Visa Application: Innocent Mistakes

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
13 June 2014

Mistakes on application form can be disastrous. If the mistake is interpreted by officials as an attempt to mislead or deceive, the application must be refused. If the application is for an entry clearance, it will also lead to a 10 year ban on re-entry.

Given the length of time, one has to remember that the ECO needs to be satisfied that deception has been employed and or that the applicant intended to deceive the ECO. The majority of cases where this requires the ECO’s judgement will relate to how an applicant has completed the VAF, Form, most usually in relation to questions about previous visas refusals or the grant or refusal of leave to remain. A prime example of this is where an applicant ticks the wrong box on the VAF in answer to the question “Have you previously been refused a visa”? If the applicant has ticked that they have not previously been refused a UK visa but has presented a passport containing a refusal stamp and or previous refusal notice, this should not be considered to be deception and therefore paragraph 320(7)A should not apply.

The most recent case is the case of Shen [2014] which is an example of an applicant with a driving conviction who ticked the no box to the question about previous convictions, standard on all immigration application forms. Even the Home Office policy guidance recognises that mandatory refusal is not necessarily justified on such facts. In this case the applicant’s evidence was that she did not realise she had been convicted because she had not received any further communication from the police about her case. What we have learned from this case is that if an application form is false in a material way, this may be relied upon as some prima facie evidence which assists in establishing dishonesty. The inference of deliberate deception can be strengthened by reference to other facts, for example if the conviction is shortly prior in time to the completion of the application form. However, this is not positive of dishonesty and it is open to an appellant to provide an innocent explanation. If an innocent explanation is advanced, ie., the one that meets the minimum level of plausibility, then the burden switches back to the Secretary of State to answer that evidence. At the end of the day the Secretary of State bears the burden of proof. This is a proposition which is uncontroversial.

The second recent deception case is R –v- Secretary of State for the Home Department [2014]. In this case the police said a student was thought to have used false documents in 2006 and was initially refused entry. Later in 2006 he reapplied, admitted in interview that documents were false and was admitted. He extended his leave in a series of applications and no point was ever taken about the previous use of deception. However, for some reason in 2011 the Home Office decided to refuse his latest application because of that historic deception. This was justified on the basis of failure to declare the previous deception. The applicant challenged the decision by way of an application for Judicial Review which the Judge, Mr Justice Robert Jay, concluded that the decision was not Wednesbury unreasonable. Although the Judge was inclined to accept the applicant’s submissions the judgement ends with a suggestion that although the Judicial Review application must fail, a more senior official at the Home Office should look at the case given the Home Office acquiesced to entry in 2006 in the full knowledge of the deception.