Chapter 26 - Refusals

26.1	When to refuse locally
26.2	Types of refusal form
26.3	Writing Notices of Refusal
26.3.1	Do's and don'ts of writing refusal notices
26.4	General grounds for refusal
26.4.1	Discretionary grounds
26.5	Biometrics in the decision
26.6	Applications which do not have a full right of appeal GV51(LRA)
26.7	Monitoring of limited right of appeal refusals
26.8	Applications which have the full right of appeal (including family visits)
26.8.1	Family visitors [Updated 25 June 2008]
26.9	Service of notice of decision
26.10	ECM review
26.11	Referral to Home Office
26.12	Refusal on grounds of criminal conviction
26.12.1	Refusal on non-conducive grounds
26.13	Witnesses attending trials in the UK
26.14	Release of case notes to solicitors, applicants, sponsors or other third parties
26.15	Representations by applicants or sponsors after refusal
26.16	Refusal where false representations are used, false documents are submitted or material facts are not disclosed (deception) in a (current) entry clearance application [Updated 9 July 2008]
26.17	Refusal where the applicant has previously breached the UK's immigration laws [Updated 9 July 2008]
26.18	Refusing where the applicant has contrived in a significant way to frustrate the intentions of the immigration rules [Updated 9 July 2008]

Annexes

26.1	Notices of Refusal and Appeal Refusal: GV51(FRA), GV51(LRA), GV51(EEA) and GV51(FRA)(RoA) Appeal Form AIT-2 [Updated 15 July 2008]
26.2	Refusal wordings [Updated 21 July 2008]
26.3	Rehabilitation of Offenders Act - "spent" sentences [Updated 15 July 2008]

Chapter 26 - Refusals

26.1 - When to refuse locally
An Entry Clearance Office (ECO) should normally refuse locally any applicant who fails to satisfy the requirements of the Rules.

26.2 - Types of Refusal Form
There are three main types of refusal form and it is important that the correct one is used when refusing an application.

GV51(LRA) to be used for all refusals which do not have the full right of appeal.

GV51(FRA) to be used for all other refusals including family visits.

GV51(EEA) to be used for EEA refusals.

A separate form is used for the refusal of Direct Airside Transit Visas (see Annex 11.2)

Where there is a full right of appeal, the AIT-2 (appeal form) should be issued at the same time as the notice of refusal along with guidance notes on how to complete the form.

Examples of refusal and appeal notices can be found in Annex 26.1.

26.3 - Writing Notices of Refusal
In all unsuccessful applications whether or not they attract a full right of appeal, it is important to state which requirements of the Immigration Rules that have not been met, and to relate the most important facts of the case to them.

All Refusal notices must explain in clear terms the reasons why an application has been refused. The use of bullet points is an effective way of doing this, enabling the applicant/representative to easily focus on the reasons why the application failed to meet the requirements of the Rules.

It is important, therefore, to list all adverse factors leading to the decision and to ensure that they are relevant to the requirements of the Immigration Rules. It is also important that the reasons for refusal are supported by the interview questions and answers.

These principals apply to writing all refusal notices. The refusal notice and the interview notes will form the basis of the ECO’s defence of the decision if an appeal is lodged. It is necessary, therefore, to write an expanded refusal notice including any factors in the applicant’s favour. These should be written in a paragraph of prose before listing the reasons for refusal in bullet point form.

The following must be included in the refusal notice:

• a description of the application ("you have applied for...");
• the crucial facts ("but in view of...");
• the relevant provisions of the Rules ("I am not satisfied that..."use wording in Annex 26.2 where possible);
• the decision ("I therefore refuse your application")
• When it is evident that there are compassionate circumstances in an application, but refusal is still deemed appropriate, the ECO should make reference to these circumstances in the refusal notice to show that they have been taken into account.
• if more than one refusal provision in the Rules applies, use all applicable wordings, linking them with the words "moreover" or "furthermore"; if the ECO knows a Home Office reference number for the applicant, put it in the top left hand corner of the Notice of Refusal.

See also Annex 26.3 Best Practice Guidance February 2007 - How to write a refusal notice and appeal statement.

26.3.1 - Do's and don'ts of writing notices of refusal
Do's

• Always type the refusal notice on the correct form ans ensure it is saved correctly on Proviso.
• Complete the "category box" correctly so that it is clear which section of the Rules the application falls under (e.g. visitor, student, medical visit etc).
• Make it clear in the notice of decision if the application has been considered on papers or if the applicant has been interviewed.
• List all your reasons for refusal.
• Write unambiguous, sensible, jargon-free reasons for refusal related to the relevant provisions of the Rules.
• Include some detail (e.g. quote income, savings etc in figures).
• Avoid generalisations, stock phrases and any language that could be construed as prejudiced or opinionated.
• Include consideration of compassionate grounds where applicable.
• Make sure all parts of the form are completed and signed.
• Use the wording at Annex 26.2 to complete the summary where possible. Refusal templates are available on Proviso and should be used whenever possible.

Don'ts

• Never mention an asylum claim (as this breaches the confidentiality of such claims and could have dangerous and far-reaching consequences). If it is necessary, it is sufficient to refer to a person having applied to remain in the UK.
• Do not use the term "incentive to return" as legally this has no intrinsic meaning. Intention to leave the UK (not return) is the requirement of the Rules which needs to be satisfied.
• Do not use the expression "I am not convinced that..." There is no requirement for an ECO to be convinced; only satisfied on the balance of probabilities.
• Care should be taken with the phrase "there is no compelling reason for your visit". Visitors do not have to demonstrate a compelling reason for a visit. The phrase should not therefore be used alone, but may be used in conjunction with other reasons, e.g the cost of the visit is high in relation to the applicant’s means and given that there is no compelling reason for the visit, you are led to doubt the applicant’s intentions.
• Do not make value judgements such as "money spent on this trip could have been better used elsewhere".
• Do not use emotive statements. For instance "I believe you are exploiting your brother’s illness to gain admission to the UK".
• Do not use the term "overstayed" wrongly. A person has only overstayed if he or she has remained in the UK longer than the period of leave to enter granted without seeking an extension of stay. Staying longer than the period of time originally stated to the ECO is a different matter. In such cases, where it is a contributory factor to the refusal, it is important to make the length of stay relevant by linking it, for example, to the applicant’s circumstances or reasons for not complying with the original undertaking. An ECO may say "you said you intended a visit of 2 weeks but in fact remained for 6 months. You have not given a credible explanation as to why you stayed longer / how you supported yourself / how you were able to take 6 months leave from your job etc".
• Be careful of suggesting that because a sponsor or relative went to the UK and remained there the applicant will do the same. Only do this if you can demonstrate similarity in circumstances.

26.4 - General grounds for refusal
General grounds for refusal of entry clearance or leave to enter are set out in Paragraph 320 of the Rules. Mandatory grounds are given in Paragraphs 320 (1) - (7). Entry clearance must therefore be refused in the following circumstances:

• where entry clearance is being sought for a purpose not covered by the Rules;
• where the applicant is currently the subject of a deportation order;
• where the applicant has failed to produce a valid national passport or other document satisfactorily establishing his identity;
• where the Secretary of State has personally directed that the exclusion of a person from the UK is conducive to the public good;
• where the Medical Inspector has confirmed that, for medical reasons, it is undesirable to admit a person seeking entry clearance to the UK and an ECO is satisfied that there are no strong compassionate reasons justifying admission.

26.4.1 - Discretionary grounds
Discretionary grounds for refusal are set out in Paragraphs 320 (8) - (21). Entry clearance should normally be refused in the following circumstances:

• failure by an applicant to supply any information, documents, copy documents or medical report requested by an ECO;
• failure by a person seeking entry clearance as a returning resident to satisfy the ECO that he meets the requirements of paragraph 18 of these Rules, or that he seeks leave to enter for the same purpose as that for which his earlier leave was granted;
• production by an applicant of a national passport or travel document issued by a territorial entity or authority which is not recognised by Her Majesty's Government as a state or is not dealt with as a Government by them, or which does not accept valid United Kingdom passports for the purpose of its own immigration control; or a passport or travel document which does not comply with international passport practice;
• failure to observe the time limit or conditions attached to any grant of leave to enter or remain in the United Kingdom;
• the obtaining of a previous leave to enter or remain by deception;
• failure, except by a person eligible for admission to the United Kingdom for settlement or a spouse or civil partner eligible for admission under Paragraph 282, to satisfy the ECO that he will be admitted to another country after a stay in the United Kingdom;
• refusal by a sponsor to give, if requested to do so, an undertaking in writing to be responsible for the applicant's maintenance and accommodation for the period of any leave granted;
• whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document;
• failure, in the case of a child under the age of 18 years seeking leave to enter the United Kingdom, otherwise than in conjunction with an application made by his parent(s) or legal guardian, to provide the ECO, if required to do so, with written consent to the application from his parent(s) or legal guardian; save that the requirement as to written consent does not apply in the case of a child seeking admission to the United Kingdom as an asylum seeker;
• refusal to undergo a medical examination when required to do so by the ECO;
• save where the ECO is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom;
• where, from the information available to the ECO, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him/her leave to enter;
• failure by a person seeking entry into the United Kingdom to comply with a requirement relating to the provision of physical data to which he is subject by regulations made under section 126 of the Nationality, Immigration and Asylum Act 2002;
• Whether or not to the applicant's knowledge, the submission of a false document in support of an application.

However, if an ECO is satisfied that any of the above grounds are not met, they should not refuse solely on this alone. They should consider the application under the category of Entry clearance applied for and if not satisfied that the Immigration Rules are met they should refuse Entry Clearance, citing the reasons why the applicant has not satisfied the criteria and also include the relevant general paragraphs in the notice of decision. If you only refuse under Paragraph 320 and the appeal is allowed, you cannot then consider the substantive application and entry clearance will have to be issued.

See further guidance regarding refusing on criminal conviction and non-conducive grounds at 26.5 and 26.5.1 below.

Where referral is mandatory on nationality grounds, but the application fails to meet the normal requirements of the Rules, it can be refused locally without the need to follow the referral procedure.

If an application is referred to the Home Office or UK Border Agency, Visa Services Directorate, the ECO must wait for their response before proceeding.

26.5 - Biometrics in the decision
As with a WIOL match, entry clearance should not be refused solely on the grounds of an unfavourable biometric match, but it can shape the reasons for refusal. WIOL guidance gives advice to ECOs on how to word a refusal notice in the light of an unfavourable WIOL hit. The refusal is informed by such information but should not be based upon it. This guidance holds true for Biometrics matches. Thus, for example where an applicant has claimed on his/her VAF never to have visited the UK but biometric match results refute this, a refusal notice might read as follows:

On your visa application form you have claimed never to have visited the UK before, however, as a result of a Biometrics fingerscan, records held in the United Kingdom indicate that you have, in fact, previously been in the UK and applied to remain. I consider that your attempt to hide a previous application to remain in the UK has seriously damaged your credibility and casts doubt upon your whole application. I am therefore not satisfied that you are genuinely seeking entry to the UK for the purpose and duration you state. Furthermore, I note that the identity you have used in this application (Fred Bloggs, dob 01/01/70, nationality: XXX) is not the same as the identity you provided when previously in the UK (Joe Bloggs, dob 01/01/82, nationality: YYY). Therefore, I am also not satisfied as to your identity or nationality.

The applicant, when confronted with the information that our records indicate a previous (adverse) match event, may contest the match result itself. In Phase 1, all (software generated) unconfirmed matches will be confirmed by an officer in the Immigration Fingerprint Bureau (IFB) within 12 hours. However, where the ECO is satisfied that the evidence on the (unconfirmed) match screen is conclusive, deferring an application should not be used simply because an applicant contests the match. If the ECO does have doubts and cannot make the decision based upon the (unconfirmed) match result, they should refer to an ECM and consider deferral action to await confirmation from IFB. (See Training Manual) Confirmed matches should be considered 100% reliable.

Most unconfirmed match results will, however, contain sufficient biographic data, often including a photograph of the subject, to enable an ECO to be satisfied of a match with their applicant. Confronting applicants in interview should also be sufficient in many cases to force the applicant to admit their history. Deferral, merely to await a confirmed match result, should not be seen as an operational norm. In all cases, ECOs are required to specify on Proviso whether their decision to refuse an application would not have been made without the additional information provided by the biometric match. For example, where biometric match data has led to further enquiries or has proven a second, hidden identity etc. This management information requirement will be automated from the roll-out of Phase 2. Any additional notes for that application may be added as usual following this notation.

ECOs can only issue an application after they have viewed the match results screen. The issue button is disabled until this action is completed.

26.6 - Applications which, if refused, do not have a full right of appeal (GV51(LRA)
Certain categories of application for entry clearance do not attract the full right of appeal if the application is refused. They are:

• a visitor (except a family visit, see 26.3 below);
• a student following a course of study of not more than six months’ duration for which he or she has been accepted;
• those intending to study but who have not been accepted on a course (irrespective of proposed duration);
• a dependant of any of the above.

In addition, there is no entitlement to a full right of appeal against the following mandatory refusals:

• the applicant (or any person on whom the applicant is dependent) does not hold a relevant document required by the Rules (i.e. an entry clearance, passport, identity document or a work permit);
• the applicant (or any person on whom the applicant is dependent) does not satisfy a requirement of the Rules as to age or nationality or citizenship;
• the applicant (or any person on whom the applicant is dependent) is seeking entry for a period exceeding that permitted by the Rules.

The right of appeal is limited to any or all of the grounds referred to in Section 84(1)(b) and(c) of the Nationality Immigration and Asylum Act 2002.

ECOs should bear in mind that the decision can only be challenged under Human Rights Act and Race Relations, and could be subject to challenge in the courts through judicial review.

In these cases, refusal of entry clearance should be issued on a GV51(LRA).

26.7 - Monitoring of Limited Rights of Appeal refusals
The Immigration and Asylum Act 1999 amended by Paragraph 27 of schedule 7 of the Nationality, Immigration and Asylum Act 2002 requires the Secretary of State to appoint an Independent Monitor for certain categories of entry clearance refusals with limited rights of appeal - visitors, short term students, prospective students and their dependents.

Twice a year, the Monitor instructs  UK Border Agency, Visa Services Directorate to obtain a global sample of cases within the Monitor's remit. This sample forms the basis of a Report which the Monitor submits to the Secretary of State who lays it before Parliament along with UK Border Agency, Visa Services Directorate response to any recommendations made. In addition to assessing decision quality for the applications within remit, the Secretary of State has directed the Monitor to review the information available to applicants with limited appeal rights and the handling of complaints made by such applicants. The Monitor visits Posts overseas for three months each year and produces visit reports which are published on this website along with UK Border Agency, Visa Services Directorate responses on any recommendations made".

26.8 - Applications which have, if refused, a full right of appeal:

• Family visitors
• Non- settlement
• Settlement
• EEA applications (See Chapter 21 )

In these cases refusal of Entry Clearance should be issued on a GV51(FRA) / GV51 (EEA)

26.8.1 - Family visitors  [Updated 25 June 2008]
Those applicants who intend to visit a member of their family in the UK have full rights of appeal (FRA) against any decision to refuse them an entry clearance.  
Under the Immigration Appeals (Family Visitor) Regulations 2003, a family visitor is defined as:
(a) the applicant's spouse, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or first cousin (NB: "first cousin" means, in relation to a person, the son or daughter of his uncle or aunt);
(b) the father, mother, brother or sister of the applicant's spouse;
(c) the spouse of the applicant's son or daughter;
(d) the applicant's stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister; or
(e) a person with whom the applicant has lived as a member of an unmarried couple for at least two of the three years before the day on which his application for entry clearance was made.
In addition:
• Children adopted under an adoption order recognised in UK law are treated as if they are the natural children of the adoptive parents; and,
• The Immigration Appeals (Family Visitor) Regulations 2003 pre-date The Civil Partnership Act (2004).  Civil partners are considered “a member of the applicant’s family” in the same way as a spouse for the purposes of the Family Visitor Regulations

ECOs should not seek documentary evidence of a claimed relationship unless there are strong grounds to doubt it (such as a disparity in age that makes the relationship biologically unlikely).  

If an applicant has stated on their VAF that they are applying for a Family Visit visa and their application is refused, they should be refused with Full Rights of Appeal, unless the ECO has clear evidence satisfying him that the applicant is not seeking entry clearance for the purpose of visiting a family member. This may be evidence that demonstrates that the person to be visited is not a qualifying family member or evidence that shows that the applicant is not related to the person he seeks to visit in the manner he has claimed.  In these cases the applicant can be refused with limited rights of appeal only.  The refusal notice should give clear reasons as to why they do not have a full right of appeal.  
E.G: You have applied to visit xxxx but he/she does not qualify as a family member under the Immigration Appeals (Family Visitor) Regulations 2003. You therefore do not have a full right of appeal against this decision.

If the ECO has doubts about either the nature of the visit or whether the relative to be visited is a qualifying relative or not, the applicant should be refused with full rights of appeal.  The ECO’s doubts should be expressed in the refusal notice and the ECM Review which forms part of the respondent’s bundle if the decision is appealed by the applicant.

There will be occasions when different members of a family group who have been refused visit entry clearance have different rights of appeal under The Immigration Appeals (Family Visitor) Regulations 2003.  In such cases those members of the group with full rights of appeal must be refused using form GV51(FRA) and those with limited rights of appeal only must be refused using form GV51(LRA).  It is therefore important that all applicants receive separate refusal notices.  However, a child visitor’s notice of refusal should be served on the parent.  It is inappropriate to give a teenage child a notice of refusal that makes negative references to their parent’s circumstances or financial information.  Equally, when refusing other groups, ECOs must take care to ensure that no applicant receives inappropriate information about another group member on their notice of refusal.

26.9 - Service of notice of decision for all refused applications
If interviewed, the applicant should be given the following:

• notice of decision GV51 (FRA) / GV51 (EEA) / GV51 (LRA) signed and dated by the ECO and applicant;
• a copy of the interview record;
• appeal form AIT-2( appeal form) plus guidance notes.

If the application has been considered and refused on papers you must ensure all the above is sent either by mail directly to the applicant or sent to the commercial partner to forward to the applicant.

In all cases you must ensure that the relevant method of service has been noted on the refusal notice.

Update Proviso and pass to ECM for review.

26.10 - ECM Reviews
As with limited rights of appeal refusals, all family visit visa refusals must be reviewed by an ECM within 24 hours to ensure that the decision is reasonable (taking into account any human rights issues), is in accordance with the Immigration Rules and that the refusal notice is properly worded. The procedures to follow are the same as in Paragraph 26.2.2 above. This review is in addition to the review undertaken following receipt of an appeal (see Chapter 27).

26.11 - Referred cases
In cases where the application has been referred to the Home Office for a decision, they will provide the wording to be used on the notice of decision. Home Office refusals will always be from the Secretary of State e.g "... the Secretary of State is not satisfied that you..."

26.12 - Refusal on grounds of criminal conviction
Paragraph 320(18) of the Rules states that an application should normally be refused if that person has been convicted of an offence in any country which, if committed in the UK, would be punishable by imprisonment of 12 months or more. If ECOs are not sure whether the offence would attract such a sentence, they must defer the application and seek advice from ECO Support, UK Border Agency, Visa Services Directorate.

If there are compassionate or exceptional circumstances involved, it may be possible for entry clearance to be issued on authority from the Home Office on a discretionary basis. Applications falling within this category must be referred to the ICD (now MMD-General Group) for a decision. Any case involving an urgent need to travel should be separately notified to ECO Support, UK Border Agency, Visa Services Directorate at the earliest possible opportunity.

Under the Rehabilitation of Offenders Act, certain sentences are considered "spent" after a period of time (see Annex 26.3 for details). ECOs should not refuse an application under this paragraph if the applicant’s conviction falls within these time frames.

26.12.1 - Refusal on grounds that exclusion is conducive to the public good
Paragraph 320(19) of the Rules allows ECOs to refuse applications where the person’s exclusion from the UK would be "conducive to the public good". The paragraph mentions the person’s "character, conduct or associations" as factors to be assessed. These are examples only. The scope of the activities that might warrant a person's exclusion on conducive grounds are wide ranging, although as with any case a decision to refuse must be properly justified.

Examples of the types of case where refusal on these grounds might be appropriate include (although this list is not comprehensive):

• where a person’s admission could adversely affect the conduct of foreign policy;
• where there is reliable evidence that a person has been involved in criminal activities, even though he/she has not been convicted;
• where the person’s admission would be contrary to internationally agreed travel restrictions (e.g. under UN sanctions or EU measures) but the relevant Resolution or Common Position has not been designated under the Immigration (Designation of Travel Bans) Order 2000. If it has been designated under the Order, section 8B(1)(b) of the 1971 Act must be used to refuse LTE;
• where the person’s admission might lead to infringement of UK law (e.g. a child spouse applying to visit (refusal for settlement is covered elsewhere in the Rules);
• where the person’s admission might lead to an offence being committed by someone else;
• where a person's activities are such that their presence in the UK is likely to cause a public order concern.

When ECOs refuse an application for entry clearance on these grounds they must give the reasons for refusal to the applicant. In Limited Rights of Appeal refusals, this must be done on the GV51(LRA)Refusal Notice; where there is a full right of appeal, the detailed reasons will be given in on the GV51(FRA) and the explanatory statement.

In these cases, the burden of proof is on the ECO.

26.13 - Witnesses attending trials in the UK
ECOs may receive applications from key witnesses to attend a trial in the UK. If the applicants do not meet the visitor requirements of the Rules but provide confirmation from solicitors that attendance at the trial is essential to either the prosecution or the defence, ECOs should refer full details of the case to the Operational Policy Section,

UK Border Agency, Visa Services Directorate who will liaise Managed Migration and Border Control Implementation.

26.14 - Release of case notes to solicitors, applicants, sponsors or other third parties
If/when ECOs receive requests direct from applicants, who have been refused or from third parties, such as solicitors, who are clearly acting on behalf of the applicant, they should release a copy of the original interview notes, if not already issued with the refusal. If ECOs receive requests from a sponsor or a solicitor acting on behalf of a sponsor, they should only release case details if it is clear that the applicant has given his/her authority. This need not be written authority although in cases of doubt, it might be prudent to obtain it.

ECOs should ensure that their notes are as full as circumstances allow and contain no confusing personal shorthand. Any abbreviations can be explained in a footnote.

26.15 - Representations by applicants or sponsors after refusal
If new information is provided, eg a change in sponsor; change in educational establishment, the ECO should advise that this should form the basis of a fresh application. A different ECO should consider such an application, where possible.

26.16 - Refusal on deception grounds [Updated 30 May 2008]

26.16.1 - What is Deception?
By deception we mean making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.

26.16.2 - What are the Immigration Rules on deception? [Updated 9 July 2008]
Under Paragraph 320(7A) of the immigration rules a person must automatically be refused entry clearance if false representations or documents are used (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts are not disclosed, in relation to the application.

Refusals under Paragraphs 320(7A) of the immigration rules are mandatory.  ECOs should also consider whether it is appropriate to refuse the applicant under paragraph 320(11) of the immigration rules where he has “previously contrived in a significant way to frustrate the intentions of the Immigration Rules” (see 26.18 below).

26.16.3 - Refusing entry clearance applications if deception is used under  Paragraph 320(7A)   of the Immigration Rules

Standard of proof
You must only refuse applications under 320(7A) if you are satisfied to a high standard that false representations or documents have been used, or material facts have not been disclosed.  Note that in all cases you must have good evidence to show this.

Any cases involving deception must be established to a higher balance of probabilities than is required for other refusals under the immigration rules (so it must certainly be more likely than not that deception has been used). From 1 April 2008, a person who has knowingly used a false document in a previous application will have future applications refused for ten years. (see paragraph 26.17 below).

It is for us to prove that an applicant has used deception. This means that it is not enough for us simply to doubt that the applicant is telling the truth. In order to refuse under this Rule, we need positive evidence that they are lying, or that a document that they have submitted is false.

Of course, if we are not satisfied that the applicant qualifies under the route they have applied under, they should be refused under the rules for that route.

False representations
A false representation is made when an applicant or third party lies or makes a false statement in an application, either orally or in writing. To refuse the application, you must be satisfied to a high standard that a false representation has been made.

If you are so satisfied, then the application must be refused even if the false representation is not material to it. This means that the false representation does not need to be relevant to your decision to grant entry clearance. 

The application must also be refused even where the applicant was not aware that false representations have been made. 

However, you should not refuse an applicant because you suspect that false representations have been made or because of minor inaccuracies in the application, for example an inaccurate address or mis-spelt name on a VAF.

Some examples of false representations:
A visa applicant states that he is a project manager for a company earning a significant salary. It is discovered that he is in fact the cleaner for the company on a low salary.

An applicant applies for entry clearance on the basis of his marriage to a British citizen, and states in his application form that he has never been married before. But we receive a marriage certificate from another wife, which is verified, showing that he is already married.

False documents are submitted
You must only refuse the application under Paragraph 320(7A) of the immigration rules on the grounds of submission of false documents if you are satisfied to a high standard that a false document has been submitted (see the information below). You cannot refuse the application if you only doubt or suspect that a document is false.

In order to be satisfied to a high standard that a document is false, you must:

• have examined the document and written a forgery report setting out your findings (including photographic evidence where appropriate) to justify your conclusion that the document is false; or
• have written evidence, as a result of checks carried out, that the document is false, and have completed a Document Verification Report; or
• show that the document is identical to another document on which you have current and reliable evidence that it is false and have completed a Document Verification Report (e.g. issuing body has either given information on document's security features or already advised that an identical document is false);or
• have an admission from the applicant (in writing or recorded in the Q&A notes) that they used a false document or made false representations.

The application must also be refused even if the false document would not have been relevant to your decision to grant entry clearance and even if you are satisfied that the applicant was unaware that the document was false.

What is a false document?
A false document includes:

• a genuine document which has been altered or tampered with;
• a counterfeit document (one that is completely false);
• a genuine document that is being used by an impostor
• a genuine document which has been fraudulently obtained or issued;
• a genuine document which contains a falsified or counterfeit visa/endorsement.

Document verification
The immigration rules for:

• the Points-Based System;
• the Highly Skilled Migrant Programme and
• Family Members of applicants under the Points-Based System

all contain a further provision, which governs unverifiable documents.

These are documents about whose authenticity we have reasonable doubts but which we cannot show to be false. Where this happens, we will attempt to verify the documents and, if we cannot do so, we will either disregard the document - awarding no points for it - or (in an HSMP case) refuse the applicant altogether.

However, you cannot refuse an application under Paragraph 320(7A) of the immigration rules because documents are unverifiable. To use Paragraph 320(7A) you need positive evidence that the documents are false.

26.16.4 - Material facts have not been disclosed
You need to show that the withheld information would have been relevant to your decision. But you cannot refuse an applicant on these grounds if you have not indicated to the applicant the kind of information that is relevant to the application. The Court of Appeal (in the case of IRACKI) has held that an applicant is not obliged to volunteer information unless he is given an indication of the kind of information which is material to the application.

An example:
The wife of a man in the UK who has LTR under Tier 1 (General) applies to join her husband as his dependant, but doesn't mention that the marriage has broken down. The husband has sent a letter stating that the marriage no longer subsists.

26.16.5 - Discretion to issue if false documents or false representations were used or material facts not disclosed
Refusals on the grounds of deception under Paragraph 320(7A) of the Rules are mandatory. As with all applications, you will need to consider any human rights grounds (in particular right to family life under Article 8) which would justify issuing the entry clearance. If there are exceptional and compelling circumstances which are likely to justify a grant of leave outside the rules, you need to refer the application to NCC2 following the usual HO Referrals process in Chapter 25) for a decision to be made outside of the immigration rules.

26.16.6 - Does the applicant have the full right of appeal?
Only if there is a right of appeal for the category in which the applicant has applied e.g. there is a full right of appeal for family visits but not for non-family visits. But all applicants will have limited rights of appeal under the Human Rights Act or Race Relations Act.

26.16.7 - EEA family permits and 320(7A) and 320(7B) [Updated]
If a non-EEA family member of an EEA national is applying for an EEA Family Permit under the Immigration (European Economic Area) Regulations 2006, they cannot be refused under Paragraph 320 of the Immigration Rules. If they are applying under the Immigration Rules eg. as a visitor, they can be refused under the Immigration Rules. Non-EEA family members of an EEA national applying for EEA Family Permits, who are not legally resident in the EEA and are coming from outside the EEA will also need to meet criteria under the Immigration Rules as allowed for by the EEA Regulations. However, you need to be cautious if you intend to refuse the application because they were either in the UK illegally, overstayed or breached their conditions. This is because there is no requirement to obtain a residence card to show that they are a family member of an EEA national exercising treaty rights in the UK. If there is a possibility that the applicant was a family member of an EEA National exercising treaty rights in the UK when they overstayed ore breached their conditions, you cannot refuse under 320(7B) unless you have evidence that proves otherwise.

26.16.8 - Refusal process for refusals under Paragraph 320(7A)  [Updated 9 July 2008]
Before you refuse an applicant, you need to:

• consider if there are any Human Rights grounds to justify issuing entry clearance;
• refer the application to NCC2 following the usual HO referrals process if there are exceptional and compelling circumstances;
• ensure a written document examination report or document verification report has been completed, signed and attached to the file;
• consider if it is appropriate to also refuse the applicant under paragraph 320(11) of the immigration rules where he “has contrived in a significant way to frustrate the intentions of the Immigration Rules.” (see 26.18 below); and
• obtain ECM authorisation for the refusal.

You might receive such evidence during the application process, including any interview, or following refusal, when AR or appeal papers are received. 

In such cases, the refusal will still stand but the applicant will not automatically have any future applications refused when the new rule Paragraph 320(7B) is introduced on 1 April 2008.

It is for the applicant to show that he did not know that a document was false.  This will be particularly difficult if the document is from the applicant himself e.g. their degree certificate or bank statement, as applicants will be expected to know if they have a degree and what funds are in their bank account.

26.16.9 - Cancelling a visa if deception is uncovered after issue [Updated 9 July 2008]
You can revoke the entry clearance under Paragraph 30A of the Rules in certain circumstances or you may need to refer the application to ECO support. Staff can obtain guidance on how to cancel an entry clearance from ECO support.

26.16.10 - Refusal wordings

You have applied for...

False representations/documents

In your application, (you/name of other person) said [false statement], OR
(you/name of other person) submitted [the documents that are false].

I am satisfied that the [statement/documents] [were/was] false because [reasons]

As false [representations have been made] OR [false document have been submitted] in relation to your application, it is refused under Paragraph 320(7A) of the Immigration Rules.

Failure to disclose material fact
In your application, [you or another person] failed to disclose the following facts [state facts].

I am satisfied that these facts were material to the application because [state reasons].

As material facts were not disclosed in relation to your application, it is refused under Paragraph 320(7A) of the immigration rules.

26.17 - Refusal where the applicant has previously breached the UK's immigration laws (Paragraph 320(7b))

320(7B) DOES NOT APPLY TO ALL CATEGORIES/CASES. SEE CHAPTER 26.17.4 BELOW FOR A FULL LIST

26.17.1 What is a previous breach of the UK's immigration laws?  
Under paragraph 320(7B) of the immigration rules, an applicant has previously breached the UK’s immigration laws if, in the past, he has:

• overstayed for more than 28 days (or for any period if, after
• overstaying, he went home at public expense);
• breached a condition attached to his leave,
• entered the UK illegally; or
• used deception in a (previous) entry clearance, leave to enter or remain application (whether successful or not).

26.17.2 What immigration rule covers people who have previously breached the UK's immigration laws? [Updated 9 July 2008] 

From 1 April 2008, under Paragraph 320(7B) of the immigration rules an applicant must have their entry clearance application  refused if they used Deception (Please read paragraph 16.2 above) in an entry clearance application within the previous ten years. 

In addition, an applicant must have their application automatically refused if they:

• sought leave to enter or remain by deception,
• were an illegal entrant
• overstayed for more than 28 days (or any period if they left at public expense- including through an Assisted Voluntary Return or similar programme) or
• breached their conditions of stay (e.g. worked illegally).  

Where the above conditions are met, applications must be refused for the following periods from the date the applicant left the UK:

• 1 year if they left the UK voluntarily, and not at public expense,
• 5 years if they left the UK voluntarily, at public expense  (e.g. received an Assisted Voluntary Return),
• 10 years if they were removed or deported from the UK.

ECOs also need to consider if it is appropriate to refuse the applicant under paragraph 320(11) where he “has contrived in a significant way to frustrate the intentions of the Immigration Rules.” The ECO must also consider whether the applicant meets the requirements of the immigration rules for the category under which the applicant is applying and whether any other 320 rules apply.

26.17.3 Do I have to accept an application from a person who has breached UK immigration laws?

Yes, you must continue to accept these applications.  But you must automatically refuse the application under paragraph 320(7B) of the Rules unless rule 320(7B) does not apply to the applicant (please read below).  

26.17.4 When does rule 320(7B) not apply? [Updated 9 July 2008]

Under paragraph 320(7C) of the immigration rules, You must also not refuse an applicant under 320(7B) if they are applying in the following categories: 

• Spouse, civil partner, unmarried or same-sex partner (Paragraphs 281 or 295A);
• Fiance(e), or proposed civil partner (Paragraph 290);
• Parent, grandparent or other dependant relatvie (Paragraph 317);
• Spouse, civil partner, or unmarried or same-sex partner of a refugee or person with humanitarian protection (Paragraphs 352A, AA, FA. FD);
• Those applying to exercise rights of access to a child (Paragraph 246);
• They were under the age of 18 at the time of the most recent breach of the UK’s immigration laws.

As concessions outside the Rules, you should also not refuse an applicant under 320(7B) if:

• The applicant has been accepted by UKBA as a victim of trafficking (please read 26.17.6 below);
• the applicant was in the UK illegally on or after 17 March 2008 (date of announcement) and left the UK voluntarily before 1 October 2008 (please read 26.17.5 below).

In addition you must not refuse an applicant under 320(7B) if:

• false documents or false representations were used in a previous visa or leave to enter or remain application, and the applicant was not aware that the documents or representations were false (paragraph 26.17.5 below);
• the applicant has raised human rights issues (in particular right to family life under Article 8) which would justify issuing the entry clearance;
• the applicant has raised exceptional and compelling circumstances which are likely to justify a grant of leave outside the rules, you need to refer the application to NCC2 following the usual HO Referrals process (Chapter 25) for a decision to be made outside of the immigration rules;
• the period specified in 26.17.2 for automatically refusing applications has expired; or
• following their breach of UK immigration laws, UKBA issued a visa or leave to enter or remain in the knowledge of that breach e.g. a student who has overstayed but was granted LTE following an out of time application.

Although 320(7B) may not apply, an ECO must still consider whether the applicant meets the “significantly contrived to frustrate” test and whether it is appropriate to refuse under 320(11) of the immigration rules.  The ECO must also consider whether the applicant meets the requirements of the immigration rules for the category under which the applicant is applying and whether any other 320 rules apply.

26.17.5 The 17 March concession and establishing voluntary departure
The concession only applies to voluntary departures.  It does not apply where the applicant was removed or deported from the UK.

Remember that making a decision to remove a person  (Form IS 151B), or issuing a notice identifying him as an immigration offender (IS 151A part 2) does not in itself mean that the applicant has been removed from the country.  It is perfectly possible for someone to leave the country voluntarily after a decision has been taken to remove him.  You therefore need to be satisfied on the balance of probabilities that the applicant was actually removed before deciding that the concession does not apply to him.  

26.17.6 Establishing whether an applicant has been accepted as a victim of trafficking
Posts are unlikely to see very many cases where victims of trafficking apply for entry clearance. They will largely be dealt with by caseworkers in the UK. If an applicant states that UKBA has accepted them as a victim of trafficking, ECOs need to contact Evidence and Enquiry (using HOReferrals) to check the information.

26.17.7 Refusals under 320(7B) where false documents or false representations were used in a previous application
If an applicant has previously been refused entry clearance because a false document was used or a false representation was made, the applicant may claim that they were unaware that the document or representation was false.  

Unless the applicant can prove this, they must be automatically refused under paragraph 320(7B) for 10 years from the date deception was used. Where the documents relate directly to the applicant (e.g employment references, qualifications or financial details), such a claim would be likely to fail unless the applicant has clear evidence that an error has been made (eg written confirmation from a financial institution that they had previously supplied us with incorrect information).   

26.17.8 Refusals under 320(7B) where the applicant has previously breached immigration law in the UK.
Where the applicant committed an immigration offence in the UK, his future applications will need to be refused for 1, 5 or 10 years after he left the UK, with the exact length of the period depending on how he left.  

Assisted Voluntary Return at public expense 
Where the applicant left the UK voluntarily but at public expense (e.g. through an Assisted Voluntary Return), then they will have future applications refused for five years, but only if they committed a breach of immigration law before his return.

Where the applicant has returned under the AVRIM (Assisted Voluntary Return for Irregular Migrants) programme, they will, by definition, be an immigration offender, and so should have applications to return refused for five years.  

Where the applicant has returned under the VARRP (Voluntary Assisted Returns and Re-integration Programme) scheme, you will need to be satisfied that the applicant has breached UK immigration laws.  If they are an immigration offender, they will have future applications refused for five years.

What is removal?
If a person has been removed or deported, then his future applications will be refused for ten years.  

However, you need to be satisfied that the applicant was actually removed or deported before applying these provisions. 

Remember that making a decision to remove a person  (Form IS 141 A part 2 or IS 151B), or issuing a notice identifying him as an immigration offender (IS 151A) do not in themselves mean that the applicant has been removed from the country.  It is perfectly possible for someone to leave the country voluntarily after a decision has been taken to remove him, in which case future applications should only be refused for one or five years, not ten.    

26.17.9 What if an applicant has breached more than one of these immigration laws? 
Where more than one breach of the UK’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be taken into account. 

For example, an applicant left the UK voluntarily at her own expense in January 2008 and applied for entry clearance using false documents in February 2008.   Any subsequent entry clearance application  must be automatically refused for 10 years, until February 2018.. This is the longer refusal period where deception has been used in an entry clearance application.  The shorter refusal period of 1 year for leaving the UK voluntarily is not applicable.

26.17.10 EEA family permits and 320(7A) and 320(7B) [Updated]
Please read 26.16.7 above.

26.17.11 What is the process for refusing an applicant under paragraph 320(7B)?
Please read 26.16.8 above

26.17.12 What is the standard of proof for refusing under 320(7B)
You must only refuse applications under 320(7B) if you are satisfied to a high standard that the applicant has previously breached UK immigration laws (please see 26.17.2 above). You must have good evidence to show this. For example, records showed that the applicant overstayed.

Any cases involving deception must be established to a higher balance of probabilities than is required for other refusals under the immigration rules (so it must certainly be more likely than not that deception has been used).  Where the previous “offence” that triggers refusal is one of deception (either in an entry clearance application or in one for leave to enter or remain), you will need to take into account representations made by the applicant as to why there was in fact no deception.   However, subject to that, you can assume that the officer who took that decision applied the correct burden and standard of proof, unless the decision was overturned (e.g. on appeal, Judicial Review or following reconsideration). 

Examples of where a previous decision will have been taken on the basis of deception include:

• Electronic copy of refusal notice held only (no other papers/docs).  Applicant refused under e.g. para 40 and reference made to the fact they applicant used false docs.
• Electronic copy of refusal notice held (no other papers/docs held). Applicant refused under 320(21) (false docs), 320(7A) or other deception rule.
• Electronic copy of refusal notice which makes reference to deception, false document/relevant papers held.

Where our earlier decision was overturned on appeal, you will need to consult the Adjudicator or AIT’s determination to see if it overturned our finding that deception was used.  If it did, then you should not apply paragraph 320(7B) to future applications.  If the determination is not available, then you should give the applicant the benefit of the doubt and assume that our decision on this point decision was overturned.  

26.17.13 Does the applicant have a full right of appeal under Paragraph 320(7B)
Only if there is a right of appeal for the category in which the applicant has applied e.g. there is a full right of appeal for family visits but not for non-family visits. But all applicants will have limited rights of appeal under the Human Rights Act or Race Relations Act.

26.17.14 How do I deal with applications after the automatic refusal period is over?
You cannot refuse the application under 320(7B) but the applicant will still need to meet the other requirements of the Immigration Rules to obtain an entry clearance.

26.17.15 - Refusal wordings

You have applied for...

Use of deception in previous entry clearance application 
 
You were refused entry clearance for using deception by [explain] on [insert date] (refusal notice attached).[I am therefore refusing you entry clearance under paragraph 320(7B) of the immigration rules.  Any future applications will also be automatically refused, for the same reason, under paragraph 320(7B) of the immigration rules until [10 years after the previous refusal- i.e. the application in which deception was used]

Use of deception in previous leave to enter or remain application

You were refused [leave to enter/leave to remain] for using deception by [explain] on [insert date] (refusal notice attached).[I am therefore refusing you entry clearance under paragraph 320(7B) of the immigration rules.  Any future applications will also be automatically refused, for the same reason, under paragraph 320(7B) of the immigration rules until [depends on how applicant was removed] after the previous refusal- i.e. the application in which deception was used] 

Breach of UK immigration laws

You have [been in the UK illegally, breached your conditions of stay, overstayed/used deception in an application for leave to enter or remain] and [left the UK voluntarily at own/public expense on…][ was removed/deported from UK on……].  

I am therefore refusing you entry clearance under paragraph 320(7B) of the immigration rules.  Any future applications will also be automatically refused, for the same reason, under paragraph 320(7B) of the immigration rules until [1, 5 or 10 years after the applicant left the UK]

26.17.16 Refusing an applicant under 320(7A) and 320(7B) [Updated]
An ECO can refuse an application automatically under 320(7B). However, it is recommended, given our track record at appeal on refusing on false documents alone, that if appropriate, the refusal notice should also cover the category of the rules under which the applicant has applied. We will review this policy if our success rate for refusing on false documents improves at appeal. To this end, we will be sending out new document examination and verification report forms shortly with detailed guidance on how to write forgery reports and complete verification forms (cleared with AIT) to follow.

If an applicant uses deception in the current application they can only be refused under 320(7A). The automatic refusal of future applications does not apply at this point. An applicant can only be refused under 320(7B) if they used deception in a previous application. Any future application will then be automatically refused, for the same reason, for 10 years from the date of the previous refusal.

26.17.17 320(7B) and students refused LTR after 1 September 2007 [Updated]
An applicant should not be refused under 320(7B) for previously overstaying in the UK if they were refused lleave to remain as a student solely on the basis that they had made an out of time application (AECIP 2/2008 refers).

26.17.18 Deception is discovered after the visa is issued [Updated]
If the applicant re-applied for a visa, we would refuse under 320(7B) and the 'automatic refusal period' would take effect from the date the deception was used eg. the date the original visa or leave was issued. If the visa is still valid, the visa will need to be cancelled first (AECIP 50/2006 refers).

26.17.19 Monitoring impact of new deception rules [Updated]
Managed Migration Policy wants to monitor the impact of these new rules. We will me making the necessary changes to Proviso, in September 2008 update, so that information can be obtained automatically. In the meantime, visa staff should record the following information on Proviso:

When refusing a visa under 320(7A) or 7(B)
Record "320(7A) or "320(7B)" in the notes field of Proviso

When refusing/issuing a visa where applicant benefits from 320(7B) concession (was in the UK illegally between 17 March and 1 October 2008)
Record "320(7B) concession" in the notes field of Proviso.

26.17.20 Categories who are exempt from immigration control [Updated]
Applicants who are exempt from immigration control must not be refused under any part of the Immigration Rules.

26.17.21 Refusing applicants under 320(7A) and 329(7B) if visa previously issued in the knowledge that deception was used [Updated 30 May 2008]
Applicants must be refused if they meet the requirements of 320(7A) or 320(7B). In deception cases, you must also be satisfied to a high standard that deception has been used. (See 26.16.3 above).

26.18 Refusing where the applicant has contrived in a significant way to frustrate the intentions of the immigration rules  [Updated 9 July 2008]

26.18.1 What does “contrived in a significant way to frustrate the intentions of the immigration rules” mean?

An applicant should normally be refused for ‘contriving in a significant way to undermine the intentions of the immigration rules.' This is where an applicant has previously been an illegal entrant, overstayed, breached a condition attached to his leave or used deception in a previous entry clearance, leave to enter or remain application, but only where there are aggravating circumstances. Aggravating factors include offences such as absconding, not complying with reporting restrictions, using an assumed identity or multiple identities to obtain asylum benefits, state benefits, tax credits goods or services, receiving NHS care to which not entitled, a sham marriage, harbouring an immigration offender and facilitating/people smuggling. This is not an exhaustive list and all cases must be considered on their merits taking into account family life in the UK and the level of responsibility for the breach in the case of children. ECOs will need to obtain ECM authorisation for all refusals under Paragraph 320(11).  

26.18.2  When should an applicant be refused under 320(11)
This is a discretionary refusal.  Where an applicant falls to be refused under 320(7A) or 320(7B), the ECO must also consider whether it is also appropriate to refuse the applicant under paragraph 320(11).  Where 320(7C) applies which makes an applicant exempt from 320(7B), an ECO must consider whether a refusal under paragraph 320(11) is appropriate.    

26.18.3 Appeal rights under 320(11)
An applicant will only have a full right of appeal if there is a full right of appeal for the category in which the applicant has applied e.g. there is a full right of appeal for family visits but not for non-family visits.  But all applicants will have limited rights of appeal under the Human Rights Act or Race Relations Act.

26.18.4 Refusal wordings