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 [Updated 11 August 2008]
26.4.1 Discretionary grounds [Updated 25 November 2008]
26.5 Biometrics in the decision [Updated 13 January 2009]
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 10 November 2008]
26.9 Service of notice of decision
26.10 Referral to Home Office
26.11 Refusal on grounds of criminal conviction [Updated 11 August 2008]
26.11.1 Refusal on non-conducive grounds 320(6) [Updated 3 November 2008]
26.11.2 Refusal on non-conducive grounds 320(19) [Updated 11 August 2008]
26.12 Witnesses attending trials in the UK
26.13 Release of case notes to solicitors, applicants, sponsors or other third parties
26.14 Representations by applicants or sponsors after refusal
26.15 Refusal where false representations are used, false documents are submitted or material facts are not disclosed (deception) in a (current) entry clearance application
[Updated 11 November 2008]
26.16 Refusal where the applicant has previously breached the UK's immigration laws [Updated 11 December 2008]
26.17 Refusing where the applicant has contrived in a significant way to frustrate the intentions of the immigration rules [Updated 9 July 2008]
26.18 Refusal as a result of IDENT1 checks [Updated 13 January 2009]
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 13 January 2009]
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 [Updated 11 August 2008]
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;
where false representations have been made or false documents submitted, or material facts not disclosed;
where applicant has previously breached the UK’s immigration laws (with the exception of settlement cases and children).
26.4.1 - Discretionary grounds [Updated 25 November 2008]
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;
where the applicant has previously contrived in a significant way to frustrate the intentions of the immigration rules;
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.
However, if an ECO is satisfied that any of the above grounds are not met, they need to also consider if the applicant meet the rules under the category of application. If they do not and you only refuse under paragraph 320 and the appeal is allowed, you cannot then consider the substantive application and the 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 [Updated 13 January 2009]
Entry clearance should not be refused solely on the grounds of an unfavourable biometric match, but it can shape the reasons for refusal. 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 see section VAT2.4 [Updated 10 November 2008]
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 - 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..."
26.11 - Refusal on grounds of criminal conviction [Updated 11 August 2008]
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 would be punishable with imprisonment for a term of 12 months or more if the offence had occurred in the UK,. ECOs should not refuse under 320(18) if the conviction is considered “spent” under the Rehabilitation of Offenders Act (see Annex 26.3). Paragraph 320(18) will not apply where an applicant has been cautioned.
Details of the possible sentence which a particular offence in England and Wales could attract can be found on the Crown Prosecution Service website at:
http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/.
If an ECO cannot adequately determine the possible sentence using this website, or where the applicant was found guilty under Scottish law, the ECO should contact ECO support for assistance.
ECOs should note that the applicant does not have to have received a sentence of more than 12 months, nor to have served a sentence of more than 12 months, but simply that the crime they were convicted of carried a maximum penalty of 12 months or more. Equally, it does not matter if the applicant has a summary conviction. Rather if the offence was indictable, it is the possible sentence that could have been received if tried by a jury that is important. For example, Dangerous Driving is punishable by up to six months imprisonment if dealt with as a summary offence. The sentence rises to a possible 2 years imprisonment on indictment. Thus, the offence attracts the possible application of 320(18) regardless as to the mode of trial at the case in question. However, when considering whether or not the offence is spent, rehabilitation periods are based on actual sentences received (see below).
When determining if a refusal under 320(18) is appropriate, the ECO must also take into account any human rights grounds and ensure that the refusal is both proportionate and reasonable.
If an applicant disputes the content of the Police Certificate, the applicant must contact the Association of Chief Police Officers Criminal Records Office (ACRO). Their contact details are noted at the bottom of the Police Certificate.
Refusal wordings
The ECO must not make reference to the details of the conviction in the refusal notice. The refusal wording must read "…records held in the United Kingdom indicate that you have been convicted of at least one criminal offence that could have carried a custodial sentence of more than 12 months [if that offence had occurred in the United Kingdom]. According to those records, that conviction is not spent…". Where the applicant subsequently request further information regarding why (s)he has been refused, the ECO may disclose to the applicant in writing or verbally any additional information noted on the “Court Certificate for Entry Clearance purposes”.
The ECO must ensure the refusal notice reflects the consideration they have given to the proportionality and the impact of human rights and compassionate considerations. The refusal notice may read "…I have considered the compassionate circumstances of your application [going on to explain what they are, if any]. However, I am not satisfied that they are of a sufficiently compelling nature for me to exercise the powers of discretion granted to me by paragraph 320(18) of the Immigration Rules.
Spent Convictions
The purpose of the Rehabilitation of Offenders Act 1974 (“ROA”) is that people may behave badly at one point in their lives but may nevertheless go on to live law abiding lives. To encourage this process, after a certain period of good behaviour, and provided the offence wasn't too serious, the person is entitled to be treated as a reformed character. The Police Certificate should detail whether or not a conviction is spent. The rehabilitation periods are also set out in ECG Annex 26.3.
26.11.1 Refusal on grounds that exclusion is conducive to the public good - 320(6) [Updated 3 November 2008]
This is a mandatory refusal. Where a non-conducive refusal is appropriate, applications which are high profile, involve national security or are based on sensitive information must be referred to the Home Secretary to consider exclusion rather than being refused under 320(19). Applications must be referred using the HO Referrals process if necessary.
26.11.2 Refusal on non-conducive grounds – 320(19) [Updated 11 August 2008]
Where an applicant's entry to the United Kingdom is not considered to be conducive to the public good because of their character, conduct, associations or criminal history, the ECO should normally refuse under 320(19). The non-conducive powers apply in a broad range of circumstances. Each case must be considered on its individual merits and, as in all other decision making, there must be reasonable grounds for reaching a decision. However, the onus is on us to justify a refusal so there must be sufficiently reliable information to demonstrate, on a balance of probabilities, that a refusal is justified.
In so far as the justification consists of deception or other criminal conduct, the standard of proof will be at the higher end of the spectrum of balance of probability. In addition, the ECO should consider whether the conduct in question would provide a basis for a decision to deport on conducive grounds as it may be difficult to justify a refusal of entry clearance on conducive grounds if the same conduct would not lead to a recommendation for deportation. This should be considered alongside all the other relevant facts (this includes connections with the UK, references, compassionate circumstances, risk of reoffending etc).
The application of 320(19) in the absence of a conviction
There must be sound evidence to support a refusal: allegations, unsubstantiated suspicions and vague generalisations are not sufficient. Equally however, intelligence provided by UK law enforcement agencies or relevant and reliable open-source information may provide a sufficient basis for exclusion; it is not necessary for there to be an actual conviction.
There may be some cases where a caution, or where the police have decided to drop charges (to effect a removal for example), attracts the application of this rule. However, generally speaking, a caution will indicate that the criminal behaviour was not serious enough/the police considered it not in the public interest to prosecute. The ECO will therefore need to take care before refusing entry in the absence of a conviction. He must be able to show (on the basis of good evidence) that the applicant's presence is not conducive to the public good notwithstanding the police/Crown deciding not to go ahead.
Where the applicant subsequently requests further information regarding why (s)he has been refused, the ECO may disclose to the applicant in writing or verbally any additional information noted on the “Court Certificate for Entry Clearance purposes”.
Referring 320(19) cases
All potential non-conducive refusals should be referred to ECO support for advice. Emails should be classified as necessary and marked "POSSIBLE NON-CONDUCIVE REFUSAL UNDER PARAGRAPH 320(19)”
Refusal wordings
The ECO must not make reference to the details of the caution, reprimand, final warning or arrest in the refusal notice. The refusal wording must read "…records held in the United Kingdom indicate that you have been arrested/cautioned in connection with an/x offence(s) and that those cautions remain on police records. I am therefore satisfied that your exclusion to the United Kingdom is conducive to the public good….". 320(19) may extend beyond criminality, in which case the refusal notice must make reference to the reason as to why the applicant is being refused.
The ECO must ensure the refusal notice reflects the consideration they have given to the proportionality and impact of human rights considerations. The refusal notice may read "…I have considered the circumstances of you application [going on to explain what they are, if any]. However, on balance I am I am not satisfied that they are of a sufficiently compelling nature to override my belief that your exclusion to the United Kingdom is conducive to the public good…." for me to exercise the powers of discretion granted to me by paragraph 320(19) of the Immigration Rules.
Other examples of where refusal under 320(19) is appropriate
Other examples of the types of cases where refusal under 320(19) may be appropriate include:
where a person’s admission could adversely affect the conduct of foreign policy;
where the person’s admission would be contrary to internationally agreed travel restrictions (e.g. 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;
the person is a threat to national security (cases will be considered by the Special Cases Directorate);
there is reliable evidence the person has been involved in or otherwise associated with war crimes or crimes against humanity. It is not necessary for them to have been charged or convicted. (Cases will need to be referred to the War Crimes Team in the Special Cases Directorate). Further guidance on this will be issued across the visa operation;
a person's admission might lead to an infringement of UK law or a breach of public order;
a person's admission might lead to an offence being committed by someone else, eg. extreme views that if expressed may result in civil unrest resulting in an infringement of UK law.
When determining if a refusal under 320(19) is warranted the ECO must also take into account any human rights grounds and ensure that the refusal is both proportionate and reasonable.
26.12 - 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.
26.13 - 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.
26.14 - 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.
26.15 - Refusal under 370(7A) [Updated 11 November 2008]
26.15.1 - What is 320(7A)? [Updated 11 November 2008]
Under Paragraph 320(7A) of the immigration rules a person must automatically be refused entry clearance if false representations have been made or false documents or information submitted (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).
26.15.2 - Refusing entry clearance applications under 320(7A) of the Immigration Rules [Updated 11 November 2008]
Standard of proof
You must only refuse applications under 320(7A) if you are satisfied to a high standard that false representations have been made, false documents or information have been submitted, or material facts have not been disclosed. Note that in all cases you must have good evidence to show this.
Refusals under 320(7A) 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 false reps etc were made).
It is for us to prove that an applicant has made false reps etc. 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.
26.15.3 False information was submitted [Updated 11 November 2008]
320(7A) will be changed from 27 November 2008 to allow ECOs to refuse an applicant if false information has been submitted. The purpose of this rule change is to allow an ECO to refuse an applicant if false representations were made to obtain a certificate of sponsorship for a PBS Tier 2 or Tier 5 application.
26.15.4 - 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.
26.15.5 - Discretion to issue if false documents or false representations were used or material facts not disclosed [Update 11 November 2008]
Refusals 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.
26.15.6 - 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.
26.15.7 - 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.
26.15.8 - 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.
26.15.9 - Cancelling a visa if the false reps etc are uncovered after issue [Updated 11 November 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.
26.15.10 - 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.
26.16 - 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
26.16.1 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).
26.16.2 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.
But port removals are only subject to a 1 year ban if the person has fully complied with the terms and conditions placed upon them by the refusing port.
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.
26.16.3 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).
26.16.4 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 26.16.5 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.
26.16.5 The 17 March concession and establishing voluntary departure [Updated 6 October 2008]
The concession only applies to voluntary departures. An applicant must have left the UK by 1 October 2008 to benefit from this concession unless their departure has been delayed through no fault of their own e.g. delays in UKBA obtaining their document or flight delays. This concession 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.
26.16.6 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.
26.16.7 Refusals under 320(7B) where false documents, false information or false representations were used in a previous application [Updated 11 November 2008]
If an applicant has previously been refused entry clearance because a false document or false information were submitted 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).
26.16.8 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.
26.16.9 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.
26.16.10 EEA family permits and 320(7A) and 320(7B) [Updated]
Please read 26.16.7 above.
26.16.11 What is the process for refusing an applicant under paragraph 320(7B)?
Please read 26.16.8 above
26.16.12 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.
26.16.13 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.
26.16.14 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.
26.16.15 - 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]
26.16.16 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.
26.16.17 320(7B) and students refused LTR after 1 September 2007 [Updated 6 October 2008]
Following the student Rule changes of 1 September 2007, a number of applicants were refused leave to remain as a student solely on the basis of applying out of time. This policy changed following the introduction of a concession on 27 December 2007. From that date onwards, applications for leave to remain have been considered on their merits and not refused solely on the basis of applying out of time. Therefore, an applicant should not be refused under 320(7B) for previously overstaying in the UK if they were refused leave to remain as a student solely on the basis that they had made an out of time application. It is possible that some applicants may have been erroneously refused leave to remain on the basis of applying out of time, even following the introduction of the concession on 27 December 2007. ECOs should be mindful of this and exercise discretion accordingly in such cases.
26.16.18 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).
26.16.19 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.
26.16.20 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 Refusing where the applicant has contrived in a significant way to frustrate the intentions of the immigration rules [Updated 9 July 2008]
26.17.1 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).
26.17.2 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.
26.17.3 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.
26.17.4 Refusal wordings
26.18 Refusal as a result of IDENT1 checks [Updatd 11 August 2008]
26.18.1 IDENT1 and the PNC
IDENT1 is the UK police database used for holding biometric data from those who have been arrested, charged, cautioned or convicted of an offence. As part of the visa application process, an applicant’s prints will be automatically compared against IDENT1. Post will receive the results within 30 minutes. IDENT1 does not contain any information about why the fingerprints of the individual were taken. This information is held on the Police National Computer (PNC). IDENT1 attaches a Criminal Records Office (CRO) number to each record, which can be used to obtain further details from the PNC. The Association of Chief Police Officers (ACPO) will conduct checks on behalf of Posts. All information held on the PNC is Restricted, and the Police remain the data owners at all times.
26.18.2 Interpreting the results of IDENT1 checks
The results of the initial check against IDENT1 will be returned to Post via Proviso. Proviso will show whether or not there has been a match on either IAFS and/or IDENT1. If there is a match on any system, Proviso will read "check - match found" in the events screen. If there are no matches on any system, Proviso will read "checks - no matches found".
Where a match has been found, Proviso will not detail against which system the match(es) have been identified. The ECO must click on "view matches", which will then launch VIMA.
Where a possible match against IDENT1 has been identified, VIMA will display one of two messages:
(a) Match: The automated matching process has identified a match. VIMA will also display the CRO reference number and the Globally Unique ID (GUID). The GUID is assigned by UKBAIG systems to uniquely identify an application as it progresses through the visa application process. The ECO must check the confidential email account to establish the information behind this match. The confidential email will contain the CRO number and GUID in the subject title, and provide a PDF file containing a “Police Certificate for Entry Clearance Purposes”. It may also disclose additional information which is “Restricted” and is for the attention of the ECO (or his line management chain) only.
The email will only be sent once the fingerprint match has been manually verified and confirmed by the Immigration Fingerprint Bureau. In the majority of cases, the email will list the entries on the PNC that can be taken in to account when determining the visa application. However, where the information is sensitive (e.g. where it relates to a witness protection programme) and the Police have determined it cannot be disseminated to Post, or where the match transpired to be a false positive, the email will instruct the ECO to determine the application on the evidence before them. In these cases, the earlier indication of a match on IDENT1 must not be taken in to account when making the decision.
(b) Further Investigation: In some instances the automated matching process will identify a number of prints held on IDENT1 that could possibly match those taken in connection with the visa application, or will yield matches of “low confidence”. The ECO will still need to check the confidential email account for details of the match. Again, the email will either contain details of the match, or request the ECO to determine the application on the evidence before them. The only difference is that VIMA will not always display a CRO number and therefore, the email will be identified by the GUID in the title line, which will be used to link the email to the associated case.
(c) No Match: Where there is no match against IDENT1, VIMA will display "no match."
26.18.3 Storage and disposal of the data
The Police Certificate or extracts from the Police Certificate must be treated as restricted and must not be forwarded to a UBS account. If a print out of the Police Certificate or information from the Police Certificate is kept on file, the file must also be treated as restricted. The Police Certificate must be securely destroyed in line with current procedures for destroying restricted material. The files containing any information from the Police Certificate can be stored for a maximum of two years provided that the case remains live. This applies to both electronic records and hard copies.
Notes on Proviso must not make reference to the detail of a PNC trace, but must contain the CRO and GUID linked to the IDENT1 match. So ECOs need to copy the CRO/GUID reference from VIMA into the notes field on Proviso in the event that the data needs to be re-requested.
The Police Certificate or the file containing information from the Police Certificate must be stored on the premises of the British High Commission or British Embassy. Where storage facilities have been outsourced, the Police Certificate or the file containing information from the Police Certificate must not be stored with the outsourcing partner.
26.18.4 Refusals on the basis of the IDENT1 check
The ECO must decide whether an applicant should be refused on the basis of the information from the IDENT1 check. The ECO will need to consider if it is appropriate to refuse the applicant under the following paragraphs of the immigration rules:
• Criminality - 320(3)
An ECO cannot refuse an applicant on the grounds that they are not sure of the applicant’s identity or nationality simply because he has used previous identities in the United Kingdom, even when he has been convicted under a different identity. However, evidence of identity swapping will clearly trigger close examination of the travel document and supporting documents provided for the EC application. The identity swap will also be relevant to the applicant’s credibility.
• Non-conducive to the public good – 320(6) and 320(19)
ECG 26.12.1 contains further guidance about refusing under paragraph 320(6) (authority of the Secretary of State).
ECG 26.12.2 contains further guidance about using 320(19) in the absence of a criminal conviction, what can and cannot be included in the refusal notice and subsequent explanatory statements and what to do if an applicant asks for more information about why he has been refused. ECG 26 Annex 2 contains details of the refusal wordings on non-conducive grounds.
• Criminal convictions – 320(18)
ECG 26.12 contains further information about refusing under 320(18) including multiple offences, spent convictions, Rehabilitation of Offenders Act, what you can and cannot include in the refusal notice and subsequent explanatory statements and what to do if an applicant asks for more information about why he has been refused. ECG 26 Annex 2 contains details of the refusal wordings for criminal convictions.
• Failure to disclose criminality – 320(7A) (7B)
An applicant can be refused under 320(7A) if they fail to disclose a criminal conviction that is not spent. If an applicant failed to disclose a criminal conviction in a previous leave to enter, remain or visa application, they can be refused under 320(7B). ECG 26.16–18 contains further details about refusing under 320(7A) and 320(7B).
• Contrived in a significant way to frustrate the rules – 320(11)
An applicant can be refused under 320(11) where he has “previously contrived in a significant way to frustrate the intention of these Rules”. This includes criminal activity in the UK. ECG 26.19 contains further guidance on the use of 320(11).
• Cautions, reprimands and final warnings
Cautions, reprimands and final warnings are not criminal convictions and so are not dealt with by the Rehabilitation of Offenders Act, (although this will change later in the year at which point further guidance will be issued). So if applicants that have only been cautioned, reprimanded or given final warnings and are asked whether they have any 'criminal convictions' they can legitimately answer 'no'.
26.18.5 Credibility refusals
An ECO must not refuse an applicant because of their criminal record if the conviction is spent. Failure to declare an unspent conviction may cast doubt on the applicant's truthfulness. Concealment of information or lack of frankness in any matter may raise doubt about the reliability of information supplied by the applicant elsewhere in the application.
However, it may be appropriate to consider refusing an applicant where the record on the PNC conflicts with the account provided on the VAF. For example, an applicant claims on the VAF to have never visited the UK before, but the PNC record shows he was arrested in the UK in 2004. Refusal on credibility grounds for non-PBS cases, where linked to a specific rule or refusal. Refusal under paragraph 320(7A) for PBS and non-PBS applications, for making a false statement on a VAF, may be appropriate.
Refusal wordings
For instance: “You stated on your application form/during interview that …[you have never been to the UK before]. You signed your application form on [date] to confirm this was correct. However, records held by the UK police indicate that you were in the UK on [date]. Failing to declare your immigration history [include paragraph 320(7A) wording] undermines the credibility of the whole application. [As a result of this the Entry Clearance Officer] cannot be satisfied of your intentions.”
26.18.6 Appeals [Updated 13 Janaury 2009]
If an applicant appeals, the ECO may write fuller reasons for refusal on the explanatory statement, based on the content of the “Police Certificate”. The Explanatory Statement should include the details behind any refusal, including date of arrest, offence and what happened (eg, arrested, charged, convicted and so on). Where a prosecution was not sought because the applicant was removed, this should also be noted. This is most likely to occur in the event of an immigration offence being committed.
The ECO must also notify Visa Services Directorate of the appeal, via the dedicated in-box IDENT1(Appeals) at the earliest opportunity. The email must state the GUID and CRO number in the subject line. The main body of the email must include a date by which a response is required. VSD will then contact IFB for a witness statement concerning the verification of the two sets of fingerprints.
The appeal bundle must therefore include:
1. Court Certificate
2. IFB witness statement
3. Expanded ES where appropriate
26.18.7 Questions on the results of a PNC match
If Posts have any questions or general enquiries about a PNC match, they can contact ECO support. E-mails containing details about an individual case must be sent using the CONFIDENTIAL tier.
Originally Posted by mastergidd
but might come handy sometime...
