If you have had your immigration application refused it can be a terrible blow for you and your family. If you have been waiting for a decision on your spouse visa or your settlement application for Indefinite Leave to Remain it can be that much harder to hear that your Spouse visa or ilr application was refused on the general ground that you made a ‘false representation’. Often applicants are at a complete loss to understand what the Home Office thinks amounted to a ‘false representation’ on their Spouse visa or other immigration application form. In this blog we look at the Home Office definition of ‘false representation’ and how to best challenge it.
immigration appeal solicitors
If you have had your immigration application refused on the grounds of false representation then our specialist immigration appeal solicitors can look at your best options, whether it is a Spouse visa refusal, Permanent Residence refusal or other type of immigration application. Call us on 0203 959 9123 or contact us using our online enquiry form.
Getting your immigration application right
We meet many immigration applicants who have tried to make their own application or who haven’t used a specialist immigration solicitor and had their application rejected. Sometimes the application is rejected for something relatively minor, such as not providing the right supporting documents for your British citizenship application and in other cases where the Home Office say false representations have been made on the visa or settlement application form.
Whatever the reason for the immigration refusal, a rejection of your application just adds to costs and delay so it pays to take the time to get the application right first time round by using a specialist immigration solicitor and listening to their advice on how best to secure your visa or settlement application.
What is a false representation in an immigration application?
The Home Office uses a precise definition of false representation developed from immigration appeals case law when deciding whether or not false representations have been made.
The immigration appeal courts have said that to refuse an immigration application on the grounds of false representations ‘Dishonesty or deception is needed, albeit not necessarily that of the applicant, to render a ‘false representation’ a mandatory ground for refusal.’
‘False representation’ is defined as ‘information provided, usually in support of an
application, with the intention to deceive’. However, Home Office guidance states that a Home Office official must not refuse an immigration application because false representations have been made, or material facts not disclosed, unless the Home Office official is satisfied that dishonesty or deception is involved.
Whilst an allegation of dishonesty or deception must not be made unless there is evidence to support the allegation, false information in an immigration application can still result in a refusal under the immigration Rules where there is no evidence of dishonesty or deception.
The Home Office guidance also states that if the information provided in the immigration application is incorrect but there is insufficient evidence of dishonesty
and deception then the immigration application must be considered for refusal on eligibility grounds.
immigration appeal solicitors
If you have had your immigration application refused on the grounds of false representation then our specialist immigration appeal solicitors can look at your best options, whether it is a Spouse visa refusal, permanent residence refusal or other type of immigration application. Call us on 0203 959 9123 or contact us using our online enquiry form.
False representation by third party
For an immigration application to be refused on the grounds of false representation the representation doesn’t need to have been made by the visa or settlement applicant. It can be made by a third party.
Case study one of false representation
Take the case of an applicant for a fiancé visa who is excited to be coming over from the Philippines to get married. She has filled in her fiancé visa application form on the basis that she is in a genuine relationship with her partner and they intend to marry and permanently live together in the UK. When completing the fiancé visa application she will have stated that both she and her fiancé are not in relationships but imagine if her fiancé is still married to his first wife.
The Home Office may immediately think that the couple are planning to enter a sham marriage whereas nothing could be further from the truth from the point of view of the fiancé visa applicant who is devastated to learn that her proposed husband is already married. Whilst there was no dishonesty on the part of the fiancé visa applicant it is clear that her fiancé visa application has to be refused on eligibility criteria as her proposed husband is still married.
In this scenario we have painted the future husband as the villain of the piece but in real life the story is often far more complicated than that. We have come across scenarios where a future spouse thought they were divorced because they had a decree nisi of divorce (you are not divorced until you get your decree absolute) or thought they would be divorced by the time that the fiancé visa application was processed by the Home Office and so they were merely being economical with the truth with both their fiancé and the Home Office.
If you find yourself in that scenario, then it is important that whilst your fiancé visa is understandably refused on the grounds of eligibility (as you can't get married to someone who isn’t divorced yet and you don’t meet the eligibility criteria) your immigration record isn’t blighted by a refusal because of false representations on the part of your partner.
Case study two of false representation
No case of false representation is ever exactly the same as the next. When it comes to Spouse visa applicants, particular care must be taken to ensure that the Spouse visa financial requirement is not only clearly met but that there can be no concern on the part of Home Office officials that false representations have been made.
Take the case of a Spouse visa applicant coming from Pakistan to the UK and whose spouse is self-employed. The Spouse visa applicant submits her husband's business accounts as evidence that she meets the Spouse visa financial requirement as her husband earns over £18,600 per year. However, the Home Office check the information with HMRC tax office and discover that on the tax return an income of only £16,000 was declared. On the face of it, there is a clear case of third party false representation to the Home Office and the Spouse visa application should fail not only potentially on the grounds of failure to meet the financial requirement but because of the dishonesty.
When the husband is questioned he says that the HMRC tax return relates to an earlier accounting year and that his self-employed business turnover and profit has increased since he submitted his last HMRC return. He is therefore adamant that he isn’t dishonest and he and his spouse haven’t made any false representations in the Spouse visa application.
Using a specialist Spouse visa solicitor to submit the original Spouse visa application might have avoided the difficulty the couple face as Spouse visa solicitors are knowledgeable about the particular difficulties in presenting self-employed income in the Spouse visa financial requirement application process and the need to provide information about any potential discrepancies and full supporting documents.
Refusal of immigration application on grounds of false representation
Home Office guidance says that if false information (verbally or in writing) or in documents are submitted as part of your immigration application (including deliberately withholding relevant information or submitting false documents)
then the Home Office official must consider refusing entry or leave to remain on eligibility grounds and, if there is evidence of dishonesty or deception, on grounds of false representation.
The Home Office official will need to assess whether an honest mistake was made, carelessness or there was an intention to make false representations. Although when you make an immigration application the burden of proof is on you to demonstrate that you meet the eligibility criteria for the visa or settlement application, if the Home Office alleges false representation the burden of proof is on the Home Office to show that:
- The representations are not true; and
- There was dishonesty.
As it is a very serious matter to allege dishonesty on the part of a visa applicant or UK settlement applicant the Home Office has to be able to show that on the ‘balance of probabilities’ false representation and dishonesty occurred.
The balance of probabilities means it is more likely than not that the applicant or a third party deliberately and dishonestly made a dishonest false representation. A Home Office official therefore can't say that there was ‘false representation’ based on their gut view about the applicant and their application unless they can show there was a deliberate intention to deceive.
Although the Home Office burden of proof is high it is possible to establish false representation in cases where it is clear that an applicant or third party has put conflicting information on Home Office and government forms, for example a UK based spouse claiming benefits as a single person whilst supporting the applicant’s application for a Spouse visa extension on the basis that they are living together in a genuine and subsisting relationship as a couple.
The Home Office can take into account information available from other sources, such as other government agencies and intelligence reports on the documents submitted in support of the immigration application.
If you receive a ‘minded to refuse letter’ from the Home Office or a refusal of your application based on eligibility criteria and false representations then it is vital that you take urgent legal advice to see if through representations , or in the case of a refusal, an administrative review or judicial review, you can challenge the basis of the Home Office decision as you don’t want the stain of a refusal on false representation or public policy grounds to remain on your immigration record.
What is a Home Office minded to refuse letter?
In some situations the Home Office accept, in light of recent case law, that the visa or settlement applicant must be informed of the allegation of false representation and given the chance to respond before a decision is made on the merits of their immigration application.
The ‘minded to refuse notification’ must tell you that the Home Office are thinking of refusing the application based on false representation and the letter should set out exactly what the allegation is and make it clear that there is an allegation of dishonesty being made against you.
Your response to a Home Office minded to refuse letter can either be in an interview with the Home Office official or by letter setting out your position and, for example acknowledging the problem with the immigration application but saying that it was an innocent mistake and providing extra paperwork.
If you get a minded to refuse letter it is best to act quickly and take expert legal advice as normally the Home Office only gives fourteen days to respond, though they will allow longer if they think a longer timeframe is justified.
The Home Office official should send a minded to refuse letter if:
- The Home Office thinks you may not necessarily know about the information the Home Office official has considered or its significance (for example information obtained directly from HMRC) ; and
- The implications for you of a finding of dishonesty are significant.
Every case is different and rests on its facts as to whether a minded to refuse letter is required. For example if a passport looks doctored there could be an innocent explanation but there probably isn’t any need to send a minded to refuse letter if the country that supposedly issued the passport tell the Home Office that they have no record of having ever issued a passport in that name.
False representations and Home Office use of discretion
If a Home Office official concludes there was false representation and dishonesty the Home Office official should then go onto consider if, in the particular circumstances of the case, the presumption of refusal of the visa or settlement application is outweighed by factors in the your favour such as human rights or positive factors to your application that outweigh the conclusion of false representation.
Refusal on public policy grounds
The Home Office guidance sets out the test to be applied before refusing an immigration application on public policy grounds (rather than false representation), namely:
- There is clear evidence of dishonesty or deception;
- The conduct must be serious but the conduct can fall short of being criminal in nature;
- What was gained by the dishonesty or false representation.
A refusal on public policy grounds may be more appropriate if there is, for example, evidence of a false claim for benefits as opposed to a false claim in the immigration application form.
Whether your application is refused on public policy or false representation grounds it is best to take legal advice on your options. Whilst you may not think that a refusal of a visit visa or a family visa is of long term significance the finding of false representations on your immigration record may severely limit or even stop your future settlement plans.
immigration appeal solicitors
If you have received a minded to refuse letter or had your immigration application refused on the grounds of false representation then our specialist immigration appeal solicitors can look at your best options, whether it is a Spouse visa refusal, permanent residence refusal or other type of immigration application. Call us on 0203 959 9123 or contact us online.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 0203 959 9123 or contact us online.
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Posted on: Monday, 02 March, 2020