In the recent case of Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673 the Court of Appeal ruled that the Home Office unlawfully refused applications because it had not given applicants an opportunity to respond to allegations of deception or dishonesty.

Usually, if the Home Office suspects dishonesty or deception, the decision maker will be required to refuse an application where a false representation has been made in a current immigration application. Where a false representation has been made in a previous application, the application will normally be refused. Applications will also normally be refused on the grounds of public policy were an applicant has made a false representation in a different context, e.g. benefit fraud or tax evasion.

Following the case of Balajigari, the Home Office has introduced a new system of ‘Minded to Refuse notifications’. The new policy guidance states that it applies in current and previous applications, or where the applicant has made a false representation in a different context.

Under the new system, the Home Office must warn the applicant that refusal based on false representations is being considered, setting out exactly what the allegation is and making it clear that dishonesty is suspected. The policy guidance makes it clear that the Home Office must give the applicant a chance to respond to that allegation. However, before the Home Office is under the obligation to give the applicant a ‘Minded to Refuse notification’, two conditions must be met:

  1. the applicant may not necessarily know about the information you have considered or its significance, for example information obtained directly from another Government Department; and
  2. the implications for an applicant of a finding of dishonesty are significant.

For the second condition, the Home Office guidance states that “it will rarely be the case that an application for entry clearance or leave to enter reaches the required level or seriousness because in most cases a refusal will not change the applicant’s circumstances”.

The new process is good news and no doubt will allow many applicants applying for leave to remain in the UK to demonstrate their innocence before receiving a refusal on the grounds of dishonesty or deception. However, those applying for a visa outside the UK, may continue to be informed that they have been dishonest – without being given an opportunity to address that allegation and demonstrate their innocence, because the Home Office will rarely consider that a refusal will change their circumstances.

This article is from the October 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals.