Home Office publishes new guidance on false representations further to Balajigari case
The Home Office has issued new policy guidance on 09th October 2019 on false representation refusals; the full document can be accessed here.
The Home Office have always taken a very strict course of action when it came to applications made under false representations. However following a landmark case it has now resulted in the new guidance on how false representation refusals will be decided on. In the case of Balajigari v Secretary of State for the Home Department  EWCA Civ 673 it was held by the Court of Appeal, that the Home Office had in fact unlawfully refused many applications; on the basis that the applicants were not given the opportunity to defend the claim of deception and dishonestly put forward by the Home Office.
The key details are outlined below.
Applicants will normally have the burden of proof to show that they meet all requirements of the rules, but in the event of a false representation being suspected, the burden of proof is then on the Home Office to show not only that the applicant’s representations was false but will also need to show that the applicant was dishonest.
Therefore refusals cannot be made where there are only doubts, concerns or where there is not sufficient information. It must be confirmed that there was either dishonesty or deception involved. If an application is likely to be refused, then a ‘Minded to Refuse notification’ letter will need to be sent to the applicant. This is where the applicant will be given the opportunity to explain and clear up the inconsistencies found in the application. Usually 14 calendar days is given to allow for the applicant to gather the necessary documents needed as evidence.Two conditions which must be fulfilled before issuing a Minded to Refuse notification:
- 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 dishonesty are significant.
According to the current Immigration rules, if in a previous application it was found that a false representation was made, then the Home Office can refuse new entry clearance, leave to remain, visitors, family members (Appendix FM) and armed forces applications. However it is to note that applications made under Appendix V and FM, do have separate provisions that apply.
When false representations are made because of benefit fraud or tax evasion, then a refusal will be made under public policy grounds, as these representations would not be sufficiently serious to meet the threshold to refuse. In Balajigari, the Court of Appeal ruled that this practice is lawful, or at least it can be if done the right way. Please read the full document on the link outlined in the beginning of this article to understand the new guidance in full.