Our Immigration Team were recently instructed to represent a client, who was appealing the Home Office’s decision, to refuse him an extension for leave to remain under the Tier 1 (General) Migrant visa route of the Points Based System (PBS). In their decision, the Home Office formed the view that the Appellant obtained all the necessary points to qualify for leave to remain but refused the application on the basis of using ‘deception’ when making the application as they believed false documents had been submitted by the Appellant.
The First Tier Tribunal (Immigration and Asylum Chamber) held that the Home Office did not have any evidence to indicate that our client had used deliberate deception when submitting his application. The Learned Judge stated that the Appellant was “not involved in a deliberate deception and had relied on his representatives” [in this case an OISC regulated organisation] to prepare and submit his visa application. Here, we will explore the court’s approach in cases where the Home Office alleges an applicant has used deception in their visa application.
Home Office’s Stance on Use of Deception in UK Visa Applications
Paragraph 320(7A) of the Immigration Rules allows the Home Office to refuse visa applications where an applicant has made false representations, submitted false documents and/or information. The fact whether the material submitted is relevant to the applicant’s case or whether the applicant had knowledge of the material is irrelevant.
The Home Office’s guidance for its case workers states that the legal standard of proof is the “balance of probabilities” so it must be more likely than not that the falsehood has been used. This subjective test seems to cause confusion with case workers and as a result there are instances where applicants have had to appeal their refusal before an immigration judge.
The Courts’ Approach to Cases of Deception
The Court takes the view that it is for the Home Office to prove to the necessary standard (i.e. balance of probabilities) that the appellant has used deception in his application.
In Adeyoyin v SSHD  EWCA Civ 773, the Court of Appeal held the word ‘false’ in ‘false representation’ and ‘false document’ in the Immigration Rules, meant ‘dishonest’ rather than ‘inaccurate’. It is therefore incumbent on the Home Office to prove the case to the requisite standard i.e. prove a representation, its falsity and the fact that it was made for the purpose of obtaining leave or an earlier variation. In cases where fraud is alleged, the standard of proof will have to be higher (Khawaja v SSHD  AC 74, Imm AR 139, HL).
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