civ 673

In this case the Court determined that dishonest conduct can come under the scope of the public policy provision however the conduct must be serious. Namely for example dishonest conduct that is deemed criminal (i.e. submitting false earnings for HMRC tax purposes to satisfy immigration rules, defrauding benefit system, providing false information for an official document and facilitating/participating in a sham marriage – would be deemed serious conduct).

  • When determining if an application should be refused on the grounds of public policy the Home Office will need to determine what the intended or gained result was of the false representation.
  • Deliberately withholding relevant information on an application and submitting false documents can be a basis for refusal under eligibility and if there is evidence of dishonesty or deception a refusal can be made under false representation.
  • It is for the Home Office to provide evidence of an allegation of false representation, they must show that the representations are not true and there is dishonesty involved. They will need to show that it is more likely than not that the Applicant or third party has been deliberately dishonest in making false representations, submitting false documents/information or failing to disclose material facts.
  • In some cases, the Applicant must be informed of the allegation of false representation and be given the opportunity to respond to the allegation before a decision is made. In most cases you will have 14 calendar days to respond. You will normally be given the opportunity to respond if both the Applicant does not know about the information (and cannot be reasonably expected to have known) that the Home Office has considered or its significance (i.e. if the Home Office have obtained records from another Government Department) and the implications on the Applicant of a finding of dishonesty are significant. Where mitigating factors including human rights are raised the Home Office must consider and decided if the factors outweigh the dishonesty. If human rights issues are raised then this will be treated as a human rights claim. There is separate guidance to address human rights claims. If the Home Office still come to the conclusion of false representation taking into account the mitigating factors then there is a right of administrative review against the refusal. The Home Office must be clear in the refusal if it is on the basis of false representation and must set out clearly the reasons of dishonesty or deception.
  • If false representations made by the Applicant have been found also in a previous application a current application for entry clearance or leave to remain must be refused. Separate provisions apply to applications under Appendix V and Appendix FM.
  • An application should not be refused under false representation if an innocent or minor mistake has been made (i.e. incorrect spelling or postcode given on application).
  • The Home Office will look at the following factors to determine if a minor mistake/error has been made:
    • How easy it is to make the mistake
    • How likely it is that the Applicant was unaware of the issue
    • Does the mistake benefit the Applicant
    • Is the error contradicted by any other information in the application form or by the documents provided?
    • Does endorsement/stamp in passport contradict answer?
    • Has a new passport been submitted and reason given for why
    • Has mistake been made on previous application?

The Home Office guidance can be accessed on the following link:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/837104/false-representation-v1.0ext.pdf