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A few years ago, I applied for a UK visa. The visa was initially refused and I had no rights of appeal. However, the refusal letter had some glaring mistakes and I sent an email to the Embassy. The refusal was "overturned" by an ECM.

I am now making an application for a visa which has the question "Have you ever been refused a visa?". How should I answer it?

AndyT
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uberqe
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    @andyt why would anybody but immigration officials making a decision care? – uberqe Mar 08 '18 at 14:03
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    @AndyT one sentence, uncited responses are not normally considered sufficient as answers here. Do you happen to know why comments can only be voted up on se? – user16259 Mar 08 '18 at 21:24
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    @user16259 Then don't post it at all. Comments are for requesting clarifications to the question, not for answering it. – David Richerby Mar 08 '18 at 23:09
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    I disagree. @user16259 provided good information to the post. It's not an answer, it's a comment that adds (and removes) from the question. – insidesin Mar 09 '18 at 05:05
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    @user16259 - Uncited responses aren't welcome in answers, true; they're not that welcome in comments either. I won't say I haven't done it, because I have. But when you write something contentious that people want to vote down, they get frustrated at it being in a comment. Maybe consider this less a "don't ever post anything in comments which isn't a request for clarification" (I'm realistic, I know it happens), and more a "this particular comment of yours is not suitable because people want to downvote it. I suggest deleting it." – AndyT Mar 09 '18 at 09:29
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    @insidesin - It's a part answer at least. It covers a crucial aspect of it. It implies an answer of "you don't need to declare it". And it's only good information if it's right. How do people know if it's right without citations? - They judge based on other people's votes on it, assuming the voters know whether it's right. Lots of people think it's right, but lots of others think it's wrong. There was a similar answer here earlier, which got up to +4 (I think) but then made it down to -2 (I think). user16259's comment can't be downvoted, so people can't judge it easily. – AndyT Mar 09 '18 at 09:33
  • @AndyT So tell Stack Exchange to fix that and allow downvotes on comments. The meaning of the word 'comment' in the English language is clear enough, if Stack Exchange uses it wrongly, it is their problem. If comments are meant to to seek clarification from the author, then change the link text to 'seek clarification', not 'add a comment'. Barking up the wrong tree isn't getting us anywhere. –  Mar 11 '18 at 04:18
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    If your only concern is that you don't want "YES" to be the first word in your answer to the question, then something along the lines of "A visa application I made on Date1 was accepted by XXX on Date3 after an initial refusal happened by mistake on Date2" might work. – walen Mar 12 '18 at 09:53
  • If you are appying for another visa from the UK, I would agree with @madhatter. If the new visa in question is not for the UK, I would answer no to the question as the UK refusal is not a matter of public record and therefore not discoverable. By declaring the dubious rejection you could raise questions that the applicable country is not able to resolve to their satisfaction on a timely basis, resulting in a rejection of the application. – Glenn W9IQ Mar 11 '18 at 23:51
  • Perhaps the best answer, if the initial judgment was a demonstrable fundamental error on the part of the issuing authority, which error they were later obliged to correct, is to answer "No" but to put in a reference to an explanatory note detailing what actually happened. – John MacLeod Mar 13 '18 at 23:52

4 Answers4

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As this answer makes clear, space is given on the form to explain any affirmative answer, and concealment of potentially negative answers because "you don't think they matter" or "it doesn't count" is looked upon with very little tolerance.

My personal feeling is that you're better off being clear, and briefly clarifying the circumstances. An answer of "yes" with a clarification of "refused 20/6/15; reversed by ECM 17/8/15, refs ABC12345 DEF67890" cannot be misunderstood, and doesn't lay you open to later accusations of misrepresentation.

MadHatter
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    That's fine for UK applications. But for other countries I'll have to add an explanation saying the visa officer made a mistake. Why should I have to explain someone else's mistake? – uberqe Mar 08 '18 at 13:58
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    You don't have to explain anything, but both the refusal and the overturn actually happened, so you do (IMO) need to say that. In your own mind you may feel that the first was a wrong and the second righted it, but your feelings don't override history. You should do whatever you feel is right, but if you end up being accused of misrepresentation "I didn't think it counted" is a poor defence. – MadHatter Mar 08 '18 at 14:30
  • @MadHatter doesn't the accusation of misrepresentation have to be backed up by a finding of deliberate deception? I didn't think it counted would be the perfect defence in that cased if the person making that defence could prove to a balance of probabilities that he really believed that. –  Mar 08 '18 at 15:24
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    Not by UK immigration authorities: again, read the linked answer, where Gayot Fow notes in a comment that the Upper Tribunal ruled that mere forgetfulness counted as deception. As for other authorities, I couldn't comment. – MadHatter Mar 08 '18 at 15:35
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    One thing the "no" answers are not taking into account is that the visa officer will have pulled you up on their computer. By saying that it never happened you will be contradicting the official record and then you are in trouble. It also might save you if they only have access to partial information, maybe they can see that you were denied but the reversal is not evident. – Ukko Mar 08 '18 at 15:38
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    @MadHatter There is a difference between forgetfulness and innocent mistake. A no answer would be reasonable in this case. https://tribunalsdecisions.service.gov.uk/utiac/2011-ukut-351 It would still be better if the OP mentioned this event in the additional info part of the application. –  Mar 08 '18 at 15:43
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    @greatone I'm not sure what the difference between forgetfulness and an innocent mistake is, because I can't quite conceive of non-innocent (ie, deliberate) forgetfulness. Nonetheless, you should of course fill out your visa applications as you see fit. For myself, I tend to declare everything I'm asked about, even if it seems to reflect poorly on me, and explain it when asked. I've not regretted that strategy yet, – MadHatter Mar 08 '18 at 15:45
  • @MadHatter The difference is that "forgetfulness" does not discharge the burden of proof on the balance of probabilities because everyone will claim that. An innocent explanation does meet that criteria. You can read more here (https://www.freemovement.org.uk/general-grounds-refusal-alleged-deception-innocent-mistakes/) –  Mar 08 '18 at 15:49
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    I think we may be getting into minutiae. I feel I can see a difference between the authorities you cite and those Gayot cited, and I am more persuaded by his in this case - but I do not think here is the right place to debate the issue. If you feel my advice is materially wrong, please write your own answer; otherwise, I don't intend to continue the debate here. – MadHatter Mar 08 '18 at 15:52
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    Such a clear and concise answer that is also very good! Your answer also applies to many situations in life where truth is important. Any sort of willful misrepresentation or willful omissions can be "looked upon with very little tolerance"... for example losing a job because of misrepresentation on a job application or resume... losing a relationship... government forms... court of law and many more. Or just in general losing someone's trust. – Trevor Boyd Smith Mar 08 '18 at 17:43
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    I want to note that there's a difference between a "reversal" and an "annulment" from the point of view administrative law. "Reversal" means an acknowledgement that an administrative act happened but that its effect has been reversed. "Annulment" means that the administration treats the annulled act as if it never happened (except for record keeping purposes). An example is the difference between a divorce which has the status of a reversal, and a marriage annulment. They have very different legal (and thus financial) consequences apart from the fact that the couple is no longer married. – David Foerster Mar 11 '18 at 10:22
  • @MadHatter: It's not so clear-cut to me. Imagine if they had asked it differently: "List every time you have applied for a visa, and check box A if it was granted, or box B if it was refused." Would you really check box B and avoid checking box A? Or A and not B? Or neither? Or both simultaneously?! (Yes, you could leave an extra note too, but that's not my question. I'm asking which box you would check.) To me it would be truthful to check box A, and I would say whatever box you would check would also qualify as a truthful answer to this question. – user541686 Mar 11 '18 at 22:29
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    @Mehrdad that is an interesting question. But since most immigration forms have space for a short explanation (UK forms certainly do), it is not this question, so I don't propose to address it. – MadHatter Mar 12 '18 at 11:49
  • It seems clear that OP should include the full explanation. But is there any reason to give the answer as “Yes (but the refusal was later overturned [+ more details])” rather than “No (visa was initially refused, but refusal was later overturned [+ more details])”? Both versions are fully clear and honest, and can’t be accused of any attempt to conceal anything; but “no” seems to be a more accurate overall one-word summary of OP’s visa record. – PLL Mar 12 '18 at 12:10
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    @PLL I think so (not least because the UK form only asks for explanations if you say "Yes", and it's never a good idea to give immigration the impression that you're not bothering to read the form) which is why I wrote my answer as I did. If you disagree, feel free to write your own. – MadHatter Mar 12 '18 at 12:45
  • @MadHatter: No, what I'm saying is that even if your response is "I would include an explanation" (which you can/should do here too), that is independent of the fact that you need to classify it as an acceptance or a refusal; you still have to do that in both scenarios, and your answer here is logically equivalent to what you would put there. Personally I would guess that they can't claim you were "deceptive" if you include a truthful explanation regardless of whether you say "yes" or "no", so you might as well say "no", and explain you received the visa after the refusal was overturned. – user541686 Mar 13 '18 at 00:00
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    @Mehrdad maybe it would, but this question is still not that question, so I still don't intend to address it. – MadHatter Mar 13 '18 at 00:02
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This is a legal question that needs to be answered by a professional as it depends on the legal details.

In essence, an overturning of a ruling can be "ab initio" or an annulment. In this case, the overturning establishes that, in a legal sense, the initial refusal never happened. In this case, the legally correct answer would be "no".

It can, however, also be a change or reversal, in which case the initial refusal happened, but was later retracted. In this case, the legally correct answer would be "yes", plus an explanation that the refusal was overturned.

Without a legal experts opinion on this question, I stand with MadHatter in that you should err on the side of caution, even if it means writing two additional sentences.

Tom
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You need to declare it.

The fact that the decision was overturned does not mean that the refusal never happened. The question about whether you have ever been refused a visa is quite clear.

For further explanation: this question is asked so that the Entry Clearance Officer can readily identify your past applications and confirm that you are the same person right there at the application stage - instead of having to wait until you provide fingerprints. A person can change their passport, and even change their name - but their fingerprint record will always match. Therefore they will know about your past application, whether you declare it or not. The declaration removes any possible ambiguity over whether you’re the same individual who matches a name/DOB search at the pre-fingerprint stage.

As others have pointed out, a positive declaration will not cause you trouble. They will be able to easily see what happened with the reversal of the decision. Moreover, as this new application is a subsequent application - being made from abroad - they will be able to see that you did in fact comply with the conditions of your previous visa by leaving the country.

Making the declaration, and adding a straightforward explanatory note, will not hinder your application.

Deliberately trying to conceal your previous refusal will likely result in a refusal, due to a deceitful application. The one thing Immigration Officers and Entry Clearance Officers frown upon most, is an attempt to lie to them.

Just be straight about it and you’ll have no problem.

Source: former Immigration Officer.

Chris Melville
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    This answer only seems applicable if the questioner is applying for a UK visa. For other countries the situation may be different, since the reviewers will not be able to look up what happened before, so providing an explanation would be crucial. – ajd Mar 09 '18 at 02:33
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    @ajd since the question is tagged uk, I would assume that the new/current application is for another UK visa. – Doktor J Mar 09 '18 at 18:03
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    I don't think the question "is quite clear", since in many contexts overturned decisions are legally treated as if they never happened. – CodesInChaos Mar 11 '18 at 10:52
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Your initial question and the highly upvoted answer imply you submitting another UK visa application. However, a comment you gave on that answer implies you applying for a third country’s visa. The UK case has been sufficiently (imho) covered by MadHatter’s answer; instead here I will focus on the third country case.

In general, I consider every visa application something whose approval is very important to me but not to the country I’m applying at. If I don’t receive a visa, there goes my holiday/business contract/conference/summer school/etc — these are very high risks to me personally. On the other hand, the country gets thousands or millions of applications annually. If they don’t accept you — well, that’s one visitor less but one we probably could have done without. Their high-risk case is accepting you as you could do all the things they want to prevent. (What exactly they want to prevent depends on the country; North Korea will have vastly different standards from the UK, to name to examples on different ends of the scale.)

Since it is me who wants the visa, I want to paint myself in the best colours when applying. However, there is a massive information imbalance between the country I’m applying at and me. They usually have access not only to the history of all visa applications posted to them but possibly also to parts of other countries’ databases. They have a secret service and maybe agreements with other countries for sharing information. This is especially the case for the Five Eyes, for which you should, as a rule, assume every one knows everything.

Now naively, I may assume that classifying the overturned refusal as never having happened would be a good thing. The argument is clear: the ‘expected’ answer to this question is a ‘no, I have never been refused’ and any variation of ‘yes’ may immediately raise eyebrows and harm your case. However, remember the information imbalance. It’s not unlikely for them to be able to ask the right people, pull up your information and note that there has been a refusal. Henceforth, they usually won’t care if it has been overturned later, they will see this as having proven you a liar. This damages your chances everywhere.

On the other hand, if you answer ‘yes, I have been refused somewhere previously’ and then proceed to briefly point out the details (i.e. that the refusal was overturned), this paints you as

  • being honest
  • probably actually a genuine visitor as another country revised its decision (rare)

Weighing the potential costs and benefits of both routes, I would very likely choose to declare the previous refusal along with the overturning and provide a (very!) brief description of the process. If there is no text field near the question, there may be one at the end of the application or I may append a supporting document.

I also read you saying

Why should I have to explain someone else's mistake?

Again, this is the risk imbalance that I outlined in the second paragraph. It is you who wants the visa and you have good reasons for it. You are potentially losing a great opportunity. The country you are applying to is losing a single visitor; something they probably can’t even write in a percentage — even if you are planning on bringing your family. They don’t care if you get the visa. But you do. So you want to explain any unclear circumstances.

Jan
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    That makes sense except for the fact that visa decisions in countries like the UK must be made in accordance with the rules. They have to care if the OP doesn't get the visa if the refusal will be against the rules. In fact, the OP's overturned refusal is proof that they do care. Even though they have taken away appeal rights for certain visa categories, the OP does have legal options if the decision is wrong in law. –  Mar 09 '18 at 07:35
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    Maybe I'm mentioning the obvious, but I feel like the OP's worry is that they'll see the "yes" answer and then just move on without carefully reading any explanations... – user541686 Mar 11 '18 at 07:43