Tribunal decisions

The decision

Case No: JR-2025-LON-002856
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

31 July 2026

Before:

UPPER TRIBUNAL JUDGE BULPITT

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Between:

THE KING
on the application of
OSMAN SHUTI
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr T Wilding
(instructed by A J Jones Solicitors), for the applicant

Mr J Gajjar
(instructed by the Government Legal Department) for the respondent

Hearing date: 18 June 2026

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J U D G M E N T

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Judge Bulpitt:
1. The applicant brings judicial review proceedings in connection with the respondent’s decision on 28 May 2025 to refuse his application for entry clearance as a visitor. The applicant argues that the decision involved an unlawful or irrational finding that the applicant used deception in an earlier application for a visit visa. The respondent argues that this finding was one that was she was rationally and reasonably entitled to reach.

Background
2. The applicant is an 83 year old Albanian citizen who lives in Durres, Albania. His son Rifat Shufti has been granted leave to remain in the United Kingdom and he lives in Kent together with his wife and two children (the applicant’s grandchildren) who are aged 9 and 6 and who are British citizens.
3. Between March 2002 and December 2007 the applicant successfully applied for entry clearance to visit the United Kingdom on five occasions. For three of those applications Rifat Shufti was named as the sponsor of the visit. On each occasion the applicant visited the United Kingdom before returning to Albania in accordance with the visa that had been granted.

The 2008 Decision
4. In September 2008 the applicant made an application for entry clearance to visit the United Kingdom. As part of the application he submitted a Standard Acknowledgement Letter (SAL) which had been issued to Rifat Shufti. Although that document was a genuine letter issued by the Home Office, it contained the false information that Rifat was born in Kosovo. The applicant additionally submitted an Albanian family certificate which recorded that in fact Rifat Shufti was born in Albania.
5. The respondent refused the application on 29 September 2008 (“the 2008 decision”), finding that the SAL was a false document and, referring to paragraph 320(7A) of the Immigration Rules (which applied at that time), concluding that the application fell for refusal on the grounds of suitability because the applicant had used deception. The applicant did not appeal against that decision.

The 2010 Decision
6. In December 2010 the applicant made another application for entry clearance to visit his son in the United Kingdom. In that application he acknowledged that he had been refused a visa in 2008. The respondent refused that application on 13 December 2010 (“the 2010 decision”) finding that it fell for mandatory refusal applying paragraph 320(7B) of the Immigration Rules because the applicant had used deception in the 2008 application. Although there was the right to appeal against this decision, the applicant did not exercise that right.

The 2019 Decision
7. On 21 November 2019 the applicant made a new application for entry clearance to visit his son and grandchildren in the United Kingdom (“the 2019 application”). One of the questions in the application was:

“For either the United Kingdom or any other country, have you ever been: refused a visa”
the answer provided was:

“No”.
8. The respondent refused the application in a decision dated 15 December 2019 (“the 2019 decision”) which included the following:

You were refused a visit visa to the UK on 29/09/2008 (VAF/65585) and 13/12/2010 (VAF/79175) under the passport number [XXX], for the submission of a false document. You submitted an SAL document issued by the Home Office, which showed your son (Rifat Shufti date of birth 10/08/1983) was born in Kosovo. However, you also submitted an Albanian family document which showed your son was born in Branoge, Kukes, Albania. The information submitted in your current application does not explain this and you have submitted an Albanian family document providing the same details.

In your application, you state that you have never been refused a visa for any country including the UK. However Home Office records show that you previously made UK visa applications on 29/09/2008 (VAF/65585) and 13/12/2010 (VAF/79175), under the passport number [XXX} which were subsequently refused.

I am satisfied that you were given numerous opportunities to disclose relevant information about your previous applications. The fact that you chose to omit such information undermines your credibility and I am not prepared to exercise discretion in your favour. I am satisfied that you have made false representations and failed to disclose material facts in support of your application and have therefore used deception. I am satisfied that your application should therefore be refused under paragraph V3.6 of Appendix V of the Immigration Rules.

You should note that because this application for entry clearance has been refused under paragraph V3.6 of the Immigration Rules, any future applications may also be refused for the same reason, under paragraph 320(7B) of the Immigration Rules or paragraph V3.7 of Appendix V of the Immigration Rules.
9. The applicant did not challenge this decision.

The 2023 Decision
10. On 9 June 2023 the applicant made another application for entry clearance to visit his son and grandchildren (“the 2023 application”). This time when asked whether he had been refused a visa the answer provided was “yes”, and the applicant provided details of the refusals in 2008, 2010 and 2019. The application was accompanied by written submissions prepared by the applicant’s solicitors in which they said that the applicant had misunderstood the question about previous refusals when making the 2019 application and did not understand he had to disclose the three refusals of the previous UK entry clearance applications in his application.
11. The respondent refused the application on 6 July 2023 (“the 2023 decision”) applying paragraph 9.8.1 of the Immigration Rules which had by this time replaced paragraph 320. The sole reason given for the decision was that the applicant used deception in the 2019 application and therefore any application made before December 2029 fell for mandatory refusal.
12. The applicant sent three separate letters before action to the respondent questioning the 2023 decision. In those letters, it was said that applicant had been assisted by an agent when submitting the 2019 application and the agent had not asked the applicant if he had been refused visas for the United Kingdom. In response, the respondent maintained the decision stating that refusal was mandatory where there had been the use of deception in the previous ten years.
13. Despite the letters before action, no legal challenge to the 2023 decision was brought.

The challenged decision
14. On 18 January 2024 the applicant made his latest application for leave to enter the United Kingdom as a visitor, which has led to these proceedings (“the 2024 application”). The application referred to the refusals of visit visas in 2008, 2010, 2019 and 2023. The application was again accompanied by written submissions. Those submissions argued that the failure to disclose the previous refusals of visas in the 2019 application was the result of a mistake on the part of the agent who completed the application, and not a false representation by the applicant for the purpose of an immigration advantage. In those circumstances it was argued that the imposition of a ten year ban because of the use of deception was irrational.
15. The respondent refused the applicant’s application in February 2024 but withdrew that decision after the applicant applied for permission to bring judicial review proceedings. A second decision made in January 2025 was also withdrawn after the applicant sent a letter before action. Finally on 28 May 2025 the respondent issued the decision which the applicant now challenges by way of judicial review (“the challenged decision”).
16. The reasons for the challenged decision are set out in a series of bullet points under the heading “the decision.” In the first bullet point reference is made to the 2019 decision and the finding of the use of deception in that decision. The basis of the application and documents submitted are summarised in the second bullet point. The decision is then explained by reference to the written submissions that accompanied the application in the third – seventh bullet points which I set out in full below having added numbering to those paragraphs for ease of reference:

i. In this application, your representatives state that the inclusion of the SAL document issued by the Home Office was not a false document as defined and give the submission of the Albanian family certificate cannot be said to have been an intention to deceive. However, I note that the information between the SAL document submitted, and the Family Registration Document submitted still showed discrepancies between them both, meaning that at least one of these documents was showing false information. I also acknowledge that you have since your son’s birth certificate to further clarify this information. However, this document was not provided with your application in 2019 and does little to clarify the information submitted with the application in which deception was initially used.

ii. I also note that that your representatives have stated that “The failure to disclose previous visa refusals can in no way be attributed to a deliberate intention to mislead or deceive as it was simply an error on the part of the agent”, regarding the omission of your previous Entry Clearance Refusals from 2008 and 2010. However, I note that in your application submitted on 05/12/2019 (VAF 1655110) you agreed to the following declarations upon submitting your application:
• “I am the applicant aged 18 or over”
• “By sending this application, you confirm that to the best of your knowledge and belief the following is correct: the information relating to this application and the supporting evidence”
• I understand that if false information is given, the application can be refused and I may be prosecuted, and, if I am the applicant, I may be banned from the UK”

iii. I also note that all of the statements and information submitted on your application are written in the first person, for example “I would be pleased to be granted a visa and visit my son and his family together”. None of the information or documents provided with this application indicate or demonstrate that an agent or third party was used to assist with submitting the application. I also acknowledge that your representatives have stated that “the email address associated with the application of 04 December 2019 indicates that the applicant did not complete the application himself” However, whilst I note that the e-mail address used on that application does not appear to contain your name, this alone does little to demonstrate that this would indicate a third party assisted with the application.

iv. I have considered these submissions from your representatives, but I am satisfied, on balance, that it does not demonstrate that you did not previously employ deception. I have reached this conclusion because omitting your previous Entry Clearance Refusals on an application appears to be an attempt to mask that you have previously been refused entry clearance for the UK. I also acknowledge that your representatives have stated that you had declared these refusals on previous applications, however this does not change that they appear to have been deliberately omitted from this application in question.

v. I am not therefore satisfied that this information, including omitting your previous Entry Clearance Refusals, was submitting by yourself and your explanation is therefore not satisfactory to overturn a 10-year ban.

The Grant of permission
17. The applicant was granted permission to bring Judicial review proceedings by Upper Tribunal Judge Ruddick on two grounds although ultimately only the first was pursued before me. That ground averred that the finding that the applicant used deception in the 2019 application (and therefore the 2024 application fell to be refused for reason of previous deception), was unlawful and / or irrational. When granting permission Judge Ruddick noted that in pre-action correspondence the respondent had confirmed that the 2019 application was not refused because of the false SAL that had been submitted in 2008.

The Issue and application to adduce further evidence
18. The applicant pursues the single ground of review on three bases:

a. The respondent unlawfully and irrationally found that A had used deception in the 2019 application;
b. The respondent further acted in a procedurally unfair way by failing to adopt the minded to refuse process before making the challenged decision; and
c. In refusing the application, the respondent reversed the burden of proof.
19. The applicant has additionally made an application to adduce further evidence relating to the 2019 application which he says is necessary to reply to the respondent’s detailed grounds of defence which it is argued “moved the target” in the case. At the hearing it was agreed that I should hear all the arguments de bene esse and decide this application when resolving the substantive challenge to the challenged decision.

The Legal Framework
20. Applications for visas to visit the United Kingdom are considered applying the respondent’s Immigration Rules which in accordance with section 3(2) Immigration Act 1971 identify the practice to be followed for regulating the entry into and stay in the United Kingdom of people requiring leave to enter under the 1971 Act. There is no dispute that as an Albanian citizen the applicant is such a person.
21. As permitted by section 3(2) of the Immigration Act 1971, the Immigration Rules (the Rules) are changed “from time to time.” So it is that the precise terms of the have differed at the time of different decisions made about the applicant. Each version of the Rules has however included a provision requiring the mandatory refusal of an application for entry clearance where deception is used, together with a ban on further applications during the ten years following the use of deception.
22. For the 2008 decision and the 2010 decision, the relevant part of the Rules were paragraphs 320(7A) and 320(7B) which provided that:

320 Grounds on which entry clearance or leave to enter the United Kingdom is to be refused….

(7A) 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.
(7B) subject to paragraph 320(7C), where the applicant has previously breached the UK’s immigration laws by:
…(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not)
Unless the applicant:
…(ii) used Deception in an application for entry clearance more than 10 years ago
23. For the 2019 application the relevant parts of the Rules was paragraph V3.6 of Appendix V: Immigration Rules for visitors, which provided that:

An application will be refused where:
(a) 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
(b) Material facts have not been disclosed,
In relation to their application or in order to obtain documents from the Secretary of State or a third party provided in support of their application.
24. For the 2023 decision the relevant part of the Rules was paragraph V3.1 of Appendix V: Visitor which provided that “the applicant must not fall for refusal under Part 9: grounds for refusal” together with paragraph 9.8.1 of Part 9 which provided that:

An application for entry clearance or permission to enter must be refused if:
(a) The applicant has previously breached immigration laws; and
(b) The application is for entry clearance or permission to enter and it was made within the relevant time period in paragraph 9.8.7.
25. Paragraph 9.8.7 (f) provided that the relevant time period where an applicant used deception in an application is 10 years from the date of the refusal of the application in which deception was used.
26. The term “previously breached immigration laws” is defined in paragraph 6.1 of the Rules:

“a person previously breached immigration laws if they overstayed or used deception in relation to a previous application for entry clearance or permission.”
27. For the challenged decision the relevant part of the Rules remained paragraph V3.1 of Appendix V: Visitor together with paragraph 9.8.1 of Part 9, the terms of which remained as set out in the paragraphs immediately above.

Relevant Authorities
28. In AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 the Court of Appeal (Lord Justices Rix, Longmore and Jacob) considered paragraph 320 of the Immigration Rules and held at [76] that:

“Dishonesty or deception is needed, albeit not necessarily that of the applicant himself, to render a ‘false representation’ a ground for mandatory refusal”.
29. The same approach was followed by the Upper Tribunal (UTJ McKee) in respect of part 9 of the Immigration Rules in Ahmed (general grounds of refusal – material non-disclosure) [2011] UKUT 351 (IAC) in which the following guidance was provided:

“In order to have made false representations or submitted false documents so as to attract a mandatory refusal under Part 9 of the Immigration Rules, an applicant must have deliberately practised ‘Deception’ as defined at para 6. Failing to disclose a material fact is also classed as ‘Deception’. It follows that such failure also requires dishonesty on the part of the applicant, or by someone acting on his behalf’
30. In Naidu, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 156, the Court of Appeal (Lord Justices Lloyd Jones and Beatson) held that it would be Wednesbury unreasonable for a decision maker to refuse a second application for entry clearance on the basis that deception had been used in a previous application, without considering an innocent explanation for the deception that is proffered in the second application and which had not been before the original decision maker. At [44] of his judgment Beatson LJ said:

…In my judgment it is open to the person involved to proffer an innocent explanation in a further application supported by evidence which was not before the decision maker at the time of the first decision. Once proffered that explanation and that evidence must be considered by the Secretary of State when deciding the further application. It must be addressed when considering whether to maintain the decision that deception was used on the earlier occasion. In making the further decision, weight indeed considerable weight, can properly be given to the first decision.
31. In R (Kaur) v Entry Clearance Officer (New Delhi) (ECO allegation of deception; fairness [2026] UKUT 80 (IAC) having undertaken an extensive and detailed examination of the relevant authorities concerning procedural fairness, the Upper Tribunal (UTJ Blundell) found at [70] that:

In my judgment, therefore, 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.

Analysis
32. Although there was disagreement in the pre-action correspondence, by the time of the hearing before me there was no real disagreement between the parties, applying the authorities identified above, about how the entry clearance officer (ECO) was required to approach the applicant’s 2024 application.
33. It was common ground applying AA (Nigeria) and Ahmed that the effect of paragraph 9.8.1 taken along with 9.8.7(f) and paragraph 6.1 of the Immigration Rules, was that the any application by the applicant for entry clearance made in the ten years after the 2019 decision would fall for mandatory refusal if the applicant (or someone acting on his behalf) were found to have been dishonest and used deception in his 2019 application with the intention of gaining an immigration advantage.
34. The finding of deception in the 2019 decision was not however dispositive of whether deception had in fact been used by the applicant in the 2019 application. In accordance with the judgment in Naidu, the ECO deciding the 2024 application was required to consider the innocent explanation proffered for the false representation in 2019, and determine for himself whether the 2019 application involved the use of dishonesty or deception and consequently whether the mandatory refusal of future applications applied. When doing so the ECO was required to consider whether the false information was provided deliberately in order to gain an immigration advantage.
35. I pause to note that this was not the approach taken in the 2023 decision and comment that it appears to me that that decision would have been vulnerable had the threatened judicial review proceedings been commenced.
36. These proceedings however are not concerned with the 2023 decision but the 2025 decision and I turn therefore to deal with the three bases on which that decision is challenged. Although they involve some overlap, for convenience I will take each of the three bases of challenge in turn making reference to the parties very helpful submissions as I analyse those disputed challenges to the decision.

a. The respondent unlawfully and irrationally found that A had used deception in the 2019 application
37. Mr Wilding summarises the applicant’s case in his helpful skeleton argument stating that the submission has remained throughout that “there is an inadequacy of consideration to [the applicant’s] intention to deceive either in the 2019 or the 2025 decision”. Mr Wilding submits that in the challenged decision the ECO failed to apply published guidance and to consider afresh whether there had been an intention to deceive in the 2019 application.
38. Contrary to these submissions, it is in my judgment clear that the challenged decision does engage with the fundamental question of whether the false representation in 2019 was the result of an intention to deceive or an innocent mistake, and that the ECO did so by considering the explanation that was advanced with the 2024 application. This is evident from the explicit reference to the explanation proffered in the paragraphs of the challenged decision replicated at [16] above. In particular, at (ii) of the letter, the explanation advanced by the applicant’s representatives at [29] of their written submissions is directly quoted, at (iii) those written submissions by the applicant’s representatives are again quoted and at (iv) it is explicitly said that “I have considered these submissions from your representatives.”
39. I am not persuaded that the ECO failed to consider the question of whether there had been an intention to deceive “afresh” or that the ECO relied only on the 2019 decision. I agree with Mr Gajjar’s submission that the decision maker had to start somewhere. The premise for considering whether there had been an intention to deceive was the acknowledged false representation in the 2019 application. In those circumstances, the first assessment of that falsehood which came in the 2019 decision, was a reasonable starting point for the decision maker in 2025. In fact, taking the 2019 decision as the starting point for the consideration of the explanation proffered with the 2024 application reflects the guidance provided at [44] of Naidu that “[i]n making the further decision, weight indeed considerable weight, can properly be given to the first decision.”
40. I am further satisfied that the ECO’s consideration of the innocent explanation proffered for the false information provided in 2019, at (ii) – (iv) of the challenged decision was consistent with the published guidance for decision makers. That guidance requires decision makers to consider whether an innocent mistake was made and says that an application should only be refused on the grounds of false representations if the decision maker is satisfied that the inaccuracy is the result of deception. The ECO followed that process at (ii)- (iv) of the challenged decision when considering the innocent explanation that had been proffered by the applicant, namely that the false representation was the result of a simple error on the part of the agent.
41. In paragraph (ii) the ECO refers to the self-declarations made by the applicant in the 2019 application. At (iii) the ECO refers to the applicant’s use of the first person in his 2019 application before stating that “None of the information or documents provided with this application indicate or demonstrate that an agent of third party was used to assist with submitting the application”. The ECO goes on to consider in the same paragraph the written submission made that the email address used with the 2019 application was indicative of the use of an agent but concluded that “whilst I note that the e-mail address used on that application does not appear to contain your name, this alone does little to demonstrate that this would indicate a third party assisted with the application.”
42. Paragraph (iv) of the decision provides the decision maker’s conclusion on the submissions that had been made and the explanation for the 2019 omission that had been proffered in those submissions. Although clumsily expressed (see below and the analysis of the complaint about the burden of proof), it is tolerably clear from paragraph (iv) and in particular the statement that “I am satisfied on balance that [the submissions from the representatives] do not demonstrate that you did not previously employ deception”, that the ECO did not accept the proffered explanation and reached the conclusion that the inaccurate answer in the 2019 application was not the result of a simple error on the part of the agent, but was the result of a deliberate deception.
43. The explanation for that conclusion is given in the same paragraph in which it is said “I have reached this conclusion because omitting your previous Entry Clearance Refusals on an application appears to be an attempt to mask that you have previously been refused entry clearance for the United Kingdom .” The explanation goes on to add that the details of previous refusals of visas “appear to have been deliberately omitted from this application in question.”
44. In my judgment therefore, it is tolerably clear that at (ii) – (iv) of the challenged decision, the respondent is engaging with and answering the specific submissions that were made with the 2024 application and that when doing so the ECO was engaging with and answering the fundamental question of whether the omission in the 2019 application was dishonest or innocent. Having done so the ECO concluded that the false representations in 2019 were the result of deception rather than the alternative explanation that it was the result of a mistake by the agent.
45. A number of complaints are made in the grounds for judicial review and in Mr Wilding’s subsequent skeleton argument and submissions about this conclusion reached by the ECO, and the reasons given for that conclusion. It is submitted that the conclusion and the reasons given are irrational. I remind myself of the very high threshold that irrationality involves and that the question for me is whether the decision of the ECO was one which is outside the range of reasonable decisions open to the decision maker. I also remind myself that the decision of the ECO must be assessed on the basis of the information that was before him and not information and arguments subsequently advanced. With all that in mind I turn to consider the complaints made about the rationality of the decision and the reasons given.

Error by an agent
46. The grounds of review submit that the ECO’s rejection of the applicant’s explanation that the false information in the 2019 application was the result of an error by the agent is irrational. It is argued that the explanation should have been accepted because the email address used in that application strongly gives the appearance of a visa company and that the applicant’s age and the fact he does not speak English corroborates the explanation given.
47. In reply Mr Gajjar submitted that the applicant had failed to show that the e-mail address used in the 2019 application was linked to an agent, pointed to the fact that the 2019 application explicitly states that the email address belongs to the applicant, suggested that the name of the email address was inconsistent with it belonging to an agent, and stated that the name of the errant agent has still not been provided by the applicant.
48. As these competing submissions illustrate, there was material before the ECO which both pointed towards and away from the involvement of an agent in the 2019 application. The challenged decision demonstrates that the ECO evaluated that material and the explanation proffered, including the submissions about the email address used, before reaching his conclusion. There is no reason to conclude that despite explicitly stating that he had considered the application, the ECO ignored the information in that application about the applicant’s age and inability to speak English. The conclusion the ECO reached was that the material did not demonstrate that a third party was used to assist with submitting the application. This was unquestionably one which was within the reasonable range of conclusions that could have been reached. The alternative arguments about the email address do no more than disagree with the ECO’s evaluation and seek to re-argue the issue.
49. The assertion in the respondent’s detailed grounds of defence that inconsistent explanations have been given about the use of an agent in the 2019 application on behalf of the applicant over the years, and the further evidence the applicant seeks to adduce in reply to that suggestion, including a witness statement from the applicant in which for the first time he gives a detailed account of the 2019 application, serve only to highlight the limited information that was before the ECO and the attempt that has been made to re-argue the issue since the decision was made. These further arguments and additional pieces of evidence are irrelevant to an assessment of the rationality of the decision made by the ECO on the material that was before him. For this reason I do not admit the further evidence and I do not have regard to the arguments advanced about inconsistent explanations.
50. In summary, I am satisfied that the ECO’s rejection of the applicant’s explanation that false information was provided in the 2019 application because of a mistake by an agent, was rational. It was the result of the ECO’s evaluation of that explanation on the basis of the material that was advanced with the 2024 application. It reflects the fact that very limited information was provided to support the explanation. It may be that a different ECO could have come to a different conclusion. It may or may not be that a future ECO, considering the full range of material that has subsequently been advanced by the two parties would come to a different conclusion. It is clear however in my judgment that the conclusion reached by this ECO on the material that was before him was one that falls within a reasonable range of conclusions available to him and was not therefore irrational.

No immigration advantage from the omission
51. The written submissions sent with the 2024 application included the assertion at [24] that “there is no rational basis to conclude that [the applicant] made a false statement to secure an immigration advantage” and at [31] the curiously phrased comment is made that “it is called into immediate question just what, if any advantage in immigration terms the applicant could have been seeking to secure by making the above errors.”
52. As these submissions indicate, the motivation behind the making the false representation in the 2019 application was unquestionably a matter for the ECO to evaluate in order to determine whether the incorrect information had been provided by mistake or to gain an immigration advantage. Despite the submissions made by the applicant, the ECO concluded that “omitting your previous Entry Clearance Refusals on an application appears to be an attempt to mask that you have previously been refused entry clearance for the UK”. The conclusion in other words was that, notwithstanding the applicant’s submissions, the applicant was seeking to secure an immigration advantage when making the false indication that he had not previously been refused a visa.
53. Mr Wilding argues that this conclusion was irrational because there was no obvious immigration advantage to the appellant answering “no” to the question of whether he had previously been refused a visa since the respondent would have already known about the refusals. I agree with Mr Gajjar that, this argument is simply a disagreement with the conclusion reasonably reached by the ECO and an attempt to belatedly argue for an alternative conclusion.
54. In any event I do not accept the submission being made that there was no obvious advantage to be gained from the false representation in the 2019 application. It is uncontroversial to recognise that a person who has not been refused a visit visa in the past would be in a stronger position applying for a such a visa than a person who has been refused three such visas in the past. The applicant therefore stood to gain a clear immigration advantage if the ECO accepted the answer given in the 2019 application, and believed that the applicant had not previously been refused a visa, rather than the true situation that he had been refused three previous applications.
55. I am not persuaded that the appellant’s case is strikingly similar to that of the applicants in Ozhogina and Tarasova (deception within para 320(7B) – nannies) Russia [2011] UKUT 00197 (IAC) as Mr Wilding suggested. In Ozhogina and Tarasova the applicants falsely represented in their first application for a visit visa that they were employed by a family as the managers of the family’s company when in fact, as they made clear in the second application for entry clearance, they were nannies for the family’s children. The Tribunal found that the claim to be managers rather than nannies in the first application was not a falsehood told to gain an immigration advantage.
56. That is a very different situation to the applicant’s position. In Ozhogina and Tarasova the false claim of being managers made it less likely, if the claim were accepted, that they would be granted entry clearance than the true situation of them being nannies (see [25] of the decision). In the applicant’s case by contrast, the claim that the applicant had not been refused a visa in the past, would unquestionably make it more likely that the applicant would be granted a visit visa, if it were accepted, than the truth that he had in the past been refused three such visas.
57. The main thrust of this submission is the assertion that the false representation made in 2019 was bound to be uncovered because the respondent had access to the information to confirm that the applicant had been refused visas in the past. This submission however fails to recognise that it was far from inevitable that the ECO would identify the false representation in the application and even if the likelihood is that the false representation would be exposed there are many reasons why an applicant might still decide to take his chances and hope that the false representation goes unnoticed.
58. Overall therefore, the ECO undertook a rational evaluation of the motivation behind the false information provided in the 2019 application. The conclusion reached that the false information was provided in an attempt to mask the previous refusals was well within the range of reasonable conclusions that could have been reached. It was therefore rational.

Conclusion
59. Overall, I am satisfied that the ECO did give adequate consideration to the key question of whether the false representation in the 2019 application was because the applicant intended to deceive the ECO to gain an immigration advantage, or alternatively whether the false representation was the result of a mistake by an agent. I am satisfied that the ECO considered this question “afresh” in the light of the submissions that were made with the 2024 application and in accordance with the respondent’s published policy and the requirement in that policy to determine whether the false representation was the result of a mistake or deception. I am also satisfied that the conclusion reached by the ECO that the false representation involved a deliberate attempt to mask the previous refusals of visas was within the range of rational outcomes. Accordingly I dismiss this basis of challenge to the respondent’s decision.

b. The respondent further acted in a procedurally unfair way by failing to adopt the minded to refuse process before making the challenged decision
60. Mr Wilding relied on the decision in Kaur and the line of authorities that led to that decision to submit that fairness required the respondent to give notice of the allegation of deception to the applicant and then allow the applicant to respond to that allegation, before making a decision in respect of the application. He argued that the respondent was required to put not only the false representation to the applicant but also why she thought the false representation in 2019 involved deception, and then allow the applicant to respond to that specific allegation before making the decision.
61. Mr Gajjar accepted that procedural fairness required that the applicant be put on notice of the allegation of deception prior to the application being decided, stating that the overarching position identified in the authorities is that “surprise is the enemy of fairness”. He argued however that fairness required only that the “gist” of the allegation was made known to the applicant in advance and that there was no requirement for a dialogue between the respondent and the applicant prior to a decision being made. In the circumstances of this case, Mr Gajjar submitted that the applicant was on notice of the allegation of deception from the time of the 2019 decision and therefore that he had a fair opportunity to address the allegation in his 2024 application.
62. Mr Gajjar’s submission that the applicant only need be aware of the “gist” of the allegation comes from the seminal decision on procedural fairness R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, 560 and in particular the observations that:

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.
63. As this passage demonstrates, in situations such as this one, the real question when assessing the fairness of the procedure adopted, is whether sufficient information was provided to enable an applicant to know the case he has to answer and therefore make worthwhile representations before a decision is taken.
64. In this case the applicant knew from the time he received the 2019 decision that the case he had to answer was an accusation of deception arising from his false assertion that he had never been refused a visa for any country including the UK. That much is made clear in the 2019 decision which identified the false assertion and then stated “I am satisfied that you have made false representations and failed to disclose material facts in support of your application and have therefore used deception.” This passage is entirely consistent with procedural fairness part of the respondent’s policy guidance “Suitability: False Representations, Deception, False Documents, Non-Disclosure of Relevant Facts”: “you must set out exactly what the allegation is and make it clear you are alleging dishonesty/deception”
65. I am not persuaded that the applicant had to know why the respondent considered the false representations in 2019 arose from deception rather than innocent mistake in order to make worthwhile representations about whether he had intended to deceive. This is evident from the representations that the applicant did make with the 2024 application, in which he specifically addressed the case he had to answer and advanced an alternative innocent explanation for the false representations. Procedural fairness did not require that he knew in advance what the respondent would make of that alternative explanation.
66. Whilst therefore the 2019 decision will have been vulnerable to challenge on the ground of procedural fairness because at the time that decision was made the applicant had not had an opportunity to make worthwhile representations, by the time the applicant made his 2024 application he had unquestionably been given a fair opportunity to answer the allegation of deception.
67. The second basis of challenge to the respondent’s decision must also therefore be dismissed.

c. In refusing the application, the respondent reversed the burden of proof in the challenged decision.
68. Mr Wilding submits that the wording used in [iv] of the challenged decision: “I have considered these submissions from your representatives, but I am satisfied on balance that it does not demonstrate that you did not previously employ deception” demonstrates that the ECO was requiring the applicant to show that he had not used deception in 2019 when in fact the burden was in the respondent to show that the applicant did use deception. He also argues that the wording later in the same paragraph “omitting your previous Entry Clearance Refusals on an application appears to be an attempt to mask that you have previously been refused entry clearance” is insufficient to discharge the burden of showing on balance that the false representation was a deception rather than an innocent mistake.
69. Mr Gajjar submits that the ECO’s decision should not be scrutinised as if it is a statute but should be considered as a whole. Mr Gajjar submits that there is a distinction to be drawn between the evidential burden that fell on the applicant to provide an innocent explanation for the false representation in the 2019 application, and the burden of establishing deception which he acknowledged remained with the respondent throughout. Mr Gajjar argued that it is apparent from the challenged decision that, the applicant having advanced an innocent explanation, the ECO considered that explanation and despite the explanation proffered, decided on balance that it was more likely that the applicant had used deception.
70. I have considered already the suggestion that by starting with the 2019 decision the ECO was starting in the wrong place. I remain satisfied that the 2019 decision, which was not challenged, carried significant weight and was a reasonable place for the ECO to begin his decision making process. I agree with Mr Gajjar that the result of the 2019 decision was an evidential burden on the applicant to adduce evidence to establish that the false representation in the 2019 application was the result of an innocent mistake. The applicant clearly adduced such evidence in the written submissions. The applicant having done so, the key question is did the ECO apply the correct standard of proof when rejecting the explanation that was proffered and finding instead that there had been deliberate deception?
71. It is indisputable that [iv] of the challenged decision is poorly drafted and that a small amount of extra care and attention to the drafting of the decision would have prevented this contested litigation. The paragraph does however begin with the ECO correctly identifying and applying the appropriate standard of proof: “I am satisfied on balance that…” and in those circumstances it should not readily be assumed that the ECO has applied a different standard.
72. The unhelpful use of a double negative in the sentence “I am satisfied on balance that [the submission] does not demonstrate that you did not previously employ deception” unquestionably obfuscates the finding that has been made “on balance.” The sentence must however be read together with preceding paragraphs in which the ECO rejected the explanation about the use of an agent, and the explanation for the finding which immediately follows. That explanation is that the omission in 2019 appears to be an attempt to mask the previous refusals, and that the previous refusals appear to have been deliberately omitted in the 2019 application.
73. It is correct that the ECO’s use of the word “appears” twice when explaining those findings implies a degree of uncertainty about those findings. However the use of the word “appears”, even twice, is not inconsistent with a conclusion on the balance of probabilities. Certainty of decision was not what was required. What was required was an assessment of what explanation for the false representation in 2019 was more likely to be true.
74. Although it is poorly expressed the only sensible conclusion that can be drawn when the decision is read holistically, including the rejection of the claimed use of an agent, the finding that it appears there was an attempt to mask the previous refusals and the finding that it appears the omission was deliberate, is that when confronted with the competing explanations, the ECO determined that the false representation was more likely due to an intent to deceive than the alternative explanation that was proffered namely a mistake by the agent.
75. I am satisfied therefore that when the challenged decision is read holistically it is tolerably clear that the ECO did apply the correct standard of proof when deciding that the false representation in the 2019 application was the result of deception rather than an innocent mistake and that the application for entry clearance therefore fell for refusal. The third basis for challenging the decision is therefore dismissed.
76. The claim for judicial review of the respondent’s challenged decision is accordingly dismissed.

Disposal
77. The parties are invited to draw up an Order which reflects the terms of this judgment. The Order should address any ancillary matters, including any application for permission to appeal and costs.

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