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

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 previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach)by:

(a) Overstaying;

(b) breaching a condition attached to his leave;

(c) being an Illegal Entrant;

(d) 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);

unless the applicant:

(i) Overstayed for 30 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;

(ii) used Deception in an application for entry clearance more than 10 years ago;

(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;

(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of liability for removal, or no more than 6 months after the date on which the person no longer had a pending appeal or administrative review; whichever is the later;

(v) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago;

(vi) was removed or deported from the UK more than 10 years ago or;

(vii) left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 more than 5 years ago.

Where more than one breach of the UK’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.

A period of up to 90 days of overstay was permissible until a rule change on 6 Aril 2017. The rule is now that where the overstay period began before 6 April 2017 up to 90 days is permitted but where the overstay period began on or after 6 April 2017 only 30 days is permitted before the ban is imposed.

The phrasing extraordinarily is convoluted but a visual guide might help understand the way the rule works:

Some worked examples might also help.

Example 1

John made an application for a visitor visa. At the question “have you ever been refused a visa?”, he says “no”. In fact, he had been refused a visitor visa two years earlier. The Entry Clearance Officer will say that he has used deception in his application and refuse the application. In addition, John will be banned to a ten year entry ban starting from the date of the refusal.

Example 2

Maria had a student visa valid until 2 March 2014. She did not make an application before the expiry of her visa and, on 3 March 2014, she became an overstayer.

Scenario 1

Maria buys herself a ticket to return home on 5 March 2014. She will not be subject to any entry ban.

Scenario 2

Maria stays in the UK until 3 August 2014 (more than 90 days) without making any new application. On 3 August 2014, she is served with a removal notice. On 5 August 2014, she returns home through an Assisted Voluntary Return programme paid by the Secretary of State. She will be subject to a 2 year entry ban because she left at the expense of the Secretary of State but left within six months of her notice of removal.

Scenario 3

Maria had student leave valid until 3 March 2014 but on 1 March 2014, before the expiry of her leave, she made an application to extend her leave. This was refused and on 3 August 2014, she became “appeal right exhausted”.

On 3 August 2015, more than six months after she became appeal right exhausted, Maria returned home through an Assisted Voluntary Return programme paid by the Secretary of State. She will be subject to a 5 year entry ban because she left at the expense of the Secretary of State, more than six months after she became appeal right exhausted.

When does the ban period start?

The ban period will start on the date an individual left UK or, if there in the case of a 10 year ban following the use of deception in an application, from the date of the refusal of that application.

When do re-entry bans not apply?

Re-entry bans do not apply to applications made under:

  • Appendix FM (Immigration Rule A320)
  • Appendix Armed Forces (Immigration Rule B320)
  • EEA Regulations, namely applications for a European Family Permit

Under rule 320(7B), those who breached immigration law while they were minors will also not be subject to re-entry bans.

Finally, there are some exemptions for other groups of individuals. In particular, re-entry bans do not apply to those who:

  • Were not aware that the documents they submitted or the representations made with previous applications were false.
  • Those who have been issued with a visa despite a re-entry ban being in place.
  • Those who were in the UK without permission after 17 March 2008 but who left before 1 October 2008
  • Victims of trafficking.
  • Where a student was refused leave after 1 September 2007 solely on the basis that the made an out-of-time application.

One should bear in mind, however, that the individuals above (with the exception of those applying under the EEA Regulations), might still be caught by Immigration Rule 320(11), which gives the Secretary of State the power to refuse an applicant who has “previously contrived in a significant way to frustrate the intentions of the Rules” (i.e., as per Rule 320 (7B), an individual overstayed, breach the condition of their leave, was an illegal entrant or used deception in an application for leave, when “there are other aggravating circumstances”, such as absconding, making frivolous applications, not complying with a re-documentation process etc. This is a discretionary ground for refusal, i.e. the Secretary of State may decide whether or not to refuse an application on this ground.

Example 3

Robert overstayed for two years in the UK before returning home on 3 August 2014. He paid for his own ticket. Robert would normally be subject to a one year entry ban. However, he makes an application under Appendix FM to join his spouse in the UK on 3 September 2014. The Entry Clearance Officer may grant his application if he meets all the other requirements of Appendix FM. However, if Robert had also, for example, absconded and used the NHS without permission while he was in the UK as an overstayed, his application could be refused under paragraph 320 (11) of the Immigration Rules.

Example 4

Tania overstayed for two years in the UK before returning home on 3 September 2008. She will not be subject to a ban because she was in the UK without permission after 17 March 2008 but left the UK before 1 October 2008.

Can entry clearance be granted despite a re-entry ban?

Yes. Firstly, and as explained above, those who apply under Appendix FM, Appendix Armed Forces or the EEA Regulations will not be prejudiced by entry bans.

In addition, and for any other application, the Home Office’s guidance confirms that:

As with any application, an ECO needs to consider if there are any human rights grounds (in particular the right to family life under Article 8), or any exceptional, compelling circumstances which would justify the issue of an entry clearance. If there are exceptional, compelling circumstances the application must be referred to the referred cases Unit (RCU) for a decision to be made outside of the rules.

However, in this later case, it is unlikely that an application will be successful. The old but presumably still in place guidance on Leave Outside the Rules confirms that:

grants of such LOTR should be rare, and only for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option.

In practice, if there were exceptional circumstances or an individual had a strong Article 8 claim, it is more likely they would have applied for leave to remain or revocation of a deportation order when still in the UK.

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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