Liam Byrne, the Immigration Minister, has written to the Immigration Law Practitioners Association (ILPA) with some further clarification on the no return amendment to paragraph 320 of the immigration rules (see here, here and here for previous posts on this). There are no shocks, really, but he does rather usefully say that a previous breach of immigration laws will not be held against someone if they were later granted leave. The example he gives is a student who overstayed previously but despite this was granted leave by the Home Office.
The letter reiterates that the concession announced in Parliament only applies to those who were in the UK on 17 March 2008.
Not to put too fine a point on it, this is bonkers. It penalises anyone who left before 17 March to try and sort out their immigration position and benefits thoe who hung on in the UK. I’ve already had a few queries about this and there is a strong argument that a visa should be granted on human rights grounds. As no Entry Clearance Officer has ever knowingly granted a visa on this basis, as far as I am aware, anyone in this position will need to apply for a visa, get refused, wait six to nine months for an appeal, hopefully win their appeal, and then wait for a further three months for the ECO to grant the visa. Or, as long as they went voluntarily and at their own expense, they could save themselves the stomach ulcer and wait a year before applying. The length of time an appeal takes defeats the object of having the right of appeal in the first place.
It may seem unfair that a person who leaves the UK under one set of rules with certain expectations then has to apply to come back under a new, different set of rules. Not for immigration lawyers, though; the rules change pretty much every fortnight so this happens all the time. It does seem genuinely unfair that the case of a person who applied before 1 April is decided under rules introduced later. In a piece of rather unfortunate timing, the Court of Appeal decided only last Friday that this is perfectly lawful, however, in a case called Odelola v Secretary of State for the Home Department. It concerns different immigration rules but the principle applies to rule 320(7B).
This may seem to be at odds with the recent Highly Skilled Migrant Programme case, but that case was decided on the basis of legitimate expectation, an argument that was considered untenable in Odelola. In the HSMP case there were various pieces of guidance that could be said to create a legitimate expectation that the same rules would be applied, but there is no equivalent in the case of rule 320(7B).
So, what to do? As far as I can see, there is no easy effective remedy for those who left the UK before 17 March and are having their applications decided under the new no return rule. There have been suggestions in some cases that visa officers have cynically put applications on hold in order to apply the new rule after 1 April, and I have to say that this would not surprise me. For those with evidence of a deliberately delayed decision or suffering real hardship (for example they have children in the UK) it may be worth investigating urgent judicial review proceedings in the High Court on the basis that an appeal to the Asylum and Immigration Tribunal is not an adequate remedy. Such a case would also be suitable for arguing the human rights of the family left behind in the UK, which cannot normally be argued in the immigration courts.