After evolving case law in the area, the answer today is, yes. Procedural fairness requires that an applicant for entry clearance, facing a mandatory refusal based on alleged deception, should be given notice of the allegation.
The position has been clear for quite some time with respect to in-country applicants. However, in practice, the Home Office opposed the idea of providing notice of an intended refusal based on deception to overseas applicants.
The Court of Appeal in the case of Balajigari v Home Secretary [2019] EWCA Civ 673 found that in certain cases where an application is to be refused, or permission cancelled, based on false representations, etc. the applicant must be given an opportunity to address that allegation of deception before a decision is made. The Home Office approach was to distinguish the case on its facts as it concerned in-country applications.
The Court of Appeal in Wahid, R (on the application of) v Entry Clearance Officer [2021] EWCA Civ 346 found that it is arguable that, where an ECO [Entry Clearance Officer] harbours suspicions of dishonesty, procedural fairness requires the applicant to have the opportunity to respond.
Most recently, in R (on the application of Kaur) v Entry Clearance Officer (New Delhi) (ECO allegation of deception; fairness) [2026] UKUT 00080 (IAC), Judge Blundell sitting in the Upper Tribunal reviewed various authorities on procedural fairness and concluded: the duty to act fairly requires that an entry clearance applicant who is accused of deception for reasons she could not reasonably have been expected to know about, and who would face mandatory refusal of future applications on account of a finding of deception, should generally be given notice of that allegation and an opportunity to respond to it before her application is decided.
The case of Kaur concerned an applicant who was assisted by a local consultant in India in applying for a visit visa. A bank statement submitted with the application was deemed to be false, resulting in the applicant being banned from entering the UK for ten years based on alleged deception.
An opportunity to address an allegation of deception is crucial particularly for overseas applicants in situations like the facts of Kaur. For immigration practitioners, it is not uncommon to be contacted by someone who relied on a local consultant to assist with their entry clearance application, resulting in crucial information such as previous refusals or overstaying being undeclared. Often such individuals report not being given an opportunity to review their applications. In such circumstances, where the applicant is not deceptive and has no way of knowing of the potential deception, an opportunity to respond to an allegation of deception is key. This is particularly when it can lead to a mandatory 10-year ban impacting both future travel and work plans as well as an applicant’s immigration as a whole.
It is important to note that whilst procedural fairness may provide an overseas applicant an opportunity to provide their version of events when faced with an allegation of deception, some key considerations remain. For example, the applicant’s knowledge of whether they or a third party on their behalf, engaged in alleged deception, is not relevant. It is therefore important for applicants to remain attentive and involved in preparing immigration applications, ensuring to provide correct and complete information as a part of any application. Whilst an opportunity to address an allegation of deception remains welcomed, it continues to be the responsibility of an applicant to ensure that their immigration application contains correct information. In the ideal scenario, a well prepared immigration application should be the starting point as opposed to the hope of being provided with an opportunity to address alleged deception.
If you require assistance in preparing an immigration application or would like to discuss complexities in your immigration history, our team of experts is available to help.
