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Home Office sticks to its guns on paragraph 322(5)

Written by
Asad Ali Khan
Date of Publication:
05 November 2019

In Balajigari [2019] EWCA Civ 673 (discussed here), the Court of Appeal held that the use of paragraph 322(5) of the Immigration Rules in the cases of highly skilled Tier 1 (General) migrants (T1GMs) was "legally flawed" because SSHD decision-makers jumped to the unfair conclusion that any earnings discrepancies in T1GM applications are the result of dishonesty, without giving applicants an opportunity to proffer an innocent explanation. Hickinbottom, Underhill and Singh LJJ held that where the decision-maker is minded to refuse indefinite leave to remain (ILR) under paragraph 322(5) on the basis of the applicant's dishonesty, or other reprehensible conduct, it is necessary as a matter of procedural fairness to indicate clearly to the applicant that the decision-maker has that suspicion, so as to give the applicant an opportunity to respond. The Home Office is required to take that response into account before concluding that there has been such conduct. The court said that refusal was "functionally equivalent" to a removal decision and that the lack of a "minded to refuse" letter rendered the refusal decisions procedurally unfair. "Earnings discrepancy" cases T1GM applicants were refused ILR because of discrepancies between earnings figures declared in applications for leave to remain and the figures declared in their tax returns for equivalent periods or a failure to file any return. Ideally an applicant's immigration application should be free from discrepancies, errors and contradictions.

But this is easier said than done and most people cannot recall what they had said at an earlier stage and of course to make errors is only human. Immigration law and Home Office decision-makers might well take a different view. Paragraph 322(5) applies where it is "undesirable" to permit an applicant to remain in the UK "in the light of his conduct … character or associations or the fact that he represents a threat to national security" and the rule is set out under part 9 (grounds for refusal) of the Immigration Rules. Under the T1GM scheme, which used to be a key part of the points-based system, applicants were awarded points for attributes in which earnings played a major part. Hence it was possible for people to claim beefed up sums in earnings to earn points in immigration applications. Whether the same figures were recorded with HMRC was another matter. The Home Office review of these cases showed that since 2015 a total of 1,697 ILR applications from T1GMs migrants had been refused using paragraph 322(5). The judgment in Balajigari was seen as a positive development in this field but the new Home Office guidance on false representations is taking a tough stance making further litigation inevitable.

Despite Balajigari the starting point is still AA (Nigeria) [2010] EWCA Civ 773 where Rix LJ held that before an application can be refused on grounds of false representations:

dishonesty or deception is needed, albeit not necessarily that of the applicant, to render a 'false representation' a mandatory ground for refusal.

In Balajigari the court made reference to its earlier decision in Citizens UK [2018] EWCA Civ 1812, discussed here, on procedural fairness and entry of UASC to the UK, where it examined authorities such as Osborn [2013] UKSC 61 and Fayed [1998] EWCA Civ 946.

Impact of Balajigari

The Home Office guidance on false representations records that in Balajigari the Court of Appeal took the view that where a decision-maker is considering refusing an application, or curtailing leave, on the basis of false representation, the applicant must be provided an opportunity to address that allegation prior to a decision being made. It is necessary for the decision-maker to provide an applicant a "minded to refuse notification", in other words the decision-maker must inform the applicant that the refusal of the application is on the cards owing to false representation. The decision-maker must set out exactly what the allegation is and he must make it clear that dishonesty is being alleged. Moreover, the applicant must also be given the opportunity to respond to the allegations levelled at him.

In light of the minded to refuse notification the decision-maker may ask for any response either in a personal interview or by letter and then in the light of the response (if any), the decision-maker must decide whether there is sufficient evidence that the applicant (or, if relevant, a third party) has been dishonest. The guidance on false representations says that the decision-maker must give the applicant a reasonable period of time in which to reply to the minded to refuse notification sent by letter or, if the applicant states he wants to provide documentary evidence to support an explanation given in an interview. In most cases 14 calendar days will be sufficient but what is reasonable will depend on all the circumstances.

The circumstances where the decision-maker must tell the applicant that he is alleging dishonesty and give him an opportunity to respond are where both of the following apply (i) the applicant may not necessarily know about the information that has been considered or its significance, for example information obtained directly from another government department, and (ii) the overall implications for an applicant of a finding of dishonesty are significant.

On the first limb, it is the case that whether the applicant could reasonably be expected to have known about the issue in advance of the decision-maker's allegation will depend on the circumstances; for e.g., the applicant may have stated that he have never received public funds but the DWP may provide information demonstrating receipt of public funds. Before the decision-maker makes a finding of dishonesty he should give the applicant the chance to explain the discrepancy. Or, the decision-maker may even make a finding 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 the decision-maker explains his concerns. However, the decision-maker may have evidence from the country of nationality that the passport was never issued to the applicant, in which case the evidence is incontrovertible and there is no need to provide the applicant with the opportunity to explain in advance of the decision why they have produced a false passport.

Moreover, on the second limb, 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, then that is a serious consequence. Refusal will also expose the applicant to the hostile environment, since they can no longer open a bank account, rent accommodation and so forth. On the other hand, the guidance states that it will rarely be the case that an application for entry clearance reaches the required level of seriousness since in most such cases a refusal will not change the applicant's circumstances. Decision-maker's must also tell the applicant that dishonesty is being alleged and provide him with an opportunity to respond if the refusal relates to public policy grounds based on false representation. The idea that the duty of fairness does not include entry clearance cases, or only does so exceptionally, is fanciful because in practice the Home Office routinely loses and concedes judicial review proceedings brought on the basis of unfairness.

False representation and public policy

Where there is clear evidence of dishonesty or deception but none of the paragraphs on false representation apply (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 on eligibility and public policy grounds. The relevant public policy rules are (i) entry clearance and leave to enter – paragraph 320(19), (ii) visitors – paragraph V3.3, (iii) leave to remain – paragraph 322(5), (iv) armed forces -paragraph AF8(g), and (v) family members (Appendix FM) – paragraphs S-EC.1.5, S-LTR.1.6 and S-ILR.1.8.

By contrast the false representation rules are (i) false representation by applicant or third party in the current application for entry clearance and leave to enter – paragraph 320(7A), (ii) false representation by applicant in a previous application for entry clearance and leave to enter – paragraph 320(7B), (iii) false representation by applicant or third party in the current application for entry clearance and leave to enter – paragraph V3.6, (iv) false representation by applicant in a previous application – paragraph V3.7 read with V3.9(d), (v) false representation by applicant or third party in the current application – paragraph 322(1A), (vi) false representation by applicant or third party in the current armed forces application – paragraph AF9(a), (vii) false representation by applicant or third party in the current family Appendix FM application – paragraphs S-EC.2.2, S-LTR.2.2, and (viii) false representation by applicant in a previous family Appendix FM application – paragraphs S-LTR.4.2 or 4.3.

The T1GMs in the Balajigari cases had declared a different level of income to HMRC for tax purposes in comparison to the figures they provided to the Home Office to show that they satisfied the requirements of the Immigration Rules. Since it was unclear whether the alleged false representations were made to the Home Office or HMRC it was the case that the false representation rules did not apply.

In Balajigari the court held that dishonest conduct was capable of falling within the terms of the public policy provision in paragraph 322(5) if the relevant conduct was serious. Not all dishonesty is sufficiently serious to cross the legal threshold. But the court rejected the idea that dishonest conduct needs to be criminal in order for the threshold to be crossed. All the appellants in Balajigari said that the discrepancies were caused by innocent errors and they claimed that the decisions to the contrary were unlawful. Bearing all that in mind the court held at paragraph 37 that:

We would accept that as a matter of principle dishonest conduct will not always and in every case reach a sufficient level of seriousness, but in the context of an earnings discrepancy case it is very hard to see how the deliberate and dishonest submission of false earnings figures, whether to HMRC or to the Home Office, would not do so.

Keeping this in mind, the Home Office has also clarified in its guidance that subject to the requirement that the dishonest conduct must be serious to invoke public policy grounds, other examples non-exhaustively include (i) fraudulently claiming benefits or otherwise defrauding the benefits system, (ii) providing false details to obtain an official document, such as a driving licence or passport, and (iii) facilitating/participating in a sham marriage would also be likely to meet the threshold. In such cases, Home Office decision-makers should therefore consider both whether there has been a false representation (i.e. be satisfied that dishonesty or deception is involved) and whether the conduct is sufficiently serious. They must assess whether there was incorrect information and whether that was a false representation and what, if anything, was intended or gained as a result.

However, they should not refuse on grounds of public policy if an applicant has made a genuine mistake on an application form or 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.

Mistakes

Mistakes can be distinguished from the above. This is only natural in light of the ratio of AA (Nigeria) and so decision-makers must consider whether an innocent mistake has been made. Thus they must not refuse on grounds of false representation if it is likely that there has been an innocent mistake or because there are minor but immaterial mistakes, such as typographical errors, in the application. But of course an "innocent mistake" can still result in the application being refused for failing to satisfy the specific terms of the Immigration Rules.

In considering whether an innocent mistake was committed, decision-makers in the Home Office should ask (i) how easy would it be to make an innocent mistake (ii) how likely is it that the applicant was unaware of the issue – for example, are they aware the information has been provided or are they aware that the information is incorrect (iii) does the false information benefit the applicant, (iv) is it contradicted by other answers on the visa application form, or by any information in any documents provided with the current or a previous application, (v) does any endorsement or stamp in the passport contradict any answer given, (vi) has a new passport been presented, and if so why, (vii) has the said "innocent mistake" been made on a previous application. Overall, the mandatory grounds for refusal in paragraphs 320(7A) and V3.6 do not warrant refusal where applicants have made innocent mistakes in their applications.

Comment

The fact that the decision in Citizens UK [2018] EWCA Civ 1812, which concerned entry to the UK, informed and steered the outcome in Balajigari makes it hard to reconcile the Home Office's guidance with the law in the sense that the guidance disentitles those who are seeking entry from the scope of the duty of procedural fairness. Of equal concern is the fact that the only concrete change that the Balajigari litigation has brought to the field is that applicants who are suspected of falsifying aspects of their immigration applications will be provided an opportunity to address that allegation prior to a decision being made by giving an applicant a "minded to refuse notification". This procedure will allow those with tax discrepancies to address decision-makers' concerns and they can try to set out why any contradictions in their histories were innocent mistakes rather than dishonesty.

Overall, the Home Office has decided to stick to its guns in these controversial cases and this is not surprising given that decision-makers feel that many applicants tired to get ILR by presenting a skewed picture of their financial affairs. Therefore the Balajigari judgment has not been the panacea that it was supposed to be and we can only expect a lot more litigation in this area because the Home Office is slow to budge in immigration cases and of course they really do seem to have unlimited resources to keep fighting on, come what may. The government cannot be seen to row back from the paragraph 322(5) litigation because doing this will make it look weak in the face of migrants who are trying to game the system to acquire ILR and British citizenship. Of course the Home Office will be right in many cases because some people will have restored to cheating in their applications.

The fight will do doubt continue and it will only get much uglier with time because this is a very controversial topic despite the fact that the T1GM scheme was designed to facilitate highly skilled immigration to the UK. The scheme was a failure from the outset as many of the people seeking to use it were not skilled persons at all and the rules were a loophole for people to exploit to gain long term immigration rights and British citizenship and all the accompanying benefits. People often joke that during the T1GM scheme's early days the Home Office unsuspectingly granted numerous grants to farmers from Punjab who had sold off their tractors to come to the UK to work in warehouse jobs. The irony is that a lot of genuine highly skilled migrants are now being made to suffer for all the government's historical screwups which is all very unfair.