False immigration documents

17 September 2019

"False document" has a nasty sound to it. When the Home Office categorises a document submitted with an immigration application as "false" they mean that they think that it was fake or otherwise dishonest.

It is entirely possible that an innocent applicant can submit a false document with an immigration application without being aware of it. And in such a situation the applicant may be accused by the Home Office of having personally acted dishonestly and they are saddled with the consequences, which can be severe: for example, a ten-year visa ban.

In such a situation it might well be appropriate for the applicant to challenge the decision and try and clear their name.

But the relevant immigration rules do at least envisage the possibility that an applicant may not have been complicit in the dishonesty:

An application will be refused if: "false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge)……".

So what might we expect to happen to an applicant who has submitted a false document, but the Home Office accepts that they did not themselves act dishonestly? Can the law usefully assist such a person?

This was a subject recently analysed by the Court of Appeal in a case called "Hameed". Mr Hameed, a Pakistani national, wanted to switch in the UK from a Tier 4 Student visa to a Tier 2 Skilled Worker visa.

We do not know the complete ins and outs of this but it evidently somehow came about that Mr Hameed had submitted a false document with his Tier 2 visa application. Or was it really a document? Well, the document in question was a Certificate of Sponsorship (COS), which is commonly described as a "virtual document" - ie it exists most essentially as a database record. But it can be printed out and will thus take the form of a hardcopy document.

In any event, crucially importantly for Mr Hameed, the Home Office had eventually come to accept that he had not himself done anything dishonest: the dishonesty was deemed to have been done by somebody else. This is a murky area, but it appears that the COS he submitted was not a real one and its unique reference number was not real either. This is remarkable because of course such a visa application could not possibly have succeeded but these are the facts related by the court.

Mr Hameed had applied for administrative review of the visa refusal decision. The administrative reviewer had not overturned the decision but they had at least exonerated him of any dishonesty.

But he still felt hard done by, and he wanted to get the entire refusal decision overturned, and his case got as far as the Court of Appeal.

This was surely a rather confusing case because it was difficult to see how the court could really help him. Mr Hameed’s lawyer tried to argue that the COS was not really a "document" but - not surprisingly perhaps - the court did not accept this argument. The COS was definitely either a "document" or a "representation", so this did not work.

But this is not to say that the court was entirely unsympathetic to him. As they put it: "He was as much a victim as the system from the actions of a third party."

But the court also pointed out a cold and hard reality: "… the argument about the falsity of the document or representation is irrelevant to the outcome of the decision and academic in the sense that without a genuine CoS an applicant cannot obtain the points needed to succeed in the application."

And, as they also put it: "There is no longer a wrong to be remedied."

As is so often the case, the courts can provide justice but the structure of the law does not allow them to provide what might be regarded as complete justice.

So Mr Hameed was unsuccessful and he was still left with the visa refusal decision, albeit without a stain on his character.

To state the obvious, you should be very careful about who you work with in the preparation of your immigration application. And if you are accused by the Home Office of deception you should seek competent legal advice.

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