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.