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No return rule to be modified

No return rule to be modified

There have been a number of interesting announcements by UKBA today, which I will add to the blog once I’ve had time to digest and consider. Most of them surround child detention and what is now being termed the ‘family returns process’.

The first I’ll cover is a discrete issue, a change to the general grounds for refusal re-entry bans. It will become effective on 6 April 2011 by a Statement of Changes to be laid before Parliament on 15 March. The changes are described as follows:

There will be a new, lesser two year ban for those who voluntarily leave the UK promptly at public expense rather than the existing 5 year ban. The existing 5 year ban will continue where illegal migrants fail to depart within 6 months of the conclusion of any appeal against their immigration decision. We believe that the introduction of this new lesser ban will help to build compliance, lead to growth in the number of voluntary departures and encourage early take up of Assisted Voluntary Return programmes. The changes to the immigration rules will be laid before Parliament on 15 March and will take effect on 6 April.

These sound like mildly sensible changes as they reduce the current disincentive to make a voluntary departure. They do not remove the disincentive altogether, though, but arguably strike a better balance between penalising non-compliance and promoting compliance.

As a lawyer, I wonder whether UKBA will take the chance to re-draft paragraph 320(7B) completely to make the meaning clear. The connection between the defaulting activity at subparagraphs (a) to (d) and the penalty exceptions at (i) through (v) has always been confused. For example, can subparagraph (i) be applied to any of (a) to (d)? Maybe, but maybe not, it could be much better drafted.

The changes do not address excessive use of paragraph 320(11) by some Entry Clearance Officers. This is not so much a problem with the way the rules are drafted, though, more with over-zealous staff at some posts who seem determined to punish previous breaches of immigration control no matter what the current circumstances. I would still be reluctant to recommend going abroad to make an entry clearance application rather than an in-country one, despite it being theoretically the right thing to do.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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