Visitor not genuine – deception?

It often happens that an entry clearance officer (visa application decision-maker) refuses a visitor visa application on the basis that the applicant is not a “genuine” visitor. 

What does this mean exactly? Well, the two things that most commonly come up are (i) that the applicant has not shown sufficiently clearly that they will leave the UK at the end of their visit and (ii) that they have not shown sufficiently clearly that they are genuinely seeking entry for a purpose that is permitted under the visitor rules – say for example to visit friends and family. 

Now of course an applicant can never absolutely prove that they meet these requirements, but they can submit evidence to try and convince the ECO that they do. A migrant can submit documents to support their situation, eg bank statements, salary slips, home ownership documents etc, to show that they have important life to return to in their home country. They can also submit evidence about their family members in their home country, which would also be likely something important to return to. 

But this latter issue can be a double-edged sword: supposing they have very few or no family members in the UK or, to make things worse, but they do have family members in the UK? This sort of situation can be very difficult and can make it very hard to convince the ECO that they will leave the UK at the end of the visit. 

Rules (i) and (ii) as explained above rather work together: if the ECO is not convinced the migrant will return at the end of the visit they typically then go on to say that the they are not coming for a suitable purpose. The ECO might suspect that they are intending to come here and live with their family forever, or perhaps in some cases they might suspect that they are coming to the UK for some other reason, eg to work illegally or to claim asylum. (The latter is a perennial fear for ECOs, and of course with some countries the fear operates much more strongly than others.)

There was an interesting case in this area recently in the Upper Immigration Tribunal called Sanci. Mrs Sanci is a Turkish national and a widow and she applied several times for a visitor visa to visit her family in the UK and it had been refused several times. The last time she applied for Judicial Review before the Upper Tribunal and the case was granted permission to proceed. 

She had been accused by the ECO (in the way described above) of not being a “genuine visitor”. The core issue or question that came up in the hearing was this: is a finding of a migrant not being a genuine visitor effectively a finding of deception by the migrant? We know from long experience that an ECO never says this: they never accuse the migrant of having exercised deception, not in so many words, but the implication might be there. 

This was a very important issue, because if it was indeed the case that she had effectively been accused of deception then she had – under well-established principles of English law – the right to respond and challenge the accusation (the “common law duty of fairness”).

There are different ways of looking at this, and traditionally a finding that a migrant was not a genuine one would not be treated as an allegation of deception in a formal sense. You might say that a refusal decision does not necessarily encapsulate the finding of a dishonest mind, and it might reflect – in some or many cases – the judgement of the ECO that the applicant’s circumstances just did not reach up to the required level to meet the rule. Say for example an applicant was refused because they did not have enough money in the bank to support themselves; this would not necessarily involve any dishonesty in the application. 

But reality is that the Home Office has no compunction in making allegations of deception in connection with “non-genuine” documents and things like that, but in the case of an alleged non-genuine migrant they do not generally do so. One way of looking at this is that it enables them to escape from having to give the applicant a chance to address the accusation.

Anyway, to put it short, the Tribunal decided that in this case it was effectively an allegation of deception and Mrs Sanci thus should have been given the opportunity to address the allegation, but she was not. 

So the Tribunal quashed the decision and it now presumably goes to be re-taken. 

If you have received such a refusal decision you might want to contact us at GSN Immigration for advice. 

Oliver Westmoreland

Senior Immigration Lawyer