New Home Office policy: Exclusion from the UK

Important if dealing with cases involving exclusion from the UK: This guidance has been completely re-formatted and deals with the exclusion of both non-Economic European Area (non-EEA) nationals and European Economic Area (EEA) nationals and their family members. It replaces Exclusion decisions and exclusion orders guidance which has been archived. It includes: advice on the Authority to Carry Scheme 2015 explanation of unacceptable behaviour updated guidance on rights of appeal advice on notification of decisions advice on excluding EEA nationals or their family members under the Immigration (European Economic Area) Regulations 2016 advice on deprivation of citizenship in exclusion cases Just after we put out a detailed post and new course…

4th May 2017 By Colin Yeo

General grounds for refusal: criminal convictions, public good, character, conduct and associations

Criminal convictions and other signs of poor character can, unsurprisingly, negatively affect applications for leave to enter or remain in the UK. This has always been so, but in December 2012 the rules were changed to permanently ban entry of those with serious convictions, other than in certain very narrow circumstances, and to impose entry bans of various lengths in other cases. Those caught out by these rules include former boxer Mike Tyson, Duane “Dog the Bounty Hunter” Chapman, Tyler, the Creator and perhaps OJ Simpson. By their nature, blanket rules can give rise to harsh results, individual hardship and injustice. Some of those convicted of criminal offences, including some…

6th April 2017 By Colin Yeo

General grounds for refusal: alleged deception and innocent mistakes

Making a mistake on an immigration application form can be disastrous. If the mistake is interpreted by officials as an attempt to mislead or deceive, the application will inevitably be refused. If the application was for entry clearance, it will also lead to a 10 year ban on re-entry to the UK. There are a number of relevant court cases and Home Office policies that can help if such a situation does arise, although of course it is far, far preferable to avoid such a problem in the first place. What are the Immigration Rules on deception? Automatic refusals There are two key effects of a finding of deception by an…

28th March 2017 By Colin Yeo

General grounds for refusal: contriving to frustrate the intention of the rules

Sometimes a migrant here in the UK unlawfully will want to apply for immigration status. Lawyers and the Home Office often call this “regularising” their status, because the person becomes a “regular” migrant within the rules rather than an “irregular” one outside the rules. One of the ways to do this is by leaving the country and making an application for Entry Clearance from outside the UK. Changes to the immigration rules, however, have made it successively harder and harder to acquire lawful status after being unlawfully present in the UK. One of the provisions that make this particularly hard is contained in paragraph 320 (11) of the Immigration Rules. Paragraph…

14th March 2017 By Nath Gbikpi

General grounds for refusal: understanding re-entry bans for past breaches of immigration rules

The Home Office can impose entry bans to individuals who have previously breached immigration law or used deception in their applications for leave. Bans can last 1 year, 2 years, 5 years or 10 years. Generally speaking, and except for some minor exception, an individual will not be allowed to re-enter the UK during the length of the ban. That all sounds straightforward, however the rules regarding re-entry bans are much more complex than that, so let’s try to disentangle them. Re-entry bans: what periods apply when? The relevant rules relating to entry bans are at paragraphs A320 and 320(7B) of the Immigration Rules. Paragraph 320 (7B) reads: where the applicant has…

10th March 2017 By Nath Gbikpi

General grounds for refusal: owing a debt to the NHS

On 6 February 2017, the government announced that new regulations will come into force in April 2017, requiring all hospitals to check whether patients are eligible for free NHS treatment and, if not, to charge them upfront for non-urgent, planned care. This is part of “plans to recover the cost of health treatments provided to patients not ordinarily resident in the UK”, with the government aiming at recovering up to £500 million a year from overseas visitors not eligible for free care by 2017-2018. The Immigration Health Surcharge, introduced in April 2015, is also part of this “master plan”; according to the Department of Health, it generated £164 million in…

28th February 2017 By Nath Gbikpi

Rule imposing mandatory refusal for deception is not ultra vires says Court of Appeal

Rule imposing mandatory refusal for deception is not ultra vires says Court of Appeal. Unsurprisingly. A student was convicted for driving with excess alcohol and also for driving without due care and attention. He was made subject to a community order with an unpaid work requirement and a requirement to attend a drink-drive rehabilitation course. He failed to disclose this when he applied to extend his leave. His application was refused under paragraph 322(1A) of the Immigration Rules, which provides that an application must be refused: 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…

12th February 2016 By Colin Yeo

Past deception to obtain Indefinite Leave to Remain may lead to status being revoked

The case of Huang & Ors, R (on the application of) v Secretary of State for the Home Department (“No Time Limit” Transfer: Fraud) (IJR) [2015] UKUT 662 (IAC) arises from the provision of false or incorrect identity information by asylum seekers who were initially refused asylum but who were then never removed and were later granted status under the Legacy amnesty backlog clearance programme. 

12th January 2016 By Colin Yeo

Discretionary and mandatory general grounds for refusal

In the rather odd recently reported case of Iqbal (Para 322 Immigration Rules) [2015] UKUT 434 (IAC) the President makes the point that some of the general grounds for refusal are mandatory (“shall be refused”) and some are discretionary (“should normally be refused” or “may be curtailed”). This is such basic immigration law it is a bit alarming to see a reported Presidential determination apparently devoted to it. The other point made is that the words “legitimate expectation” should not lightly be bandied about. The First-tier judge in this case had rather unwisely used the words but from the context clearly did not intend to invoke the legal principle. The official…

1st September 2015 By Colin Yeo

Court of Appeal upholds exclusion from UK of anti Muslim speakers at English Defence League rally

The case of R (On the Application Of Geller & Anor) v The Secretary of State for the Home Department [2015] EWCA Civ 45 was an application to the Court of Appeal against a refusal by the Upper Tribunal to grant permission for judicial review by Pamela Geller and Robert Spencer, the founders ‘Stop Islamization of America’, referred to by the Secretary of State as an anti-Muslim hate group. This contributor was previously unaware of Geller and Spencer’s work, but after 5 minutes on YouTube was in rare agreement with the Secretary of State. They had planned to visit the UK in the aftermath of the murder of Drummer Lee Rigby,…

10th February 2015 By Andrew Eaton

Mike Tyson refusal: what are the rules on previous convictions?

Mike Tyson has just been refused entry to the UK because of his previous conviction for rape (The Bookseller, The Guardian, BBC). He was due to promote his new book but his agents were unaware of the change to immigration rules, which occurred quietly in December 2012. I thought it might be worth highlighting the rules themselves and the rather curious and revealing policy behind them. After all, many people are convicted of criminal offences, including some people later revered, who redeem themselves in some way or who are convicted in dubious or exceptional circumstances. Blanket rules by their nature can cause individual hardship and injustice.

11th December 2013 By Colin Yeo

Two tribunal cases on deception

In the case of Mumu (paragraph 320; Article 8; scope) Bangladesh [2012] UKUT 143 (IAC) Judges of the Upper Tribunal Storey and Lane have dismissed an appeal against a refusal under paragraph 320(7A) of the Immigration Rules. This reads as follows: (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 had not been disclosed, in relation to the application. The tribunal finds, perhaps rather unsurprisingly given the text of the rule, that the deception need not be that of the applicant and dismisses the case under the Immigration…

23rd May 2012 By Free Movement

Yet more Tribunal decisions

After what felt like something of a hiatus early in the year, the tribunal has been churning out new reported cases in recent months as if there was no tomorrow. As far as I know no-one has suggested scrapping the Immigration and Asylum Chamber YET, although it is surely only a matter of time! September’s batch follows below, with the official headnotes inset and in italics and any commentary by Free Movement in normal text before the headnote. With some of these, one wonders what cases aren’t reported these days. However, highlights include two from El Presidente, one in which Treasury hotshot James Eadie QC, normally reserved for serious terrorism…

4th October 2011 By Free Movement

Meaning of ‘false representation’: AA Nigeria case

The Court of Appeal has adopted a helpfully limited approach to the meaning of ‘false representation’ in Immigration Rules 320(7A) and 322(1A), restricting it to cases of deliberate falsehood rather than accidental mistake. The case is AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 and the outcome is completely opposite to the tribunal’s consideration of the same issue in FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC). It really is remarkable how often the tribunal adopt the most restrictive possible interpretation and how often the higher courts disagree. It rather starts to call into question the judgment of some senior members of…

13th July 2010 By Free Movement