Page 1 of 23 Published for Home Office staff on 22 December 2020
Suitability: false representations,
deception, false documents, non-
disclosure of relevant facts
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Guidance on False Representations & Deception in Immigration Applications, Study notes of Human Rights
Guidance for Home Office staff on handling applications with false representations, false documents, or failure to disclose relevant facts. It covers the definition of false documents, relevance and knowledge of false representations, and procedures for alleging deception. The document also outlines the Immigration Rules regarding false representations and the discretionary power to refuse or cancel applications.
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Suitability: false representations,
deception, false documents, non-
disclosure of relevant facts
Version 2.
Contents
About this guidance
This guidance is for decision makers (including entry clearance officers and Border Force) considering a refusal under paragraph 9.7.1. of Part 9 of the Immigration Rules on grounds of false representations, false documents, false information or failure to disclose a relevant fact where refusal is discretionary.
This guidance also covers where there is deception by the applicant and the mandatory ground of refusal in paragraph 9.7.2. applies. This requires you to be satisfied there has been a deliberate intention to deceive by the applicant.
If the applicant is found to have used deception in a previous application, this is a previous breach of immigration laws such that paragraphs 9.8.1 and 9.8.2. of Part 9 of the Immigration Rules apply.
This guidance is also for decision makers considering cancellation of entry clearance or permission to enter or permission to stay held by a person on grounds of false representations, false documents, false information or failure to disclose a relevant fact. Cancellation is under paragraph 9.7.3 of Part 9, or in the case of permission extended by section 3C of the Immigration Act 1971 and only where the applicant has used deception in the application for permission to stay under paragraph 9.7.4. of Part 9.
The guidance applies to applications made on or after 1 December 2020 and decisions to cancel made on or after 1 December 2020.
This guidance does not apply to applications made under:
- Appendix EU
- Appendix EU (Family Permit)
- Part 11 (Asylum), except paragraphs 352ZH to 352ZS, and 352I to 352X, and 352A to 352FJ;
- Appendix S2 Healthcare Visitor
- Appendix Service Providers from Switzerland
- applications on grounds of private life under paragraphs 276ADE to 276DH
Family Cases (Appendix FM) and Armed Forces cases
(Appendix AF)
- Appendix FM except that paragraph 9.7.3. applies to Appendix FM applications for permission to stay
- Appendix AF except that paragraph 9.7.3. applies to Appendix AF cases
ECAA Cases
- Paragraph 9.7.3. applies to applications for entry clearance or permission to stay granted by virtue of the ECAA Association Agreement where the adverse conduct occurred after 11pm on 31 December 2020
- Paragraphs 9.7.1., 9.7.2. and 9.7.3. only apply to applications for permission to stay under Appendix ECAA Extension of Stay where the adverse conduct occurred after 11pm on 31 December 2020.
Domestic workers who are the victim of slavery or human
trafficking Cases (Paragraph 159I)
- Paragraph 9.7.1, 9.7.2 and 9.7.3 apply to applications for permission to stay as
(Paragraph 159I)..................................................................................................... Domestic workers who are the victim of slavery or human trafficking Cases
Contacts
If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors then email the Administrative Policy team.
If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance then you can email the Guidance Rules and Forms team.
Publication
Below is information on when this version of the guidance was published:
- version 1.
- published for Home Office staff on 22 December 2020
Changes from last version of this guidance
This is new guidance. It replaces previous guidance on Part 9: grounds for refusal of the Immigration Rules and previous guidance on false representations
Related content Contents Grounds for refusal
Representations
“Representations” means statements or assertions which can be made orally or in writing, by the applicant or a third party such as an immigration adviser, partner, parent or friend, and can include the following (this is not an exhaustive list):
- oral answers in an interview
- answers in an application form
- further submissions or representations
Information
“Information” can be provided orally or in writing, by the applicant or a third party such as an Immigration adviser, partner, parent or friend, and can for example include:
- information provided orally in an interview
- answers on an application form, for example an incorrect nationality or date of birth
- incorrect information about earning provided to HMRC in order to obtain an incorrect P60 to use in an immigration application
False documents
“False Document” is defined in paragraph 6 of the Immigration Rules as including
The meaning of “false”
- a document which has been altered or tampered with
- a counterfeit document
- a document which is being used by an imposter
- a document which has been fraudulently obtained or issued
- a document which contains a falsified or counterfeit entry clearance, visa or endorsement
If you suspect a false document has been submitted you should consider whether to take steps to verify it. For example, you may be able to check with the issuer of the document at source or the specialist teams within BICS to verify the document.
Official sensitive – start of section
The information on this page has been removed as it is restricted for internal Home Office use.
The information on this page has been removed as it is restricted for internal Home Office use.
Official sensitive – end of section
For further guidance on document verification see the document verification guidance.
Relevance and knowledge of false representations, false
information and false documents
Even if the applicant did not know that false representations were made, or false information or false documents were submitted, and whether or not they were relevant to the application, the application may still be refused on suitability grounds and entry clearance or permission may be cancelled: see guidance on considering the decision.
Non-disclosure of relevant facts
Whether there has been non-disclosure, and whether facts are relevant, will depend on the context, but silence or incomplete information can amount to non-disclosure.
A person is not required to volunteer information unless it is clear from the context that it is required.
Examples
- failure to disclose the existence of a family member
- failure to disclose a criminal conviction
- failure to disclose previous travel to the UK
- failure to disclose presence of family members in the UK
Cases not involving deception
There is a distinction between information that is false but where you are not satisfied there was an intention to deceive by the applicant and cases where you are satisfied there was deception by the applicant.
If you can prove that the applicant has used deception, refusal of the application is mandatory (subject to the exceptions below) under Mandatory Refusal- 9.7.2. of Part
Permission extended under paragraph 3C of the Immigration Act 1971 may be cancelled under paragraph 9.7.4. if you can prove the applicant has used deception, but cancellation is discretionary.
False representations, false information
False documents
representations etc. by applicant or third party in the current application
False representations etc. by applicant or third party in a previous application
Deception by applicant in the current application
Deception by applicant in a previous application
Refusal of entry clearance or permission to enter or stay
Paragraph 9.7.1. of Part 9
- Paragraph 9.7.2. of Part 9
Paragraph 9.8.1 and 9.8.2. of Part 9 (in relation to refusal of entry clearance or permission to enter only) Cancellation of entry clearance or permission to enter or stay
Paragraph 9.7.3. of Part 9.
Paragraph 9.7.3. of Part 9
Cancellation of 3C leave
- Paragraph 9.7.4. of Part 9
Cancellation of permission to stay under Appendix FM
Paragraph 9.7.3. of Part 9
Paragraph 9.7.3. of Part 9
- S-LTR.4.
or 4.
Refusal of entry clearance or permission to enter or stay under Appendix FM
S-EC.2.2 S-
LTR.2.
Refusal of entry clearance or permission to enter or stay under Appendix AF
AF 9(a) - - -
Decision False
Representations......................................................................................................
etc. by applicant or third party in the current application
False representations etc. by applicant or third party in a previous application
Deception by applicant in the current application
Deception by applicant in a previous application
Cancellation of entry clearance or permission to enter or stay under Appendix AF
Paragraph 9.7.3. of Part 9
Paragraph 9.7.3. of Part 9
Cancellation of entry clearance or permission to enter or stay under ECAA Agreement where the adverse conduct occurred after 11pm on 31 December 2020
Paragraph 9.7.3. of Part 9
Paragraph 9.7.3. of Part 9
Refusal of entry clearance and permission to enter or stay under Appendix ECAA Extension of Stay
Paragraph 9.7.1. of Part 9
- Paragraph 9.7.2. of Part 9
Paragraph 9.8.1 to 9.8.2. of Part 9
Cancellation of entry clearance or permission to enter or stay under ECAA Agreement where the
Paragraph 9.7.3. of Part 9
Paragraph 9.7.3. of Part 9
- applications on grounds of private life under paragraphs 276ADE to 276DH,.
For these applications you will need to consult their separate guidance:
- S2 Healthcare visitor
- EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members
- Asylum
- Family life (as a partner or parent), private life and exceptional circumstances
In cases where there is clear evidence of dishonesty or deception but none of the paragraphs in the table above applies (if, for example, the applicant sought to deceive a government department other than the Home Office) and a refusal on eligibility grounds alone is not adequate to reflect the seriousness of the behaviour, it may be appropriate to refuse the application, or cancel entry clearance or permission, on non-conducive grounds. The relevant rules are in the table below
Type of application Non-conducive grounds Entry clearance or permission to enter or permission to stay
Paragraph 9.3.1. and 9.3.2. of Part 9
Appendix Armed forces AF 8(g) and Paragraph 9.3.2. of Part 9 Appendix FM Family members S-EC.1. S-LTR.1. S-ILR.1. applications for entry clearance or permission to stay granted by virtue of the ECAA Association Agreement
Paragraph 9.3.2. of Part 9
applications for permission to stay under Appendix ECAA Extension of Stay,
Paragraph 9.3.1. of Part 9
Domestic workers who are the victim of slavery or human trafficking Cases (Paragraph 159I)
Paragraph 9.3.1. and 9.3.2. of Part 9
Appendix EU EU 16 (c) (ii)
In Balajigari v SSHD [2019] EWCA Civ 673, the Court of Appeal held that dishonest conduct was capable of coming within the terms of the non-conducive provision, subject to the guiding principle that the relevant conduct must be serious. The Court held that not all dishonesty is sufficiently serious to meet the threshold but did not accept that dishonest conduct would have to be criminal to meet the threshold. By way of example, the Court said it was very hard to see how deliberate and dishonest submission of false earnings figures to a government department would not be sufficiently serious to meet the non-conducive threshold.
In Balajigari the appellants had declared a different level of income to Her Majesty’s Revenue and Customs (HMRC) for tax purposes than they provided to the Home Office for the purposes of meeting the requirements of the immigration rules. As it was unclear whether the alleged false representations were to the Home Office or
HMRC the false representation rules did not apply. Subject to the requirement that the dishonest conduct must be serious to rely on non-conducive grounds, other examples include, but are not limited to:
- fraudulently claiming benefits or otherwise defrauding the benefits system
- providing false details to obtain an official document, such as a driving licence or passport
When considering using the non-conducive grounds you should therefore consider both whether there has been a false representation, etc (ie you are satisfied that dishonesty or deception is involved) and whether the conduct is sufficiently serious. You must assess whether there was incorrect information and whether it was a false representation and what, if anything, was intended or gained as a result. For example, you should not refuse on non-conducive grounds if a person was unaware that the false representation had been made (for example by a third party) or has merely claimed something to which they were not entitled without any dishonest intention.
Burden and standard of proof
The burden of proof is on the applicant to show that they meet the requirements of the Rules. However, if you allege false representations, etc the burden of proof is on the Home Office to show both:
- that the representations are not true
- there is dishonesty or deception
Relevant evidence may include, for example, discrepancies in the information provided by the applicant at various times, discrepancies between that information and information available from other sources, such as other government departments, and intelligence reports on the veracity of documents submitted.
Allegations of dishonesty or deception are serious, with significant consequences for applicants and their families. The legal standard of proof is ‘balance of probabilities’, which means it is more likely than not that the applicant or a third party has
documents Relevance and knowledge of false representations, false information and false
or information or failed to disclose material facts.
In Balajigari the Court of Appeal commented
“the Secretary of State must be satisfied that dishonesty has occurred, the standard of proof being the balance of probabilities but bearing in mind the serious nature of the allegation and the profound consequences which follow from such a finding of dishonesty.”
It is not appropriate to refuse based on false representations simply because you are not satisfied that the applicant has given correct information. Even if the omission or incorrect information is capable of leading a caseworker to make the wrong decision, if you allege false representations you must be able to show, on the balance of
Considering false representations
This section explains how to consider false representations, etc.
If false information is provided as part of an application, either orally or in writing, including deliberately withholding relevant information or submitting false documents, you must consider refusing entry clearance or permission to enter or permission to stay on suitability grounds on grounds of false representations, etc.
It is important to be clear in the decision whether the false representation was made in relation to the current or a previous application, by whom it was made, and whether there was deception, as that will determine what action should be taken
Mistakes
You must consider whether an innocent mistake has, or could have, been made. You must not refuse on grounds of false representations if there may have been an innocent mistake, or because there are minor but immaterial inaccuracies, such as typographical errors in the application: for example, if an applicant has given an incorrect postcode or misspelt a name on their application form. It may still be right to refuse the application if the mistake means you are not satisfied that the requirements of the rules are met. For example, if the applicant has said they have an income of £40,000, but has provided evidence only for £4,000, you may take the view that the higher figure was an innocent mistake but may still refuse the application on eligibility grounds if on the evidence provided the required income under the rules is not met.
In entry clearance cases, you should refer any inaccuracy to the entry clearance manager (ECM) if you intend to issue. You must update PROVISO to indicate why you considered it an innocent mistake rather than dishonesty or deception.
In considering whether an innocent mistake has been made, you should ask:
- 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?
- has a new passport been presented, and if so why?
- has this ‘innocent mistake’ also been made on a previous application?
Unless you are satisfied that the inaccuracy is the result of deception (by the applicant or a third party) you should not refuse the application on the grounds of
False representations, false information
Deception by a third party
For example, if an applicant was not aware that the information submitted was false, because there was deception by their partner or immigration adviser, and the false information was not relevant to the application, you may decide not to refuse on suitability grounds. Relevant factors to consider would include whether the applicant ought to have known the information was false, for example did they declare that the information was true to the best of their knowledge and belief? Was it reasonable of them to have done so without checking the accuracy of the information? What would be the effect of refusal on the applicant and would that be outcome be reasonable in all the circumstances of the case?
If necessary, you should consult a SCW for further advice before making a decision.
Mandatory refusal: 9.7.2.
Where paragraph 9.7.2. of Part 9 applies, you must refuse an application for entry clearance, permission to enter or permission to stay made on or after 1 December 2020 where you can prove that it is more likely than not the applicant used deception in the application.
Where you make a finding of deception you must make it clear that is your view. Stating that you have “doubts” or “concerns” is not sufficient. You must say that you believe there has been dishonesty or deception and explain why you have reached that view.
Where you have found that there has been deception you must refuse the application on suitability grounds unless an exception applies. It may be necessary to apply a minded to refuse process to gather the relevant information: see guidance on procedural fairness.
If it is claimed that refusal is not appropriate because it would be a breach of human rights and the claim is sufficiently particularised you should treat that as a human rights claim. Guidance on what amounts to a human rights claim is available in Rights of appeal. Guidance on how to consider a human rights claim and how to grant permission in the event that the claim succeeds is available for family and private life cases and for medical and other cases.
Discretionary refusal: 9.7.1.
Where paragraph 9.7.1. of Part 9 applies, you may refuse an application for entry clearance, permission to enter or permission to stay made on or after 1 December 2020 on the grounds that the applicant has made false representations, submitted
an application, or cancelling permission, on the basis of false representations, etc. the applicant must be given an opportunity to address that allegation of deception before a decision is made. A finding that the applicant has themselves used deception also means subsequent applications can be refused on the basis of the deception under paragraph 9.8.1 and 9.8.2. of Part 9.
If you are considering refusing or cancelling on the basis of false representations, etc or deception, you must provide a ‘Minded to Refuse/Cancel notification’, which means simply that you must tell the applicant you are thinking of refusing the application and/or cancelling entry clearance or permission, based on false representations, etc. You must set out exactly what the allegation is and make it clear you are alleging dishonesty/deception, including whether you allege the deception was that of the applicant or another. You must also give the applicant the chance to respond to the allegation before you make your decision.
You may give the Minded to Refuse/Cancel notification and ask for any response either in a person (usually an interview at the border or by appointment) or by written notification if the person is in the UK or Overseas. You must then consider, in the light of the response (if any is given), whether there is sufficient evidence that the applicant (or, if relevant, a third party) has been dishonest.
You must give the applicant a reasonable period in which to respond to the Minded to Refuse/Cancel notification or, if the applicant states they want to provide documentary evidence to support an explanation given in an interview. What is reasonable will depend on the circumstances, but at the border an explanation ought to be forthcoming, in other cases 10 working days will normally be sufficient. You must then consider, in the light of the response (if any is given), whether there is sufficient evidence that the applicant (or, if relevant, a third party) has been dishonest.
The notification template is here.
Minded to Refuse interviews
You can carry out a “Minded to Refuse/cancel” interview straight away if the operational circumstances allow. You must put your evidence to the applicant and give them an opportunity to respond.
Border Force guidance on interviews is at: immigration-interviews
When you must tell the applicant that you are alleging
deception and give them an opportunity to respond
You must do so where both of the following apply:
- the applicant may not necessarily know about the information you have considered, or its significance, for example information obtained directly from another government department
- the implications for an applicant of a finding of deception are significant
Examples
The applicant may not necessarily know about the information you have considered, or its significance, for example information obtained directly from another government department
Whether the applicant could reasonably be expected to have known about the issue in advance of your allegation will depend on the circumstances. For example, the applicant may have said they have never received public funds but DWP may provide information demonstrating receipt of public funds. Before you make a finding of deception you should give the applicant the chance to explain the discrepancy. Or, you may find that a passport has been damaged in a way that suggests deliberate tampering. The applicant may be aware of the damage and have an innocent explanation, but it may not occur to them that an explanation is required unless you explain your concerns.
The implications for an applicant of a finding of dishonesty are significant.
The seriousness of the consequences for the applicant is a fact-sensitive issue but, for example, if the applicant is lawfully in the UK and is seeking settlement or further leave to remain and will have to leave the UK if refused, that is a serious consequence.
If an applicant would qualify for settlement but for an allegation of deception, the fact that a decision to refuse or cancel will result in the applicant having no leave is a serious consequence.
A decision that exposes the applicant to the compliant environment will have serious implications, because it will mean that they can no longer open a bank account, rent accommodation and so on. The level of seriousness will depend on how deeply the applicant (and any family members) have established roots in the UK.
By contrast, it will rarely be the case that an application for entry clearance or permission to enter reaches the required level of seriousness, because in most such cases a refusal will not change the applicant’s circumstances.
How to consider the responses to the Minded to Refuse/Cancel
notification
You must
- consider any responses received to the allegation of deception, etc. and decide whether you are satisfied on the balance of probabilities that the allegation is sustainable
- even if the applicant fails to provide an explanation, you must still consider whether on the available evidence you are satisfied, on the balance of probabilities