EC rejected under 320 7(A)..please help

[vinkar]

I applied on 21st April with HSMP approval letter for Entry Clearance in the Chennai VFS office..

I was called for an Interview on 16th Morning in Chennai BHC

I was asked series of questions about who filled the application,are u aware of the guidelines of Tier1 general,did u know how u claimed the points,are u working with xxxx organisation during this and this period and lot of questions which i answered honestly..

I claimed points as per below,

Age - 20 points (birth cerificate)
qualification - 30 points (B.E)
previous earnings - 25 points ( with my indian salary equivalent to 4,900 pounds)

In the previous earnings section..I calimed points for my country were the income was claimed which is india.

During my 12 months period which i had claimed points,i was in the UK for 6 months and 8 days.As i was getting only allowances in the UK and the salary in India ,i claimed points for my indian earnings as i thought this was right as per my understanding of the HSMP guidlines..

The ECO asked me "as per our records u have been in the UK for 6 months and 8 day in the UK" for which i told yes.Then he asked me "again im asking u sir are u aware of the guidelines for which u are claiming points ...i told yes..

Finally he told me that why dont u declare WPUK about ur UK visit...I told i was not aware that i need to inform them as there is no option in the initial HSMP appliation form to declare that..But the payslips which i provided to them clearly says it is London during that period...

He told me that" since you have stayed in the UK for work for 6 months and 8 days...u have to show the earnings as per UK and not as per India"...I was thinking at that time to answer as im shocked to hear this from him....

Later he told me to wait so that he could make a decision.

After sometime he called me and told that"im afraid ur Visa has been refused as per immigration rule 320 7(A)...

I was not sure about that and came back to home....

When i checked in the internet about the rule,it says " I cannot reapply for next 10 years as per rule 320 7(a)...."Which was shocking to me...

When i called the BHC and asked about it they are not disclosing to me as it will be decided only after the Admin review.....

Now im planning to go for an Admin review as i am not a person who cheats BHC for Entry to the UK....I wanted to remove that hard rule which is imposed on me...

The statement in my refusal letter is"Your application for entry clearance has beed refused

under immigration rule 320 7(a) as False representation was made"Im in need of desperate help from you all as to how to address in the admin review form that

i have not made any false representation and i was not aware of that guideline.....


Please help......

[geriatrix]

Well, the HSMP CW had no way of knowing that you worked in UK for some time during the 12 months for which you have claimed income - since he/she never had access to your passport!. And so your HSMP application was approved in the first place. But the ECO had your passport and saw your UK WP , and that's where the whole thing turned against you.

You have two major issues:-
1. You did not read the HSMP guidelines carefully before submitting your application.
2. Worse still, you provided fraudulent information ... means you lied.

Here's what the HSMP guidelines say:

41. If you have lived and worked in more than one country during the past 15 months we will normally assess your income over a 12-month period against the country where you have spent the longest period, on a pro-rata basis. For example we consider a period of up to 12 months in the last 15, so that if you have spent 8 of the months in the United Kingdom and 4 in Nigeria, we will take your earned income in the United Kingdom, divide it by eight and multiply it by 12 to give an annual income figure. You will then be allocated points appropriate to that figure. If you wish to have your earnings calculated on a pro-rata basis, you should supply supporting evidence to cover the full earnings period claimed. You need to submit the appropriate forms of evidence for consideration for the earnings period claimed(see below).
42. If you have been seconded overseas during the last 15 months and your salary continues to be paid in the normal manner overseas,
the country where you have been seconded to and working would normally be considered. In order for us to establish which country
code to consider your earnings against you will need to provide evidence of where you have been working and where your salary has been paid for the 12-month period you wish us to consider.
43. If you are living and working in a country but having your income paid into a bank account in another country your income will be considered against the country code where you are living and working.

Since providing fraudulent information is a serious offence, a ban has been slapped on you.

i was not aware of that guideline.....

That excuse is not acceptable from someone considering to emigrate as a Highly Skilled professional. Feel sorry for what has happened to you, but if I have understood your case correctly, then you have no one else to blame but yourself.

Please do let me know if I have gone off-track and arrived at inaccurate inferences in your case. If so, my apologies in advance.

regards

[vinkar]

Hi Mehta,

I applied with the HSMP letter and this was initially 25 points for 4,900 under old HSMP process before 29 feb 2008

My problem is i was unaware that i had to show the UK earnings as i was paid only allowances in the UK and salary in India...

[vinkar]

Hi Mehta,

Sorry i dint answer ur question,..

I did the calculation only for my salary in india...i didnt use the UK allowances at all....

[geriatrix]

I have edited my earlier response in an effort to explain the situation more clearly. As I have mentioned there as well, please do let me know if my inferences are wrong and if so, how - so that I (and others on the forum) can understand your situation better and perhaps, suggest something else.

regards

[CoolestGuyC]

Finally he told me that why dont u declare WPUK about ur UK visit...I told i was not aware that i need to inform them as there is no option in the initial HSMP appliation form to declare that..But the payslips which i provided to them clearly says it is London during that period...

He told me that" since you have stayed in the UK for work for 6 months and 8 days...u have to show the earnings as per UK and not as per India"...I was thinking at that time to answer as im shocked to hear this from him....

I am assuming this: you did not show that you had worked in UK for 6 months when you applied for HSMP letter or that you earned anything at all in UK, and obtained the HSMP letter by showing only Indian income for whole year. UKBIA might argue this: you misunderstood to rules, so what? why did you not show the fact during your HSMP application(and EC application) that you were working in UK for 6 months? This was a vital fact and you did not inform UKBIA about this fact, hence you faced the rejection. This was clearly a deadly mistake but following approach might help you.

There were 2 applications from you:
1. One for HSMP letter
2. second for Entry clearance

As you applied from India, you must have filled form VAF 9B. What did you fill in part 6.3 and 6.2 (Previous immigration history)? Did you inform them in your application that you had traveled (with a work permit) to London during the claim period? And that you had earned UK allowances?

Now 320 7(A) has been applied since 1st april 2008. So if you misrepresented during both HSMP and EC then there is nothing you can
do now. But if you only had misrepresented during HSMP (assuming that HSMP application was before 1st april) and not when you applied for EC then you can argue as follows:

320 7(A) cannot be applied to you because you never mis represented any fact after 1st April and 320 7(A) came only in effect after 1st April. (This argument would only hold if you have told them about your UK allowance and UK visit in your EC application which was done on 21st April).

Hope above points help you, and the usual disclaimers apply. It might be best if you can consult some immigration lawyer with all your details, before you apply for Admin review.

[ganeshptrk]

In continuation with this, I have a query.
If you are on Work Permit for about 2 or 3 years in U.K and keep coming to India for vacation and going back to U.K to join the work. In the case also, do we need to mention the travel detail in section 6.2 of VAF9B.

Please clarify

Thanks
Ganesh

[geriatrix]

Assuming that 320 7(A) might not be applicable to OP (though I beg to differ), the OP can still be refused under Section 320 (15) - "(15) whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document;".

AFAIK, both HSMP approval and EC (based on HSMP) will fall under the purview of Immigration Employment Document.

Unfortunatley, we're no legal whizkids and given the seriousness of the punishment (10yr ban ), my suggestion would be to consult a good immigration lawyer and seek professional help.


regards

[gotcha]

In continuation with this, I have a query.

Its very bad thing to highjack someone's thread. This guy is in serious trouble, and people are trying to give him suggestions.

If you have questions, try to start new thread, do some search.

Put yourself in his shoes.

[ganeshptrk]

My understanding of this case is this. Correct me if I am wrong.

1. If you are in U.K on Business visa, generally we only get paid allowances per day, and not salary. You will be paid your salary as usual in India. In this case you calculate your earnings based on Indian salary only.

2. If you are in U.K on Work Permit (which you are in this case), then you have to consider your U.K earnings for the period in U.K, and for the rest of period your Indian salary. You may call it as "allowances", but all work permit holders are paid only salary.

Now have you paid any tax in U.K for the time you were in U.K? If you have not paid any tax, then you may claim the amount as allowances only.

3. Lastly, did you mention about U.K stay in section 6.2 or 6.3 of VAF9B?

Other people, may defer me on this.

[CoolestGuyC]

Assuming that 320 7(A) might not be applicable to OP (though I beg to differ), the OP can still be refused under Section 320 (15) - "(15) whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document;".

I agree with sushdmehta about Section 320 (15) applicable to OP, but this rule is a lot softer than 320 7(A), and if OP can prove that 320 7(A) does not apply to him, then there is a possibility to avoid 10 year ban.

[geriatrix]

Section 320 (7A) - "where false representations have been made or false documents 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".
Section 320 (15) - "whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document".

Both look quite similar to me, on the face of it. Keywords being - false representation, failure to disclose material fact - in both the sections, and false documents as an extra addition in 320 7(A). But hey, I am not a legal expert .

But yes, it might be softer if we *presume* that the quantum of punishment for 320 (15) is less than that for 320 7(A). Me no legal expert .

regards

[vinkar]

I have used VAF2 form as the VFS people insisted to fill that form only not the new form..And i have delared about my UK WP and the purpose and the duration in the part 5.1 of VAF2 which ask about previous immigartion to UK...

And in the payslips which i have submitted for HSMP approval letter says the deputed location is London .So i have never lied them or hidden any data....only mistake i did is that calimed points using India earnings as i was not aware completely about the rules....

Please help me in addressing this issue with BHC in my Admin review

[vinkar]

My company didnt deduct any tax in the UK as i was getting only allowances in the UK

[geriatrix]

Leave aside what section of immigration rules applies to OP and what quantum of punishment is assocated with what section, the biggest concern for the OP here is a "ban" - irrespective of the time duration.

Since he will be required to explain the reason of refusal everytime he fills up a visa application (all *important* countries ask for explanation if the visa applicant has been refused entry by any other country anytime), this ban will tilt the balance of probablities against the OP. A ban, per se, might not have that much impact (though it will surely influence the decision to some extent), but it is the reason behind the ban that is going to hurt the OP most.

regards

[CoolestGuyC]

This is clearly unfortunate. If situation is as you describe, then you have not used deception in any form, nor have you made any false representations. And clearly 320(7A) does not apply to you. Your's is a case of wrong interpretation of the word "false representation".

If you had informed them of every fact in both EC and HSMP application, then you can argue that it was a mistake of ECO in first occasion to issue you with an HSMP letter(because he overlooked that you were deputed in London) and you did not use false representation in any of the documents. (bcos you didnot hide nor distort any facts).

I guess ECO is taking very strict meaning of word false representation, where actual case is ignorance of HSMP rules.

[ganeshptrk]

I too agree that you have not hidden any information in your application. Section 320 is not definetly for you. At the most, the ECO might have rejected the visa under general grounds.

My suggestion is first go for administrative review. If this alsofails, you can consult a good immigration lawyer.

[vinkar]

Many thanks Coolestguyc,

Im happy atleast you got my situation.Is it good to say in the admin review that i shlould not be imposed 320 7a as i was never ever given false representation or lied you peple

or

Just say them that i have not made false representation or lied UK WP or the BHC

[CoolestGuyC]

I know this is not relevant to discussion but:

I have used VAF2 form as the VFS people insisted to fill that form only not the new form

This is a very stupid thing done by VFS guys, when the rules say "fill form VAF 9A and 9B" then how can they force OP to fill VAF2?

Leave aside what section of immigration rules applies to OP and what quantum of punishment is assocated with what section, the biggest concern for the OP here is a "ban" - irrespective of the time duration.

This is what OP should fight for, because ban is not applicable to him. ECO is confusing "false representation" with "wrong application of rules".

Since he will be required to explain the reason of refusal everytime he fills up a visa application (all *important* countries ask for explanation if the visa applicant has been refused entry by any other country anytime), this ban will tilt the balance of probablities against the OP.

In case it is proved that 320 7a was not applicable to OP, then I dont think this refusal would be different from any other kind of refusals (for eg. refusal bcos of lack of funds, etc.)
The crux is OP should fight to prove that 320 (7A) shouldn't be applied in his case.

[geriatrix]

where actual case is ignorance of HSMP rules.

Possibly yes, but whose fault has led to this situation? Is it the CW, is it the ECO, is it the UKBA or is it the *applicant*??

Agreed that ignorance can be misconstrued as false representation, but at the same time, false representation can easily be disguised as ignorance. Depends on how you see it or how you want to portray it!! And that's where the balance of probabilities comes into effect.

While we cannot question the OPs claim that he was not aware of the rules (convenient excuse since one cannot prove otherwise), how can one be certain that he did not try to deceive in the first place? Please don't get me wrong - I am not accusing you (OP) but thinking with a UKBA hat on! How on earth can you convince me (UKBA) that inspite of the HSMP guidance and the caseworkers guidance notes being freely and publicly available on the internet, you (OP) failed to become aware of the rules before you decided to apply for HSMP??

Time to think logically and be realistic. If you lie again in an effort to revoke the ban, you might get into more serious trouble than you are in now. So think carefully this time and get your facts straight before you act.

regards

[CoolestGuyC]

Is it good to say in the admin review that i shlould not be imposed 320 7a as i was never ever given false representation or lied you peple
or
Just say them that i have not made false representation or lied UK WP or the BHC

I think your refusal will still stand, but try to make 320(7A) not applicable to you.

To make your admin review strong:
1. Give them the proof that you gave them all information in HSMP application. (by submitting a photocpoy,etc.)
2. Give them the proof that you disclosed every fact in EC application. (again point them to photocopy of EC application).
3. Tell them that this is a case of wrong interpretation of rules(by me as an applicant and HSMP letter issuing ECO officer who overlooked that I was in London)

One example I can think of in parallel is that: An applicant who is actually above 28 years of age, and (by mistake or otherwise) claims 20 points for his age. He submits his passport with application which clearly shows that he is above 28 years of age. ECO overlooks this fact and his application is approved.
But during FLR application this is discovered and OP is accused of using false representation. Does this mean that applicant is using actually using "false representation"? And that 10 year ban be applied on him? I think not. Application should be refused clearly, but it should not lead to a 10 year ban, because this was an ignorant "mistake", and not "false representation".

FYI, I found the definition of "false representation" on http://www.ukvisas.gov.uk/en/ecg/chapte ... %20sixteen

False representations
A false representation is made when an applicant or third party lies or makes a false statement in an application, either orally or in writing. To refuse the application, you must be satisfied to a high standard that a false representation has been made.

If you are so satisfied, then the application must be refused even if the false representation is not material to it. This means that the false representation does not need to be relevant to your decision to grant entry clearance.

The application must also be refused even where the applicant was not aware that false representations have been made.

However, you should not refuse an applicant because you suspect that false representations have been made or because of minor inaccuracies in the application, for example an inaccurate address or mis-spelt name on a VAF.

My point is that no fact was distorted, nor any was hidden. There were no lies. Hence there is no case of "false representation".

Also clause "material facts have not been disclosed" in point 26.16.4 in above link, is not applicable to OP because he did show all facts in his applications

[geriatrix]

I do seem to have a different opinion on the case, but this time around I hope that I am wrong.

My best wishes to OP. Sincerely wish that this ban on you gets revoked because this can have significant negative consequences.

And do let us know of the final outcome, through the forum.


regards

[CoolestGuyC]

How on earth can you convince me (UKBA) that inspite of the HSMP guidance and the caseworkers guidance notes being freely and publicly available on the internet, you (OP) failed to become aware of the rules before you decided to apply for HSMP??

Not being aware of rules and hence applying them wrongly (by submitting all the true and genuine documents) is not same as "false representation". OP's application is clearly headed for refusal, but what I am trying to say is that he does not deserve a 10 years ban.

Being over zealous to apply rules sometimes leads to stupid decisions like these, where ECO's know that applicant has not lied (otherwise he would have submitted a false document, etc.) but they are punishing him hard for his simple mistake.
(I know rules are rules and I am ranting.....but just in case if some one benefits )

Hope you take no personal offence, sushdmehta, you are a wonderful member of this forum who has helped lots of people , I am just trying to see if OP can avoid the ban...

And finally, vinkar, it is very important to represent yourself truthfully and no point in beating around the bush, and as sushdmehta says,

get your facts straight before you act.

[geriatrix]

Hope you take no personal offence, sushdmehta, you are a wonderful member of this forum who has helped lots of people , I am just trying to see if OP can avoid the ban...

Oh no, not at all!. There is no question of feeling offended. And I do not see any harm in OP following your (or anyone else's) suggestions. There's nothing to lose! All I can say is - be truthful.

It is just that I don't believe it is as easy as it seems to be. And my opinions are based on my belief that, even if unknowingly, a false representation has been made at the time of HSMP application. I do not see this as an ignorance (maybe I expect too much from HSMP / Tier 1 applicants) and therefore my sincere wish that I be proved wrong in this case. So, just a difference of opinion, nothing more, and hence I had no further suggestion to offer to OP.

I am not aware on whether 320 7(A) or Section 320 (15) or something else can be applied to his EC application only or can any be applied to the HSMP application as well (even though it's been approved). So again, have nothing to add.

In a nutshell, ran short of ideas / suggestions. And of course, I had no intention of highjacking the thread and starting our own debate on the case rather than helping the OP.

No hard feelings whatsoever. Had no reason!!

regards

[vinkar]

Hi all,

I sincerely thank you people for helping me in this....I say this from bottom of my heart....

You have boosted my confidence.

Many Thanks