New Home Office policy: Exclusion from the UK

Important if dealing with cases involving exclusion from the UK: This guidance has been completely re-formatted and deals with the exclusion of both non-Economic European Area (non-EEA) nationals and European Economic Area (EEA) nationals and their family members. It replaces Exclusion decisions and exclusion orders guidance which has been archived. It includes: advice on the Authority to Carry Scheme 2015 explanation of unacceptable behaviour updated guidance on rights of appeal advice on notification of decisions advice on excluding EEA nationals or their family members under the Immigration (European Economic Area) Regulations 2016 advice on deprivation of citizenship in exclusion cases Just after we put out a detailed post and new course…

4th May 2017 By Colin Yeo

General grounds for refusal: criminal convictions, public good, character, conduct and associations

Criminal convictions and other signs of poor character can, unsurprisingly, negatively affect applications for leave to enter or remain in the UK. This has always been so, but in December 2012 the rules were changed to permanently ban entry of those with serious convictions, other than in certain very narrow circumstances, and to impose entry bans of various lengths in other cases. Those caught out by these rules include former boxer Mike Tyson, Duane “Dog the Bounty Hunter” Chapman, Tyler, the Creator and perhaps OJ Simpson. By their nature, blanket rules can give rise to harsh results, individual hardship and injustice. Some of those convicted of criminal offences, including some…

6th April 2017 By Colin Yeo

General grounds for refusal: alleged deception and innocent mistakes

Making a mistake on an immigration application form can be disastrous. If the mistake is interpreted by officials as an attempt to mislead or deceive, the application will inevitably be refused. If the application was for entry clearance, it will also lead to a 10 year ban on re-entry to the UK. There are a number of relevant court cases and Home Office policies that can help if such a situation does arise, although of course it is far, far preferable to avoid such a problem in the first place. What are the Immigration Rules on deception? Automatic refusals There are two key effects of a finding of deception by an…

28th March 2017 By Colin Yeo

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…

14th March 2017 By Nath Gbikpi

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…

10th March 2017 By Nath Gbikpi

Meaning of “false” document and the difference between visiting and inspecting

In Begum (false documents and false statements) [2015] UKUT 00041 (IAC) we are educated by the tribunal as to the difference between a “visit” and an “inspection” and the blameless appellant is refused entry and perhaps banned from further entry for 10 years. Some might think the case just a little harsh. An professional inspector of properties had visited a house in a private capacity. He later produced a letter in a professional capacity stating that he had “inspected” that house. The tribunal decided that this amounted to a false statement and therefore that the document was a false document and therefore that the application for entry clearance fell to…

3rd February 2015 By Colin Yeo

Conditional discharge is not a conviction. Duh.

Omenma (Conditional discharge – not a conviction of an offence) [2014] UKUT 314 (IAC) is an interesting case for two reasons. Firstly, the Home Office accepted that the decision was wrong and withdrew it. Nevertheless, because the case had reached the Upper Tribunal, the withdrawal of decision did not automatically deprive the Upper Tribunal of jurisdiction, and it went on to determine the appeal anyway. The actual reason for it being reported is that the appellant had answered “no” to the standard visa application form question about previous convictions. In fact she had pleaded guilty to shoplifting some years previously and been given a conditional discharge. Was she dishonest in her…

18th July 2014 By Colin Yeo

Two new cases on dishonesty in immigration applications

The first of these is a useful short case that came out while I was away called Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 (IAC). It is another example of an applicant with a driving conviction who ticked the ‘no’ box to the question about previous convictions standard on all immigration application forms. As previously discussed, even Home Office policy guidance recognises that mandatory refusal is not necessarily justified on such facts. In this case the applicant’s evidence was that she did not realise she had been convicted because she had not received any further communication from the police about her case. As is standard in paper appeals, the Home Office…

10th June 2014 By Colin Yeo

Mike Tyson refusal: what are the rules on previous convictions?

Mike Tyson has just been refused entry to the UK because of his previous conviction for rape (The Bookseller, The Guardian, BBC). He was due to promote his new book but his agents were unaware of the change to immigration rules, which occurred quietly in December 2012. I thought it might be worth highlighting the rules themselves and the rather curious and revealing policy behind them. After all, many people are convicted of criminal offences, including some people later revered, who redeem themselves in some way or who are convicted in dubious or exceptional circumstances. Blanket rules by their nature can cause individual hardship and injustice.

11th December 2013 By Colin Yeo

Document Verification Reports are not secret materials

Where an immigration official alleges that a document used in an application is false or forged, a ‘Document Verification Report’ (DVR) is routinely prepared. This report states the reasons why immigration officials believe the document is false. It is vital that an applicant suspected of deception can answer the charge, and without sight of the DVR that is impossible. It should also be pointed out that DVRs are sometimes woefully inadequate and reveal no real basis for claiming a document is forged. I have now heard of a different class of document prepared by immigration officials, the Document Examination Report (DER).

5th November 2013 By Colin Yeo

Two tribunal cases on deception

In the case of Mumu (paragraph 320; Article 8; scope) Bangladesh [2012] UKUT 143 (IAC) Judges of the Upper Tribunal Storey and Lane have dismissed an appeal against a refusal under paragraph 320(7A) of the Immigration Rules. This reads as follows: (7A)  Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts had not been disclosed, in relation to the application. The tribunal finds, perhaps rather unsurprisingly given the text of the rule, that the deception need not be that of the applicant and dismisses the case under the Immigration…

23rd May 2012 By Free Movement

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…

1st March 2011 By Free Movement

Doing the right thing?

I’ve just been in court doing yet another case where a solicitor has advised a client to do the ‘right’ thing and go abroad to make an application for entry clearance. This is common in spouse cases and I have myself advised clients to do the same thing in the past. Unfortunately, these applications are often rejected by ECOs, often but not always using one of the general grounds for refusal, leaving the couple separated for the months and months it takes to rectify the position through an appeal which will almost inevitably succeed. There are good reasons (in theory) to go abroad and make the application from there. It…

8th February 2011 By Free Movement

IJs should not raise mandatory refusals themselves

Many thanks to David Chirico for showing me this case (who I understand was in turn tipped off by Muhunthan Paramesvaran at Wilson and Co), and to Seema Farazi (of Doughty Street) for arguing it. Why it has not been reported, one can only speculate. A high-powered panel consisting of Dr Storey and Richard McKee held that it is not for Immigration Judges to start considering the mandatory grounds for refusal at paragraphs 320(7A) and (7B) unless they have been specifically relied on by the Home Office: The respondent has not relied on the other grounds given at rule 320(7A), namely making false representations and submitting false documents.  We have…

23rd December 2010 By Free Movement

Entry clearance deception refusals

Practitioners have seen a considerable increase in the number of applications for entry clearance that have been refused on the general grounds for refusal. The reasons are often opaque at best. Some simply refer to the contents of a Document Verification Report (DVR) and do not disclose this report. Many of these decisions cannot be appealed, or at least can only be appealed on race discrimination or human rights grounds, which does not get one very far in visit and business cases. Because one might as well shout at the moon as attempt communicate with most entry clearance posts, the only option in such cases is an application for judicial…

29th September 2010 By Free Movement

Rights of children a primary consideration

Yet more good news, this time for children and their parents. In LD (Article 8 best interests of child) Zimbabwe [2010] UKUT 278 (IAC) the President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the UN Convention on the Rights of the Child is highly relevant to Article 8 ECHR. See paragraphs 27 and 28: 27. The two younger children of the appellant have lived in the UK continuously for eleven years and for most of their lives.  PreviouslyHome Office policy tended to identify seven years of residence of a child as one that would presumptively require regularisation of immigration status of child and parents in the absence…

12th August 2010 By Free Movement

Meaning of ‘false representation’: AA Nigeria case

The Court of Appeal has adopted a helpfully limited approach to the meaning of ‘false representation’ in Immigration Rules 320(7A) and 322(1A), restricting it to cases of deliberate falsehood rather than accidental mistake. The case is AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 and the outcome is completely opposite to the tribunal’s consideration of the same issue in FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC). It really is remarkable how often the tribunal adopt the most restrictive possible interpretation and how often the higher courts disagree. It rather starts to call into question the judgment of some senior members of…

13th July 2010 By Free Movement

Mandatory refusals and contriving to frustrate

I’ve just come across an interesting little judgment on mandatory refusal cases. It is only a permission decision so it has limited precedent value, but it is worth highlighting. The case is SA (Pakistan) v SSHD [2009] EWCA Civ 1510 and concerns the mandatory refusal grounds set out at Immigration Rule 322. Permission was previously granted on the papers on some other tantalisingly unspecified grounds, which from the context may well be very interesting. This judgment was in respect of the grounds on which permission had been refused. In the course of giving judgment Sir David Keene comments as follows: 6. I will deal with these arguments in respect of…

18th February 2010 By Free Movement

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…

28th January 2010 By Free Movement

Albanian/Kosovar deprived of British citizenship by Presenting Officer

In an unusually dramatic move, the Presenting Officer in the recent case of KB (para: 320(7A): “false representations”) Albania [2009] UKAIT 00043 served a section 40 notice on a witness in the case, thereby depriving him of his British citizenship. There is a right of appeal to the tribunal against such a decision and the tribunal records that it advised the unrepresented man to seek legal advice. This was a case where the witness, who was sponsoring his wife to enter the UK from Albania, had claimed on arrival in the UK in 1999 to be a Kosovar. However, the tribunal records in the determination that the man was a…

15th October 2009 By Free Movement

Aussie Tier 1 refusals

It sounds from various internet forums as if the British High Commission at Canberra is getting tough on applicants for Tier 1. Where applications have been submitted that include evidence (e.g. payslips) that show the person has worked for more than the permitted 12 months while on a working holiday maker visa, they are being refused on the basis of previous breach of a condition attached to leave. See immigration rule 320(7B) and previous posts on the re-entry ban if reading about this for the first time. A ‘condition’ has a very specific legal meaning in immigration law. It refers specifically to the terms stated in the visa document in the…

11th September 2008 By Free Movement

Reviews of ECO decisions

News from the front line is that Entry Clearance Officers (ECOs) are overturning refusals under immigration rule 320(7B) that were made before the string of concessions was announced. Just ask for a review, you shouldn’t have to make a second application and pay the whacking great fee for their ‘service’ all over again. ECOs are apparently pretty pissed off themselves, and I can see why. First asked to do one thing, then another, then another and so on. They aren’t the ones to blame here, it’s the Home Office policy people that are the headless chickens.

13th June 2008 By Free Movement

Changes to immigration rules

One of the annoyingly frequent changes to the immigration rules has just been issued and can be found here. These sometimes come out as often as fortnightly, and I can remember a number of occasions when they have been so ill conceived they’ve had to withdraw them immediately. They once accidentally abolished the working holiday maker scheme by deleting Appendix 3 of the rules (akin to a Homer moment of “What if I press this big red button? D’oh!”) and they also once forbade fiance(e)s (ugh, I hate that word) from extending their stay as spouses – the entire purpose of the fiance(e) (D’oh!) category. All this incompetence just creates…

10th June 2008 By Free Movement

Contriving to frustrate

Thanks for those who posted comments pointing the way to updated guidance to visa officers on the issue of contriving to frustrate immigration rules. The guidance is here and reads as follows: ‘Contrived in a significant way to undermine the intentions of the immigration rules’ is where an applicant has previously been an illegal entrant, overstayed, breached a condition attached to his leave or used deception in a previous entry clearance, leave to enter or remain application, but only where there are aggravating circumstances. Aggravating factors include offences such as not complying with reporting restrictions, using multiple identities, a sham marriage, harbouring an immigration offender and facilitating/people smuggling. This is…

5th June 2008 By Free Movement

New guidance on rule 320(7B) refusals published

Following on from the parliamentary debate last week, the Entry Clearance Guidance (ECG, until recently rather quaintly called the Diplomatic Service Instructions – I always thought the idea visa officers were diplomatic was rather optimistic) on immigration rule 320(7B), the automatic re-entry ban for overstayers and other breachers of immigration laws, has been published. The guidance says that the automatic refusal rules will not be applied to spouses, civil partners, unmarried partners, fiance(e)s, children, those who were children at the time they breached immigration law, those exercising rights of access to a child in the UK, spouses or civil partners of people recognised as a refugee or granted humanitarian protection, those accepted to be victims…

20th May 2008 By Free Movement

New concessions on re-entry ban

Some great news on the re-entry ban saga. There was an unusually good debate in the Commons last night, when several MPs managed to put the screws on Liam Byrne, the Minister, and extracted three excellent concessions. All credit to those responsible, who appear to be Simon Hughes, John Spellar and Fiona McTaggart. They were well briefed by a number of organisations and Steve Symonds and Alison Harvey at ILPA have yet again done some brilliant work mitigating the worst effects of idiotic government proposals. The concessions are: “First, we will not automatically refuse applications from people applying to join their family permanently in the UK—that is to say, those…

15th May 2008 By Free Movement

More news on the re-entry ban

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….

14th April 2008 By Free Movement

Guidance published on re-entry ban

The Home Office and UK Visas have published guidance on their website about how their decision-makers should apply the re-entry ban and the concession that was announced. Unfortunately, they appear to be sticking to the strict terms of the concession that was announced in Parliament, meaning that the concession only applies to those present in the UK on 17 March 2008 who leave voluntarily before 1 October 2008. Anyone who left before 17 March 2008 does not fall within the concession and appears to face the exclusion ban. Anyone in this position should certainly seek legal advice as it is absurd to treat worse those who had already departed from…

8th April 2008 By Free Movement

Re-entry ban concession

In response to a comment left on my last post, I should make it clear that the concession as it stands in Hansard only applies to people currently in the UK who leave before 1 October 2008.  This really does not make sense as it penalises those who have already left under legal advice, like the boyfriend of Manu in the comment. I would expect there to be changes to take account of this, but with the Home Office it is never safe to assume that commonsense will prevail. If there are any changes, I’ll post about it. For convenience, the concession reads as follows: “A number of people have, however,…

19th March 2008 By Free Movement

Re-entry ban for illegal immigrants

Immigration lawyers have been shocked by Government proposals to introduce from 1 April 2008 a re-entry ban on immigrants who have previously breached UK immigration laws. The ban was debated in the House of Lords last night. This is very rare for changes to the immigration rules, which are usually adopted into law by the scrutiny-lite means of the negative resolution procedure. Unless someone objects, the law is simply tabled by the Government and will automatically become law. Finding parliamentarians willing to make such an objection is a tall order, at least amongst the cowering Commons. The new rule, the elegantly designated paragraph 320(7B), includes a sort of tariff system:…

18th March 2008 By Free Movement