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Rule 320 case law

Rule 320 case law

The first case I’ve seen dealing with the notorious Immigration Rule 320 no-return provisions came out shortly before Christmas, although judgment was actually handed down ages ago, in April 2009. The case is MA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 1229.

Lord Justice Ward confirms the effect of rule 320(7B):

24. If [the appellant] goes voluntarily — and that is not at the expense of the Secretary of State — then 12 months will have to pass before he can apply for permission to get back here. If he leaves voluntarily — but the Secretary of State has to pay for it — then he has to wait five years before he can apply. If he is removed or deported, then he will not be allowed back for ten years. It is agreed that if he applies and is refused he can raise human rights arguments to contest that refusal.

Ward LJ goes on to find that it is an error of law not to take account of the effect of rule 320 in preventing physical visits to the UK in assessing whether removal amounts to a disproportionate interference with family life. The facts were strong, as the appellant had been in the UK since the age of 14 and many family members were based in the UK. No crimes had been committed and one would have thought that this is exactly the sort of case that ought to succeed, especially following the subsequently reported JO (Uganda).

The Court of Appeal is very critical of the process of reconsideration and the appalling delay that it had led to in this case:

The history fills me with such despair at the manner in which the system operates that the preservation of my equanimity probably demands that I should ignore it, but I steel myself to give a summary at least…

[potted history of case follows]

…I ask, rhetorically, is this the way to run a whelk store?

There have been other recent cases where the Court of Appeal has also criticised the reconsideration process, or at least the way that it is implemented. It is a classic example of immigration lawyers and ILPA telling everyone that it was a very bad idea but it happening anyway, only to be ignominiously abandoned a couple of years later – there’s only two weeks to go now, in fact. If only the Home Office listened to us, there would be a lot less work around for immigration lawyers.

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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