It is not surprising that the Home Office approach to false representations made in the context of an immigration application has always been strict. The discovery of a serious and dishonest false representation made when submitting an application almost always results in a refusal. This general rule applies regardless of whether the false representation was made in relation to the application currently under consideration or to any previous application – no matter how long ago that previous application may have been made. If any past false representations are discovered, the current application will almost inevitably be refused.
Similarly, false representations not directly related to any immigration application (such as discrepancies in tax returns, fraudulently claiming benefits or providing false details to obtain a driving licence) give the Home Office the right to refuse an application “on public policy grounds”.
In recent years, the media have highlighted numerous cases where the Home Office refused applications for Indefinite Leave to Remain in the UK (“ILR”) due to discrepancies in the applicants’ tax records, even though those discrepancies were found to have been genuine mistakes and corrected as soon as they were discovered. As expected, such refusals were challenged in court. Last year, the Court of Appeal quashed a Home Office refusal, stating that a careless mistake does not amount to a discrepancy and the mere fact that a tax return was amended should not automatically lead to an ILR refusal on the basis of a dishonest false representation.
More recently, the Court of Appeal ruled earlier this year that to refuse migrants with tax discrepancies can be lawful – but that the Home Office had been wrong to refuse the application on false representation grounds without giving the applicant an opportunity to respond to an allegation of deception or dishonesty.
Last month, the Home Office reacted to this court decision by issuing new policy guidance. The new guidance indicates that the Home Office will now notify the applicant when it is considering refusing an application on the basis of dishonest false representation – whether in the present application or in a previous one. The Home Office will also set out what the allegation is and provide the applicant with an opportunity to respond to that allegation. The policy states that the applicant may not necessarily know about the information or evidence that the Home Office has considered (for example, information obtained directly from another Government department), but that they should in any event be given a chance to provide an explanation.
The new policy has already been heavily criticised as prejudicing applicants lodging their applications from outside the UK. The guidance states that the Home Office will provide such a notification only if a refusal may change the applicant’s circumstances, although this effectively means that applicants from outside the UK will never be entitled to receive such notifications because a refusal would not affect their current status – they would simply remain where they are.
Even though the new guidance represents a step forward in terms of protecting applicant’s rights, we are yet to see how effective it will be in practice. It is clear that the wording of the Home Office policy is far from perfect and there is every expectation that it will be challenged.
Gherson has extensive experience in handling complex immigration applications, including cases of alleged false representations. If you are concerned that your application may be at risk from this, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2019
Paralegal in our Complex Case team