Duty of disclosure in immigration applications and interviews
Produced in partnership with Sadat Sayeed and Maha Sardar of Garden Court Chambers
Duty of disclosure in immigration applications and interviews

The following Immigration guidance note Produced in partnership with Sadat Sayeed and Maha Sardar of Garden Court Chambers provides comprehensive and up to date legal information covering:

  • Duty of disclosure in immigration applications and interviews
  • Background legal structure: key implications of deception by omission
  • Failure to disclose a material fact in an application
  • Illegal entry and deception offences
  • Practical considerations for advisers assisting with immigration applications

The question of the extent of any positive duty of disclosure is a fundamental consideration for applicants and immigration advisers alike. The issue came to the foreground with the substantial revision of the general grounds for refusal regime in 2008, which introduced into the Immigration Rules a number of additional grounds for mandatory refusal (including on deception grounds) and a linked sliding scale of re-entry bans.

This Practice Note looks at the extent of the duty of disclosure, whether in an immigration application form or interview, where there are no relevant questions asked by the Home Office. In circumstances where there are one or more aspects of the applicant’s immigration history or otherwise which, if known to the Home Office, could lead to the refusal of the application or the cancellation or curtailment of their existing leave, what is the extent of a deception by omission, or silence? The Practice Note also looks at the relevant duties imposed on legal advisers and the consequences of any breach.

This troubling question was the subject of extensive litigation in the 1970s and 1980s regarding the definition of an 'illegal entrant' introduced in the Immigration Act 1971 (IA 1971), culminating in the leading House of Lords decision in Khawaja v Secretary of State for the Home Department (SSHD). Khawaja held that there was no positive duty

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