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

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 320(11): contriving to frustrate the intentions of the rules

Paragraph 320(11) of the Immigration Rules is a discretionary ground for refusal. It provides that entry clearance or leave to enter the United Kingdom should normally (but not always) be refused:

where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:

  1. breaching a condition attached to his leave; or
  2. overstaying; or
  3. being an illegal entrant; or
  4. using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);

and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.

Appendix V for visitors includes a similar refusal paragraph at paragraph V 3.8.

The “contriving to frustrate” rule imposes a three-stage test:

  1. First of all, did the applicant breach immigration laws in one of the specified ways;
  2. If so, are there additional “aggravating circumstances”;
  3. If so, the decision maker still needs to consider whether to refuse; refusals under this paragraph of the rules are not mandatory.

To reiterate, even where a person has previously contrived in a significant way to frustrate the intentions of the Immigration Rules, he or she might still be admitted to the UK.

In practice it is very rare for an entry clearance official to grant a visa to a person who is considered to have badly breached immigration laws in the past. Paragraph 320(11) seems to be treated by officials as if it were a mandatory refusal paragraph.

There are two problems with this approach. Firstly, it is unlawful. Secondly, it may lead to a permanent ban from the UK for an affected individual, which is of comparable seriousness to having been convicted of a serious criminal offence. Contriving to frustrate the rules may be serious, but it is not as serious as a prison sentence of four years or more, which attracts a permanent ban under paragraph 320(2)(b) of the rules.

Immigration law breaches that might trigger refusal

When considering an entry clearance application, immigration officials will carefully consider whether an applicant has engaged in what officials call “adverse behaviour.” As well as looking at the information presented in the application itself, officials are instructed always to perform the standard Home Office checks, which are:

  • Home Office security checks
  • other security checks
  • Police National Computer (PNC)
  • internal Home Office systems
  • information on the application form

In the Rules, the list of immigration law breaches which might potentially constitute “contriving to frustrate the intentions of the Rules” is a finite and exhaustive list. It is:

  1. breaching a condition attached to his leave; or
  2. overstaying; or
  3. being an illegal entrant; or
  4. using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);

If a behaviour by the person concerned is not listed here then paragraph 320(11) is not engaged at all.

To put it another way, these behaviours represent the minimum required to trigger a refusal under paragraph 320(11). However, they are not sufficient to justify refusal without more. Paragraph 320(11) goes on clearly to state that “aggravating circumstances” are also needed as well.

The Home Office guidance Frustrating the intentions of the Immigration Rules: RFL07, paragraph 320(11) confirms this:

It is not sufficient to have been in breach of immigration law or to be an immigration offender. There must be aggravating circumstances as well.

We turn to aggravating circumstances in a moment.

Receiving “services or support to which they were not entitled”

Strangely, Home Office guidance on paragraph 320(11) does not reflect the terms of the Immigration Rules themselves.

Policy document Frustrating the intentions of the Immigration Rules: RFL07, paragraph 320(11) advises entry clearance officers on this issue. It begins:

When can I refuse under 320 (11)?

This is a discretionary refusal where an applicant has:

  • been an immigration offender or in breach of UK immigration or other law; and / or
  • received services or support to which they were not entitled;

and where there are aggravating circumstances.

It is not sufficient to have been in breach of immigration law or to be an immigration offender. There must be aggravating circumstances as well.

Policy document General grounds for refusal Section 2 – version 27.0 says the same thing.

In fact there is no basis in paragraph 320(11) for refusing on the basis that the application “received services or support to which they were not entitled”.

It may be the case that where the person was an overstayer they also received services or support to which he or she was not entitled or that he or she received services or support to which he or she was not entitled in breach of a condition of leave.

The services or support listed by the Home Office policy documents include:

  • asylum benefits
  • state benefits
  • housing and housing benefits
  • tax credits
  • employment
  • goods or services
  • NHS care using an assumed identity or multiple identities or to which not entitled.

These are said to be examples.

A correct analysis might be to say that these are not themselves trigger behaviours for a refusal under pafragraph 320(11) but if the applicant has committed one of the actual trigger behaviours, such as overstaying, then receiving services or support to which he or she was not entitled might be considered an aggravating circumstance.

Aggravating circumstances

Even when paragraph 320(11) is engaged because the applicant previously breached immigration rules in one of the specified ways, the Entry Clearance Officer needs to decide whether there were “aggravating circumstances.”

The natural meaning of the words makes clear that it must be something serious in addition to the trigger behaviour of breaching the rules in of the specified ways. This is reinforced by the rules themselves, which set out some non exhaustive examples of what might be counted as circumstances which are aggraviting:

absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process

This examples are all relatively serious forms of breaches of immigration law.

Home Office policy builds on these examples and adds various other types of behaviour the Home Office considers comparable. These include:

  • absconding;
  • not complying with temporary admission / temporary reporting conditions / bail conditions;
  • not complying with reporting restrictions;
  • failing to comply with removal directions (RDs) after port refusal of leave to enter (RLE);
  • failing to comply with RDs after illegal entry;
  • previous working in breach on visitor conditions within short time of arrive in the UK (that is, pre-meditated intention to work);
  • previous recourse to NHS treatment when not entitled;
  • previous receipt of benefits (income, housing, child, incapacity or otherwise) or NASS benefits when not entitled;
  • using an assumed identity or multiple identities;
  • previous use of a different identity or multiple identities for deceptive reasons;
  • vexatious attempts to prevent removal from the UK, for example, feigning illness;
  • active attempt to frustrate arrest or detention by UK Visas and Immigration or police;
  • a sham marriage / marriage of convenience / polygamous marriage in the UK;
  • harbouring an immigration offender;
  • facilitation / people smuggling;
  • escaping from UK Visas and Immigration detention;
  • switching of nationality;
  • vexatious or frivolous applications;
  • not complying with re-documentation process.

The guidance goes on to confirm that Entry Clearance Officers need to

All cases must be considered on their merits, the activities considered in the round to see whether they meet the threshold under paragraph 320 (11), taking into account family life in the UK and, in the case of children, the level of responsibility for the breach.

Unhelpfully, the guidance does not give officials any explicit encouragement to grant cases on this basis.

Example 1

George entered the UK on a student visa valid until 1 October 2015. He did not make any application to renew his leave. On 1 November 2015, he returned home, paying for his own ticket.

George has overstayed in the UK, and therefore meets the first stage of the test under paragraph 320(11). However, if there are no aggravating circumstances and, a part from the period of overstay, George has always complied with the conditions of his student leave, hasn’t broken the law etc, he will not meet the second stage of the test. If he makes a new application to enter the UK, therefore, his application should not be refused under paragraph 320(11) of the Immigration Rules.

Example 2

Nancy entered the UK unlawfully on 12 March 2014. She is an illegal entrant and therefore meets the first stage of the test under paragraph 320(11). Nancy never had valid leave while in the UK. On 5 May 2014, she is caught by an immigration officer and given reporting restrictions; she needs to sign at Becket House every other Thursday. Nancy never reports at Becket House. She then submits an application for leave using a false identity. This application is refused and Nancy is given removal directions on 1 September 2014. She ignores them and remains in the UK until 1 November 2016, when she decides to return home.

It is likely that any new application for a visa that Nancy submits will be refused under paragraph 320(11) because Nancy has contrived to frustrate the intentions of the rules, and there are aggravating circumstances (failure to report; assumption of a different identity; non-compliance with removal directions). Nancy’s family life in the UK should, however, be taken into consideration when making this refusal. It is likely that only a very strong family life (for example, a British child with a British father who lives in the UK) will mean that Nancy is allowed return to the UK.

Dealing with refusals under paragraph 320 (11)

Although paragraph 320(11) is a discretionary ground for refusal, in the current climate, it is likely that Entry Clearance Officers will use it whenever they can to refuse applications. Officials at certain entry clearance posts, including India, Pakistan and Bangladesh, are if anything rather over-eager to refuse under paragraph 320(11), even where the behaviour seems to lack the “aggravating circumstances” required by the rules.

Paragraph 320(11) can be particularly harsh. This is for three key reasons:

  1. Firstly, paragraph 320(11) applies to absolutely everyone, including family applicants under Appendix FM (except, of course, in applications under European law).
  2. Secondly, the fact that an applicant was a child when they breached immigration rules will be taken into consideration, however that again does not automatically mean that previous breaches of immigration law will be disregarded, unlike paragraph 320(7A).
  3. Thirdly, paragraph 320(11) does not have time limits, unlike paragraph 320(7A). It is in theory a permanent exclusion from the United Kingdom.

Once a person has been refused under paragraph 320(11) it will be rare for officials to change their mind on the basis of further representations, new evidence or a new application. A refusal is likely to stand for a prolonged period, probably forever.

Where a clear mistake has been made by officials, a complaint may be worthwhile but in most cases it will often be necessary to bring a legal challenge. Where the person refused entry is a family member, there will usually be a right of appeal to the immigration tribunal on human rights grounds. In other cases where there is no right of appeal, an application for judicial review will be necessary.

Helpful cases

There are a small number of cases that might help applicants refused under paragraph 320(11) on the grounds of contriving to frustrate the intentions of the rules.

JC (Part 9 HC395) – burden of proof) China[2007] UKAIT 00027

This case ruled that

In relation to all of the general grounds the burden of proof is on the decision-maker […] to establish the facts relied upon” (paragraph 10)

The Entry Clearance Officer, therefore, will bear the burden of proof to show that an applicant should be refused, rather than an applicant needing to prove that he or she should not be refused. What this means in practice is that an applicant does not have any positive obligation to disclose matters which would prejudice his or her case, provided he or she never deceives (or they could be subject to a 10-year entry ban). Unless the application form specifically asks for it, therefore, an applicant would not need to disclose, for example, that they previously entered into a sham marriage.

PS (paragraph 320(11) discretion: care needed) India[2010] UKUT 440 (IAC)

In this case, the judge said:

In exercising discretion under paragraph 320(11) […], the decision maker must exercise great care in assessing the aggravating circumstances said to justify refusal and must have regard to the public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance. (my emphasis)

In the tribunal’s conclusions Kenneth Parker J elaborated:

The Entry Clearance Officer, in making the decision of refusal, refers nowhere to the guidance under paragraph 320(11).  It is therefore wholly unclear whether the Entry Clearance Officer has addressed his mind to the relevant question, namely whether in the circumstances of this case Mr S’s breach of UK immigration law was sufficiently aggravating so as to justify the refusal.  It seems to us that the Entry Clearance Officer should have specifically recognised that Mr S had voluntarily left the United Kingdom more than 12 months ago with a view to regularising his immigration status.  […]  If the aggravating circumstances are not truly aggravating there is in this context a serious risk that those in the position of Mr S will simply continue to remain in the United Kingdom unlawfully and will not seek to regularise their status as he has sought to do.  The effect then is likely to be counter-productive to the general purposes of the relevant rules and to the maintenance of a coherent system of immigration. (my emphasis)

It further states that

Mr S had made a claim under Article 8 which, standing alone, may not have been very strong.  Nonetheless the family circumstances needed to be evaluated carefully in the balancing exercise to which we have referred.

This case is helpful in that it confirms that

  1. When deciding of an application, the Entry Clearance should look favourably at the fact that an applicant decided to leave the UK and submit a new application to regularise their status.
  2. Family circumstances need to taken into account when deciding of an application.

ZH (Bangladesh) v SSHD [2009] EWCA Civ 8

In this case, the Court of Appeal observed that illegal working was part and parcel of illegal residence and did not exclude success under a rule designed to regularise some such persons. Presumably, one could apply this case to argue that illegal working should not be considered an aggravating circumstance, but simply goes to show that stage 1 of the test is met.

The guidance suggests that Entry Clearance Officers would agree with this argument, as it specifies that an aggravated circumstances for illegal work is when it is “in breach on visitor conditions” and “within short time of arrive in the UK (that is, pre-meditated intention to work)”. Had it wanted to catch all instances of unlawful work, the guidance would simply have said “previous illegal work”.

Example 3

Luis was an overstayer in the UK between January 2014 and January 2016. In January 2015, he meets Paul, a British citizen, and they enter in a relationship. They get engaged in December 2015.

Having taken legal advice, in January 2016, Luis decides that he will return home and apply for a visa to enter the UK as Paul’s fiancé.

While in the UK as an overstayer, Luis had access to housing benefits, despite not being entitled to them. Luis worked at all times in the UK.

Firstly, it is possible that the Entry Clearance Officer will not know of the aggravating circumstances in this case, in particular the fact that Luis accessed benefits. Unless asked in the application form, Luis has no obligation to disclose that he received benefits and worked in the UK.

In addition, when submitting the application on behalf of Luis, his legal representatives may want to consider making the following representations for why his application should not be refused under paragraph 320(11):

  • Luis should be given credit for having decided to regularise his status by leaving the UK and applying for Entry Clearance.
  • The disruption of Luis’ family life with Paul should be taken into consideration by the Entry Clearance Officer when deciding of the application.
  • Luis’ work alone should not be treated as an aggravating circumstance in this application.
Nath Gbikpi
Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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