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Escaping the Tyranny of Paragraph 320 (19 April 2010)

Date: 19/04/2010
Duncan Lewis, Immigration Solicitors, Escaping the Tyranny of Paragraph 320

On the 1st April 2008, a Statement of Changes in the Immigration Rules came into force amending the general grounds for refusal of an application for Leave to Enter or Entry Clearance. The draconian reach of the new mandatory grounds for refusal has been subject to widespread criticism.

False Representations


Paragraph 320 (7A) sets out the following provision as a mandatory ground for refusal:

Where 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), or material facts have not been disclosed, in relation to the application.



At first sight, the wording of this sub paragraph allows little room for the role of human error which experienced practitioners all too often find in Visa application forms completed summarily and without close attention to detail. (Indeed these forms are frequently in a language the Applicant overseas has little or no understanding of.)

Firstly, the materiality of the alleged false representation is apparently irrelevant for the engagement of the sub paragraph. For example, an Applicant seeking to visit family in the United Kingdom, who wrongly stated that her son would pay for her flight, when in fact the money was being sent by her cousin, could be found to have made a false representation under the subparagraph. However, under paragraph 41 of the Immigration Rules relating to family visits, there is no requirement for the Applicant to rely upon any specific relative to pay the costs of their trip to the United Kingdom. Therefore, the person who is paying for her trip is irrelevant to the substantive requirements of the rules.

Similarly, that the alleged false representation occurred as a result of mistaken belief on the part of the Applicant, or their relative, also appears to have no bearing upon the application of the subparagraph as the Applicant’s knowledge or lack of knowledge is also immaterial.

So what then are the avenues to challenge reliance by an Entry Clearance Officer (ECO) under subsection 320 (7A)?

In March 2008, ILPA sought clarification on what constituted a false representation from Liam Byrne MP and Minister for the Home Department. In a letter dated the 4th April 2008, he stated as follows:

We have published guidance to Entry Clearance Officers in Chapter 26 of the Entry Clearance Guidance which I believe deals with this point. The new rules are intended to cover people who tell lies either on their own behalf or on behalf of someone else – in an application to the UK Borders Agency. They are not intended to catch those who make innocent mistakes in their applications......

Unfortunately, however Chapter 26 of the Entry Clearance Guidance dated December 2009 fails to explain the distinction between a mistake and a false representation, unhelpfully finding as follows in respect of 320 (7A):

A false representation for these purposes is a lie, or a false statement in a visa application, made either orally or in writing.

It seems sensible to counter reliance on 320 (7A) by an ECO with several layers of argument (as far as the facts enable a representative to do so).

In the first instance, it can be argued that, relying on Byrne’s Ministerial Concession that innocent mistakes will not be caught by sub paragraph (7A), the Applicant’s response in the Application form as to who would fund her trip should not engage the subparagraph. While the statement was false, it is not a “representation” for the purposes of 320 (7A). Instead it should properly be described as a mistake.

However, in the face of the stark wording of the actual text of sub paragraph (7A), this would be at best a first line of defence and it would not be wise to rely upon this alone.

At this point, reliance can be placed on the ECHR. Whilst materiality may not be relevant for the purposes of the Immigration Rules, this is not the case for Article 8. If the Applicant is seeking to visit the United Kingdom to see family member, then it can be argued that there would be interference with the Applicant’s right to family life by refusing her the opportunity to visit. It can then be submitted that, given the issue of who paid for her flight would be irrelevant to the Application, reliance on 320 (7A) would be disproportionate to the legitimate aims of Immigration Control.

Finally, even if the Applicant intentionally rather than accidentally made a false representation, which was found to be material, the Tribunal would still need to consider the grave consequences which could follow from a finding by an ECO that she had exercised deception. Under paragraph 320 (7B), this will result in a ten year bar on applying for entry clearance. This will be a highly relevant consideration for the degree of interference with family life which is likely to follow from the refusal, and the proportionality of that interference. An assessment of proportionality will require consideration of the ability and likelihood of the relative settled in the UK visiting the Applicant overseas, as well as the exact nature of the false representation and its magnitude.

In some respects reliance of an ECO on subparagraph 320 alone - especially where one of the time bars of re – entry will apply as set out in 320 (7B) - could provide the necessary weight to tip the balance of proportionality in favour of the Applicant for the purposes of Article 8.

At paragraph 45 of Chikwamba (UKHL) Lord Brown observed:

Your Lordships have been made aware too of recent changes to the immigration rules which appear to involve substantial mandatory periods of exclusion following refusal of entry clearance or leave to enter in respect of those who have entered illegally or overstayed. Inevitably these changes will have an impact on the future application of the policy in article 8 family cases.

While the exemptions to the operation of 320 (7B) are set out in 320 (7C) to protect applications for settlement made by spouses, civil partners and dependents from the time barriers to new applications for entry clearance, Article 8 is certainly capable of being a live issue in non settlement cases, such as spouses applying to join those with limited leave to remain under a work permit, or family visits as discussed above. As always each case requires consideration on its own facts.

Non Disclosure


The second limb of Section 320 (7A) relates to non disclosure of material facts. For example, an ECO may rely on this where a visitor seeking entry clearance from country X, who has never travelled abroad before (except for a two week holiday in neighbouring Y a couple of years ago) ticks “NO” to the question: Have you travelled outside your country of residence excluding to the UK in the last 10 years, and then leaves the ancillary questions of where and for how long unanswered.

It appears that materiality is the only consideration in respect of non disclosure (as opposed to a false representation). It is therefore arguable that even if a person knowingly failed to disclose a matter immaterial to their application, they would not fall within the remit of this rule. It would however be necessary to make representations that the non disclosure occurred as a result of an honest mistake (if that was in fact the case) given the consequences of a finding of deception.

The litmus test of materiality (endorsed by the IDIs) can be contained in the following question: If the Applicant had disclosed the given fact, would this have led to the Application being refused? If the answer to that question is no, then the non disclosure does not appertain to a material fact.

In the abo


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