Contriving to frustrate

By On 5 June 2008 · 9 Comments · In Immigration rules, No return rule

Thanks for those who posted comments pointing the way to updated guidance to visa officers on the issue of contriving to frustrate immigration rules. The guidance is here and reads as follows:

‘Contrived in a significant way to undermine the intentions of the immigration rules’ is where an applicant has previously been an illegal entrant, overstayed, breached a condition attached to his leave or used deception in a previous entry clearance, leave to enter or remain application, but only where there are aggravating circumstances. Aggravating factors include offences such as not complying with reporting restrictions, using multiple identities, a sham marriage, harbouring an immigration offender and facilitating/people smuggling. This is not an exhaustive list and all cases must be considered on their merits taking into account family life in the UK and the level of responsibility for the breach in the case of children. ECOs will need to obtain ECM authorisation for all refusals under Paragraphs 320(7A) and 320(7B) of the immigration rules.

Simple overstaying would certainly not be caught by this definition. Overstaying by using a false identity, entering a sham marriage and other ‘aggravating’ circumstances might well be caught, but even then family life with family members in the UK has to be considered. On an appeal, the Asylum and Immigration Tribunal would be able to review the way in which the ECO exercise discretion and make a decision for itself about whether the behaviour was so bad that a visa should be refused.

Essentially, it is a face-saving measure, as those caught by the definition might well have been refused under the old rule 320 provisions anyway.

I like the comments pointing out that it is often the Home Office that contrive to frustrate the immigration rules. There is a great deal of truth in this and I’ve come across some appalling cases of gross mismanagement but also highly dubious conduct. Only this week a Home Office Presenting Officer in a deportation case asked why the Home Office should have to disclose an updated new risk assessment that helped my client’s case, and I’ve just been looking at a bail application file where the Home Office has just been proven to have lied about progress in removing a person from the UK.

 
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9 Responses to Contriving to frustrate

  1. loni says:
    5 June 2008 at 9:04 pm

    I change my name when I came to London and my date of birth and never didn’t have any problems ever I never haven’t been evolved any problem so my case was still pending as asylum sicker ,so I want it to go back with my fiancé now is my wife I jest want it to tell the truth and to come clean I apply for suppose visa and I have been refuse because of new law 320(7b) .now they saying no return rule . and will effect me this what it is writing on 5 June 2008 Contriving to frustrate or not and do you think I could call the embassy ask to review the decision ?
    And I want to say thank you to free movement you are great you doing amazing job informing people
    Thanx
    Loni

  2. freemovement says:
    6 June 2008 at 7:00 am

    Thanks, Loni, but I can’t give legal advice on this website.

  3. michelle says:
    7 June 2008 at 10:32 am

    Freemovement do you think previous deception is under the significantly contrived rule?

  4. anton says:
    8 June 2008 at 5:58 am

    i breached the condition by working more than 20 hours and been overstaying. will this count for contrive to frustate. i overstayed because having exams and now i passed entering into MSc stage from PGDiploma and wants to leave and come back with student visa again to finish my MSc. could somebody give some legal representative information so that i can get advice before i leave . you can send to my mail id [email protected]

  5. freemovement says:
    9 June 2008 at 3:19 pm

    Michelle, previous active deception would almost certainly be contriving to frustrate. However, a lot of ECOs were in the past very slow to use the general grounds for refusal so even when people arguably should have had visas refused for one of those reasons, it wasn’t happening. Anton, I doubt that over working and over staying amount to contriving to frustrate, but you should take legal advice, I don’t know enough about your case and will not give personal legal advice here.

  6. Changes to immigration rules « Free Movement says:
    18 June 2008 at 9:39 am

    [...] ← Contriving to frustrate Reviews of ECO decisions [...]

  7. Margaret says:
    3 July 2008 at 10:53 am

    I have my husband who was living in the UK illegal and when we got married he went back to his home country to apply for a spouse visa. On the application he stated that he has never been to the UK, so he was refused because of that. He was then told to appeal of which he did and appologised for lying in his first application. I am just wondering what are the chances of him geting the visa now. I miss him so much.

  8. visaissues says:
    10 September 2008 at 5:03 am

    Please can you post where this guidance is on the official websites? Thank you

  9. sandysussie says:
    2 October 2008 at 3:01 am

    i had my baby in the uk in 2002 on a compassionate ground as a family member of an eligible person (British citizen) who was trying to settle in the uk at that time. we decided to come over there a year after our wedding due too much interference from his family. it was so bad that it was affecting my health and that of our unborn baby. we had to run away from them. unfortunately, things never worked out fine. after a while, we left the uk.

    i have visited the uk many times after then. in december 2008, applied for an entry clearance but it was refused in march 2008. the eco did not recognise my husband a british national or my sponsor so he refused it based on 41 (vi) and (vii) and 320 (11). i appealed against his decision. any hope for me?