2014-May 02: Declining residence applications under SM3.5

Visa Pak 160 - Further information about declining residence applications under SM3.5 and F4.10.5 Immigration Instruction

Visa Paks

2 May 2014

Declining residence applications under SM3.5

This item provides interim advice on declining residence applications under SM3.5 and F4.10.5.

F4.10.5 sets out s 93 and s158 of the Act. The instructions in F4.10.5 also refer to EOIs and are similar to SM3.5 and, consequently, this advice is applicable to both. It is critical that we ‘get it right’ in interpreting these instructions and following the correct procedures as the failure to do this impacts significantly on applicants, INZ and the IPT.

Summary

As set out in SM3.5 and F4.10.5 an application may be declined if false or misleading information was provided with the EOI or relevant, potentially prejudicial information was withheld from the EOI. There is no requirement for either the provision or omission of information to be intentional, i.e. the person submitting the EOI or application may inadvertently have withheld or provided incorrect information. However, the instructions are permissive rather than mandatory meaning that officers may consider any explanation provided by the applicant in respect of either of these and decide to continue processing the application. For example, a customer may forget to declare that he had a minor conviction 10 years ago or genuinely believe that he did not need to declare it. The officer may consider this a reasonable explanation.

Applications can be declined in accordance with SM3.5 or F4.10.5 without consideration of A5.25 or completing a character waiver. The decision should be recorded in AMS under Declined failed Character.

Process

There are a number of key considerations and actions in the process of considering whether or not to decline in accordance with SM3.5 or F4.10.5:

  • Information provided at any point after an EOI is made and until the application is made can form the basis of a decision as set out in SM3.5 and F4.10.5. Any false or misleading information provided with the application should be considered under A5.25.
  • Is the misleading information or omission of information relevant to the decision to select the EOI for assessment or to assessing whether the application meets instructions? This is a critical issue to decide as the IPT acknowledges that EOIs should provide a real and efficient filter for INZ in deciding whether to invite a person to apply and that false or misleading information is detrimental to this process. However, if that information is irrelevant to the decision to ITA or decide the application, then we cannot decline the application (Both SM3.5 (b) and F4.10.5 (b) state that the information in question must be: relevant to the issuing of an invitation to apply or the assessment of a resident visa application).
  • If a customer fails to declare a declined visa in their EOI, then you should consider the reason(s) for the decline in deciding whether or not SM3.5 or F5.10.5 applies. For example, character issues may have impacted on the decision to ITA whereas insufficient funds at the time are probably irrelevant.
  • If you have information that may lead to decline the application in accordance with SM3.5 or F4.10.5 then this must be put to the applicant in a PPI letter with reference to either of these immigration instructions. PPI letters should not refer to A5.25 or the consideration of a character waiver as this is not part of the process for SM3.5 or F4.10.5.
  • If you have received false or misleading information but are satisfied that there was no intention to deceive and are not considering declining the application in accordance with SM3.5 or F4.10.5, then you may proceed straight to a character waiver under A5.25.
  • If you decide to interview an applicant about providing false information or withholding relevant information, then you must advise the person beforehand that you want to discuss some aspects of their application. There should be no suggestion to the applicant that it is a Tier Two interview. Guidelines for interviewing applicants about the use of an unlicensed adviser are attached.
  • If you decide that the information provided or withheld does not warrant declining the application or if it was provided with the application rather than at EOI stage, then it should be put to the applicant as a PPI and following the response, a character waiver considered under A5.25.

The PPI letter should state:
   
 a. that you have decided not to decline the application under SM3.5 or F4.10.5; and
    b. that there is still a character issue due to the false or misleading information provided and that you are now considering a character waiver under A5.25; [now follow the normal process for a character waiver].

There are new template letters for E17 and V33a that must be used when declining under SM3.5 or F4.5.10. E11 already refers to failing under Character and you can continue to use it. 

The key difference between the new version of V33A and other decline letters is the paragraph referring to the IPT. The IPT does not have the jurisdiction to decide on matters relating to EOIs. However, you should not tell applicants that they have no right to appeal to the IPT as this is for the IPT to decide whether or not they have jurisdiction. Instead the decline letter advises them that the IPT may not have the jurisdiction to consider their appeal. The IPT will then advise the appellant whether or not their appeal application fee will be refunded.

Action

Follow this advice.