Fraud claimed by Home Office on Visa applications.

The Home Office may refuse Visa applications where they consider that deception has been used in a visa application. Whilst derogations apply, and different visa applications attract distinct remedies, the purpose of this article is to outline the principles that apply to the Home Office consideration. The Immigration Rules read: -

Paragraph 7.1 and 7.2 of the General Grounds of Refusal

“ False representations, etc. grounds

9.7.1. An application for entry clearance, permission to enter or permission to stay 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:

or

(b) relevant facts are not disclosed.

9.7.2. An application for entry clearance, permission to enter or permission to stay must be refused where the decision maker can prove that it is more likely than not the applicant used deception in the application”

If faced with such a refusal , legal advice should be sought.

Under 9.8.1 of the Immigration Rule: -

“ Previous breach of immigration laws grounds

9.8.1. An application for entry clearance or permission to enter must be refused if:

(a) the applicant has previously breached immigration laws;

and

(b) the application is for entry clearance or permission to enter and it was made within the relevant time period in paragraph 9.8.7………. (f) 10 years”

The consequence of a refusal asserting dishonesty by or on behalf of the applicant in a visa application is a ten year exclusion ban from the United Kingdom.

The Home Office Assessment.

How the Home Office interprets these rules is the subject of internal case worker guidance.

Where the Visa Officer considers that a particular document is fraudulent or claimed fact, just a lie , then it is identifying whether this assertion of dishonesty is in fact true, that determines whether the refusal is correct. The dishonesty is the precedent fact to the application.

The Visa Officer has three separate avenues of corroboration : -

Under current Home Office procedure , where a false document has been submitted, the instructions to staff are that they should take steps to verify whether it is genuine. This involves approaching the institution upon whose behalf the document is purported to be issued. The official who undertakes the assessment must then produce a “ Document Verification Report” which remains on file.

There exists a separate internal distribution of general reports where a pattern of a specific type of fraud has been identified. ( RALON )

Where the applicant is sponsored, the document submitted will be cross referred to the information held in relation to the Certificate of Sponsorship.

Having identified a particular document as false, the Visa Officer is t required to assess whether the applicant used deception, i.e. that they knowingly submitted a document that was false. In the instructions to staff, the Visa Officer is given the following examples of the type of evaluation that he is expected to make.

• 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 Legal Principles that apply.

The burden of proof of proving the dishonesty lies on the Visa Officer. - JC (Part 9 HC395- burden of proof) China [2007] UKAIT 00027

The Visa Officer must show to the higher standard of likelihood that he has proved dishonesty. A simple assertion is not enough. He must provide the evidence behind the claim.

Whether the challenge to a visa refusal is by a straight forward appeal against the decision, ( where the applicant must show that the decision maker was wrong ) , or if a review of the decision, ( where the applicant must show that the decision was unfair, ) the same principle applies that the Visa Officer who asserts dishonesty must prove it.

Further if the Visa Officer has received information that documents submitted for a visa application are fraudulent, they should as a matter of fairness invite the applicant to comment on the alleged dishonesty before making a decision. This has been affirmed by the Court of Appeal in Caligari v The Secretary of State for the Home Department [2019] EWCA Civ 673 and forms part of the Home Office policy in their instructions to staff on how to apply the General Grounds for Refusal ( Version 4.0 – 14th November 2023.)

About

Dominic Magne has worked in the field of Immigration Asylum and Nationality Law since 1992. He qualified as a barrister in 1997 and as a solicitor in 2001.

We believe that good, and thorough advice on your Immigration matters is the key to an appropriate and ultimately successful application to the UKVI. There is a flat rate charge of £180 for a consultation. Following the consultation a detailed advice letter is given, setting out the next steps.

To arrange a consultation, call +44(0)20 8399 3939 or email post@magne.co.uk

Law is as stated on :- 24th April 2024