WP_Post Object ( [ID] => 51234 [post_author] => 23 [post_date] => 2017-05-22 11:21:55 [post_date_gmt] => 2017-05-22 10:21:55 [post_content] => [toc]In Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49 (Arden, Elias, Burnett LLJ), the Court considered the position of Zambrano carers in need of social assistance.The Court held that the Zambrano status is a positive right which arises as soon as the necessary conditions are satisfied; there is no need to wait until the carer is destitute or threatened with actual removal from the EU.However, the Court went on to rule that Zambrano carers are not entitled to the same level of social assistance as EU citizens lawfully residing in the EU. The Zambrano obligation is limited to providing sufficient support to meet the carer’s basic needs (which includes the need to be able to care for the EU citizen child). The discrimination challenge to the amendment to the habitual residence test which excludes Zambrano carers from mainstream social assistance was rejected by the Court.

When does the Zambrano right arise?

In Zambrano (C-34/09) the CJEU established that a refusal to grant a right of residence to a third country national (‘TCN’) with a dependent minor child in the member state where the child is a national and resides, is prohibited if it has the effect of depriving citizens of the Union “the genuine enjoyment of the substance of the rights” conferred by virtue of their status as citizens of the Union. However, it was not necessary for the CJEU to define when Mr Zambrano’s right to reside arose and it gave no guidance on that point. Arden LJ, who gave the lead judgment, said the issue presents a choice between two dates:

(i) The time when the carer ceases to be liable to be removed i.e. the first date from which the Zambrano carer ceases to be liable to prohibited national measures (‘The First Date’).

(ii) The date when prohibited national measures are taken (or are imminent) (‘The Last Date’).

None of the subsequent EU cases considered the First Date/Last Date point (e.g. Dereci (C-256/11), O v Maahanmuuttovirasto (C-356/11 and C-357/11) and Iida (C-40/11)). The Court of Appeal in Harrison (Jamaica) v SSHD [2012] EWCA Civ 1736 was concerned with a different issue; namely that the Zambrano principle only covers the case where the carer is forced to leave the EU and not the lesser situation where the departure of the carer may adversely affect the quality of life of an EU citizen child who is left behind with another primary carer.The Appellants argued that the effect of the CJEU’s decision in Zambrano is that it was to be assumed that the Zambrano carer without support would be forced to leave for want of resources. On that basis, the right to reside would arise immediately (‘the First Date’). Moreover, a TCN who has no right to reside in the UK commits a criminal offence under section 24(1)(a) of the Immigration Act 1971. It would be wrong, in principle, if a Zambrano carer had to commit a criminal offence in order to be able to look after the EU citizen child in her care because she has no right to reside until the Last Date. On the other hand, the Secretary of State argued that the rights conferred on Zambrano carers are extremely limited. On his analysis, there is no right to reside as such until the point where the removal of the Zambrano carer from the EU is imminent. In the meantime, the carer’s presence in the country is merely tolerated.[su_pullquote align="right"]I wholly reject this analysis of the nature of the Zambrano right. In my view, it is barely coherent. - Elias LJ[/su_pullquote]Arden LJ observed that matters of entry and stay for non-EU citizens are matters outside the exclusive competence of the EU. However, the CJEU has held that member states must not take decisions on those matters which would make the rights of EU citizenship ineffective (e.g. Baumbast (C-413/99) and Chen (200/02). Against this background, Arden LJ held that it would make no sense for the Zambrano right to arise only from ‘the Last Date’ (para 74). In a concurring judgment Elias LJ criticised the position taken by the Secretary of State on this issue (paras 166-168):
“I wholly reject this analysis of the nature of the Zambrano right. In my view, it is barely coherent. The logic appears to be that although the State at all times has the right to take action to remove the third country national, in practical terms it is necessarily and always meaningless. At the very same moment as the State takes steps to exercise it, a countervailing right magically springs into being which enables the carer to claim to be immune from the process. Presumably on this analysis if the State then agrees not to take removal action, the need to invoke the Zambrano principle disappears and the carer returns to the status of someone whose presence is simply tolerated but who has no right as such to remain in the country.I cannot accept that this would be a proper implementation of the EU right. The right lawfully to remain and work in the UK can only sensibly mean that no action can be taken by the State to defeat those rights… At all times whilst the Zambrano conditions are met, the carer has the right not to have action taken to remove her from the country if the effect would be to deprive the child of his or her right, as a citizen of the EU, to remain within the EU.The Secretary of State’s submission is made all the more bizarre given that someone not lawfully present in the UK is under a duty to leave, and indeed is committing a criminal offence by remaining: see section 24 of the Immigration Act 1971. As I understand the response to this point of Mr Coppel QC, counsel for the Secretary of State, it is that in practice no proceedings are ever instituted against those illegally present, and if they were there would be an immunity from the criminal process. But to be effective the immunity must have the effect that at no time when the carer has been performing her role as a Zambrano carer has she been acting illegally by remaining in the country. The carer’s presence in the circumstances must be lawful, not merely tolerated, and that can only be on the premise that there is at all times a right to stay.”
Consequently, Zambrano carers were entitled to social assistance by virtue of their right to reside until that right had been deliberately excluded by an amendment to the habitual residence test (for both benefits and housing assistance) by SI 2012/2587, SI 2012/2588 and SI 2012/2612 (‘the Amending Regulations’) which came into force from 8 November 2012 (paras 135, 139 and 170). The Upper Tribunal’s decision in Sanneh v SSWP was therefore set aside as wrong in law as Ms Sanneh had been entitled to claim income support when she claimed benefit in June 2011 (para 137).This leaves the question of what social assistance the Zambrano right gives to carers and their children in the UK post-the Amending Regulations.

Does Zambrano create an entitlement to social assistance?

[su_pullquote]The Court ruled that member states must make social assistance available to Zambrano carers when it is essential to do so[/su_pullquote]The Court ruled that member states must make social assistance available to Zambrano carers when it is essential to do so to enable them to support themselves and the EU citizen child/children in their care within the EU. Arden calls this the ‘basic support test’. However, this is as far as EU law goes.The Court held that EU law has no competence as to the amount payable to Zambrano carers as this is a matter governed by national law. In broad terms, the Court said that the directives which deal with cross-border social security (including the Citizenship Directive (2004/38), the Long-Term Residence Directive (2003/109) and the Family Reunification Directive (2003/86)) provide an exhaustive statement of the rights to social assistance which a member state has to give to non-nationals. However, Zambrano carers cannot point to any provision within this scheme which gives her a right to social assistance as a matter of EU law. It follows that a member state can, in principle, decide on the level of benefits it grants to Zambrano carers.In the UK, the payment of adequate social assistance to Zambrano carers is achieved through the availability of section 17 of the Children Act 1989. This is sufficient to meet the UK’s obligations to provide support ‘basic support’ to Zambrano carers. The fact that Zambrano carers do not have a member state of origin to which to return does not justify giving them a right which is better than that of economically inactive EU citizens (under the Citizenship Directive) or TCNs (under the Long-Term Residence Directive).

Can Zambrano carers gain social assistance at the same level as EU citizens by virtue of EU anti-discrimination provisions?

The Appellant in R (HC) v SSWP sought to challenge the Amending Regulations on the basis that they were in breach of anti-discrimination provisions in EU law. The Court, in effect, said this challenge does not get off the ground as, according to EU case law, TCNs cannot rely on the anti-discrimination provision in Article 18 TFEU (ONAFTS v Ahmed (C-45/12). Nor can EU citizens who are not self-sufficient rely on the non-discrimination provisions in the Citizenship Directive (Dano (C-333/13).In relation to the arguments based on the Human Rights Act 1998 and the Equality Act 2010 the Court held that the scheme for Zambrano carers in the UK was proportionate and the differential treatment of these carers could not be described as ‘manifestly unreasonable’. The Court accepted the Secretary of State’s justification based on the following factors: (i) the differentiation does not leave the Zambrano carer and the EU citizen child destitute; (ii) a Zambrano carer can apply for long-term leave to remain under Appendix FM to the Immigration Rules; (iii) the policy reduces the incentive for people to come to the UK to claim benefits and encourages immigrants here unlawfully to regularise their stay (paras 98, 115-116).The Court also rejected submissions based on the EU Charter (para 117), the principle of proportionality (paras 92, 100) and the Equality Act 2010 (para 31, 122).

The Court’s conclusions

The Court of Appeal’s conclusions on the main issues are listed below: -
  • The Zambrano right creates an obligation on member states to take steps to ensure that the Zambrano carer and the dependent EU citizen are able to remain in the EU.
  • The Zambrano status arises as soon as the necessary conditions are met (‘the First Date’); there is no need to wait until the carer is destitute or forced to leave the EU (‘the Last Date’) (para 25 and 167-169). Hence, prior to the Amendment Regulations, Zambrano carers were entitled to access mainstream benefits (Sanneh) and housing assistance (Pryce).
  • Member states are under an obligation to pay Zambrano carers who are in need and unable to work an amount that will enable them to support themselves and their EU citizen child/children within the EU (para 26-27).
  • In the UK, section 17 of the Children Act 1989 meets the obligation of providing basic support for Zambrano carers (para 94, 98(iv) and 117).
  • Member states are not obliged to provide Zambrano carers with social assistance at the same level as that paid to EU citizens. The levels of social assistance made available to Zambrano carers in the UK post the Amending Regulations is not in breach of any requirement of EU law. Nor is it in breach of the Human Rights Act 1998 or the Equality Act 2010 (para 29-31).

Commentary

[su_pullquote align="right"]Zambrano criteria have been met if, without the social assistance, the Zambrano carer would be unable to meet their basic needs[/su_pullquote]The clarification of when the Zambrano status arises is welcome, as is the Court’s conclusion that EU law does not require an assessment of whether a carer will or will not in fact leave the UK with an EU citizen child if denied access to social assistance. This means that decision makers should find that the Zambrano criteria have been met if, without the social assistance, the Zambrano carer would be unable to meet their basic needs, including the needs arising from their caring responsibilities (para 98(v)).On the other hand, there is the bad news - the Court’s conclusion that the UK’s obligation under Zambrano can be met by ‘basic support’ in the form of section 17 support. This means British children of Zambrano carers will continue ‘basic support’ provided by local authorities instead of mainstream social assistance. As the judgment does not contain a positive ruling that section 17 support meets the needs of Zambrano carers “on the ground”, the question of the level of support given to Zambrano carers under section 17 may need to be considered in more detail: see R (Mensah) v Salford City Council [2014] EWHC 3537, in which a Zambrano carer is seeking permission to appeal. The discrimination challenge raises complex issues regarding the effectiveness of EU citizenship and this issue is likely to be considered further by the Supreme Court, with the strong possibility of a future reference to the CJEU (see para 172).The Appellant is seeking permission to appeal in R (HC) v SSWP and Ors and the Secretary of State has applied for permission to appeal in Sanneh v SSWP. [post_title] => Court of Appeal: Sanneh [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => court-appeal-sanneh [to_ping] => [pinged] => [post_modified] => 2017-05-22 11:21:55 [post_modified_gmt] => 2017-05-22 10:21:55 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=51234 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 51231 [post_author] => 23 [post_date] => 2017-05-22 11:15:38 [post_date_gmt] => 2017-05-22 10:15:38 [post_content] => [toc]In Chavez-Vilchez and Others v Netherlands C-133/15, the Court of Justice of the European Union significantly extended Zambrano rights beyond those so far recognised by the Home Office and UK courts. The case offers far better guidance than was available in previous cases and emphasises that the impact on children is a primary consideration.

Background

The case involved seven mothers who had applied to the Dutch authorities for residence on the basis of being the primary carers of young Dutch children. They had all been refused residency because it was said that the fathers of the children could care for them, and therefore the children would not be forced to leave the Netherlands and the EU if the mothers were removed.The facts varied. In one case the father was untraceable, in another he lived in supported accommodation in a young person's institution, in some the father had joint custody and in some the father paid some sort of financial contribution and/or had contact with the children to some degree but in most they did not. In a couple of cases the father had stated he was unable and/or unwilling to look after the child.The Netherlands had implemented a restrictive interpretation of Zambrano very similar to that of the United Kingdom. In essence, this required the third country applicant to show that the other parent -- the Union citizen parent -- was not, on the basis of objective criteria, in a position to care for the child, even with the assistance of third parties. Typically, the other parent would need to be in prison, hospitalised or dead.The Court had considered the question of when these rights might be engaged in three previous cases but it would be fair to say that none of us were the wiser for it:

What does "genuine enjoyment" mean?

The Court held that where refusal of residence to a mother would force a child to leave the territory of the European Union, this would amount to a deprivation of the "genuine enjoyment of the substance of the rights conferred on them by their status as Union citizens."This much we knew already.The Court goes on, though:
Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a Union citizen would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium.
For the first time the Court has added some guidance on what a "genuine enjoyment" might be and when it might be compromised. In particular, it cannot be assumed that just because the other parent is able and willing to care for the child, the child can therefore be left in the country concerned and will not be "forced" to leave. This is very important.The assessment of the question also has to include consideration of:
  • Best interests of the child
  • Age of the child
  • Child's physical and emotional development
  • Extent of emotional ties to both parents
  • Effect of separation from the 3rd country parent
  • Other specific circumstances
The judgment very strongly suggests that where the Union citizen parent is not able or willing to look after the child, it is highly unlikely to be permissible to find that the child can live with that parent instead.This marks a significant development of the case law on Zambrano rights and strongly suggests that ther UK has not been following the correct approach so far, an issue to which I return below.

Who proves what?

The Court also goes on to address who has to prove what. The Court finds that a Member State can require the applicant to furnish proof that the child would be deprived of his or her "genuine enjoyment" of Treaty rights but ends by saying that the Member State has a duty to undertake enquiries:
It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.
This is because the burden of proof must not undermine the effectiveness of Article 20 TFEU.

Implications for the UK

The current Home Office approach is set out in the Immigration (European Economic Area) Regulations 2016 at regulation 16 and Home Office policy guidance on derived rights.The Home Office guidance on Derived rights of residence (version 3.0, 11 April 2017) states that even where a parent is unwilling to care for a child, the test is not met (p53):
A lack of financial resources or a lack of willingness to assume caring responsibilities would not, by itself, be a sufficient basis for a person to claim they are unable to care for the relevant person.
Chavez-Vilchez very much suggests that this is the wrong approach and imposes too high a test.In the case of Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 the Court of Appeal took a similar line to the Home Office, declining to accept that Zambrano rights might extend beyond a situation where a child was forced to leave the EU:
If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci, but that is an entirely distinct area of protection.
Domestic UK case law too will have to be revisited.

[post_title] => CJEU: Chavez-Vilchez and Others [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => cjeu-chavez-vilchez-others [to_ping] => [pinged] => [post_modified] => 2017-05-22 11:15:38 [post_modified_gmt] => 2017-05-22 10:15:38 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=51231 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 51230 [post_author] => 23 [post_date] => 2017-05-22 11:10:56 [post_date_gmt] => 2017-05-22 10:10:56 [post_content] => [toc]In two linked cases, CS v UK C-304/14 and Marin v Spain C-165/14, the Court of Justice of the European Union has ruled that Zambran0-like derived rights of residence under EU law are not automatically lost if a crime is committed. Instead, each case must be assessed on its merits and a judgment reached applying normal principles of EU law.

Case of CS

The first of the cases has proven particularly controversial as the claimant has been named in Parliament as the daughter in law of Abu Hamza, notorious Islamist extremist. She was herself jailed for 12 months for attempting to smuggle a mobile phone sim card during a prison visit. The pending case was highlighted by Brexit campaigners as an example of the overreach of EU law and its interference with national sovereignty.CS's son is a British citizen and therefore a citizen of the Union. If she was removed from the UK, her son would also in effect have to leave and would thus lose the genuine enjoyment of the substance of his rights as a citizen of the Union. Normally, the Zambrano case would mean that CS would be permitted to stay in the UK in order to protect her son's rights. The question for the court was whether the criminal offending by CS changed anything.The Home Office argued that committing a crime could deprive a person of their Zambrano right to remain and override the rights of the affected EU citizen. Ultimately, the court agreed:
In this context, it must be held that, where the expulsion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of the criminal offences committed by a third-country national who is the sole carer of children who are Union citizens, that decision could be consistent with EU law.
However, the court goes on to hold that Zambrano rights cannot be lost automatically on the basis solely of the criminal record of the person concerned. There has to be a case by case assessment applying the principle of proportionality and the best interests of the child and applying the traditional EU law approach to expulsion and exclusion decisions:
That assessment must therefore take account in particular of the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health, as well as his economic and family situation.
The court also makes clear that the UK's automatic deportation regime in the UK Borders Act 2007 is not compatible with this approach:
44 That legislation therefore seems to establish a systematic and automatic link between the criminal conviction of the person concerned and the expulsion measure applicable to him or, in any event, there is a presumption that the person concerned must be expelled from the United Kingdom.45 However, as is clear from paragraphs 40 to 42 of the present judgment, the mere existence of a criminal record cannot, by itself, justify an expulsion decision which may deprive CS’s child of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen.It was already well established that EU rights cannot automatically be lost if a crime is committed but instead that each case must be decided on its own facts. The principle has now also been applied to Zambrano cases based on EU citizenship and derived rights of residence cases.
The court deciding such a case must consider how the conduct or criminal offence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or of the host Member State, which may justify deportation. To do so the court must assess:(i) the extent to which the person's criminal conduct is a danger to society and(ii) any consequences which such conduct might have for the requirements of public policy or public security of the Member State concerned.The extent of the child's dependence on the parent is also a factor to be considered.Providing all these principles are applied
a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of that third-country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are for the national court to determine.

Case of Marin

The second case, Marin, involved a refusal to issue a residence card as opposed to actual expulsion. Mr Marin was the sole carer parent of two children; a son who was a Spanish national and a daughter who was a Polish national through her mother. Mr Marin had received a nine month prison sentence suspended for two years. He made a residence card application and this was refused on the sole basis that he had a criminal record.Mr Marin appealed, arguing the refusal to grant him a residence card would result in his removal from Spanish territory and, therefore, from the territory of the European Union, which the two minor children, his dependants, would leave as a consequence.Interestingly, the reference to the CJEU raises two subsidiary points that have proven controversial in the UK:1. The first is whether Zambrano rights apply where the child is a national of a different EU Member State; it might have been an answer to the Marin case to say that the father could move to Poland with his Polish child.2. The second is whether refusal of a residence card should be regarded as forcing a person to leave, a link the tribunal refused to accept in the Amirteymour case when ousting its own jurisdiction yet again.Also interestingly, Mr Marin had subsequently been granted a residence card. The CJEU asked the referring court whether the reference was still needed, and the court said that it was because there could be consequences beyond the grant of residence card itself
such as compensation for the loss of employment contracts, of social benefits or of social security contributions or even, as the case may be, conferral of the right to acquire Spanish nationality.
This is another pointer towards the potential for damages for breaches of EU law by Member States.The Court first considers whether Article 21 and Directive 2004/38, the Citizens' Directive, apply to the facts of the case. The Court considers in the abstract as it was for the referring court to decide whether the conditions were in fact met. In particular, it was for the national court to decide whether the child was self sufficient or the parent was dependent.If the conditions were met, refusal of a residence permit on the sole and automatic ground of committing a criminal offence is held not to be permissible in EU law:
It follows that EU law precludes a limitation on the right of residence that is founded on grounds of a general preventive nature and ordered for the purpose of deterring other foreign nationals, in particular where that measure has been adopted automatically following a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy
The correct approach is to apply the normal principles of EU free movement law:
Thus, in order to determine whether an expulsion measure is proportionate to the legitimate aim pursued, in the present instance protection of the requirements of public policy or public security, account should be taken of the criteria set out in Article 28(1) of Directive 2004/38, namely how long the individual concerned has resided on the territory of the host Member State, his age, his state of health, his family and economic situation, his social and cultural integration into the host Member State and the extent of his links with his country of origin. The degree of gravity of the offence must also be taken into consideration in the context of the principle of proportionality.
The Court then moves on to consider whether Article 20 and Zambrano might apply and require that Mr Marin should have been issued with a residence card. On the issue of whether the family should relocate to Poland, several Member States rather charmingly intervened in proceedings to say that they should. The CJEU held that this was a question for the national court to decide. However, Mr Marin's submissions on this question are recorded as being that there were no family ties to Poland and neither he nor the children spoke Polish and the Court goes on to state it was "clear" this was capable of resulting in the children being deprived of the genuine enjoyment of their rights.On the issue of the automatic refusal of Zambrano residence on the basis of a criminal record, the Court follows a similar approach as in the CS case, holding that refusal could be justified if founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security. However, such a conclusion
cannot be drawn automatically on the basis solely of the criminal record of the person concerned. It can result, where appropriate, only from a specific assessment by the referring court of all the current and relevant circumstances of the case, in the light of the principle of proportionality, of the child’s best interests and of the fundamental rights whose observance the Court ensures.
For a decision to comply with EU law, the personal conduct of the person concerned must be assessed as well as the person's length and legality of residence, the nature and gravity of the offence committed, the extent to which the person is currently a danger to society, the age of the children and their state of health and their economic and family situation.

What have we learned?

The two cases settle some further outstanding questions following on from the Zambrano case. Criminal offending can result in refusal of a Zambrano right of residence, but only if normal principles of EU free movement law are applied. Zambrano can apply where the child is a national of a different Member State, and absence of family ties or language might well be sufficient to rule out an expectation of relocation to that country.The case also arguably further undermines the tribunal's finding in Amirteymour that refusal of a residence document could not be equated with a requirement to leave the country.Nevertheless, the exact scope of Zambrano remains unclear, in particular the extent to which the existence of an alternative carer of some sort might forestall Zambrano rights. [post_title] => CJEU: CS v UK and Marin v Spain [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => cjeu-cs-v-uk-marin-v-spain [to_ping] => [pinged] => [post_modified] => 2017-05-22 11:10:56 [post_modified_gmt] => 2017-05-22 10:10:56 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=51230 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 51064 [post_author] => 23 [post_date] => 2017-05-18 11:10:04 [post_date_gmt] => 2017-05-18 10:10:04 [post_content] => We're always grateful for feedback, thank you![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => Feedback form [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => feedback-form-22 [to_ping] => [pinged] => [post_modified] => 2017-05-18 11:10:04 [post_modified_gmt] => 2017-05-18 10:10:04 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=51064 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50628 [post_author] => 23 [post_date] => 2017-05-05 09:55:49 [post_date_gmt] => 2017-05-05 08:55:49 [post_content] => This month we start with two major developments, namely the coming into force of new EEA immigration regulations and the judgment of the Supreme Court in the MM case. I run through some Home Office and enforcement news, cover some bits of immigration rule analysis we added in Febrary and end with a few tribunal cases.The material is all drawn from the February 2017 blog posts on Free Movement.If you listen to podcasts on your mobile phone, you can subscribe for free via iTunes here, Stitcher here or point your podcast player to podcast feed for Free Movement. Using a mobile device and subscribing has the advantage that each new podcast can be automatically downloaded for listening to on the go.The downloadable 25 minute audio podcast follows the (non chronological) order of content below:Major developments Home Office and enforcement news Immigration rule analysis Tribunal cases
[audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2017/05/FM-podcast-February-2017.mp3"][/audio]
[post_title] => February 2017 immigration update [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => february-2017-immigration-update [to_ping] => [pinged] => [post_modified] => 2017-05-05 09:55:49 [post_modified_gmt] => 2017-05-05 08:55:49 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50628 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50524 [post_author] => 23 [post_date] => 2017-05-03 13:54:06 [post_date_gmt] => 2017-05-03 12:54:06 [post_content] => Thank you for your feedback, we are always grateful for it![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => General grounds for refusal feedback [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => general-grounds-refusal-feedback [to_ping] => [pinged] => [post_modified] => 2017-05-03 13:55:38 [post_modified_gmt] => 2017-05-03 12:55:38 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50524 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50523 [post_author] => 23 [post_date] => 2017-05-03 13:53:33 [post_date_gmt] => 2017-05-03 12:53:33 [post_content] => [post_title] => General grounds for refusal quiz [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => general-grounds-refusal-quiz [to_ping] => [pinged] => [post_modified] => 2017-05-03 13:53:33 [post_modified_gmt] => 2017-05-03 12:53:33 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50523 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50229 [post_author] => 23 [post_date] => 2017-04-27 14:53:37 [post_date_gmt] => 2017-04-27 13:53:37 [post_content] => [toc]Appendix FM is the only known legal code to be drafted with no chronological sequencing; it appears to have been drafted by a person well versed in the opaque arts of bureaucracy. One side product of the appalling drafting of Appendix FM is that the "suitability criteria" are set out separately and repeated for entry clearance, leave to enter and indefinite leave to remain under the "spouse or partner" section and then referred back to under other categories of relative.The Appendix FM suitability requirements are (they are not in fact set out together as conveniently as below):

Section S-EC: Suitability-entry clearance

S-EC.1.1. The applicant will be refused entry clearance on grounds of suitability if any of paragraphs S-EC.1.2. to 1.9. apply.S-EC.1.2. The Secretary of State has personally directed that the exclusion of the applicant from the UK is conducive to the public good.S-EC.1.3. The applicant is currently the subject of a deportation order.S-EC.1.4. The exclusion of the applicant from the UK is conducive to the public good because they have:
  1. (a) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
  2. (b) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or
  3. (c) been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.
Where this paragraph applies, unless refusal would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors.S-EC.1.5. The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance.S-EC.1.6. The applicant has failed without reasonable excuse to comply with a requirement to-
  1. (a) attend an interview;
  2. (b) provide information;
  3. (c) provide physical data; or
  4. (d) undergo a medical examination or provide a medical report.
S-EC.1.7. It is undesirable to grant entry clearance to the applicant for medical reasons.S-EC.1.8. The applicant 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 less than 5 years prior to the date on which the application is decided.S-EC.1.9. The Secretary of State considers that the applicant’s parent or parent’s partner poses a risk to the applicant. That person may be considered to pose a risk to the applicant if, for example, they - –
  1. (a) have a conviction as an adult, whether in the UK or overseas, for an offence against a child;
  2. (b) are a registered sex offender and have failed to comply with any notification requirements; or
  3. (c) are required to comply with a sexual risk order made under the Anti-Social Behaviour, Crime and Policing Act 2014 and have failed to do so.
S-EC.2.1. The applicant will normally be refused on grounds of suitability if any of paragraphs S-EC.2.2. to 2.5. apply.S-EC.2.2. Whether or not to the applicant’s knowledge-
  1. (a) false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application); or
  2. (b) there has been a failure to disclose material facts in relation to the application.
S-EC.2.3. DELETED.S-EC.2.4. A maintenance and accommodation undertaking has been requested or required under paragraph 35 of these Rules or otherwise and has not been provided.
  1. S-EC.2.5. The exclusion of the applicant from the UK is conducive to the public good because:
    1. (a) within the 12 months prior to the date on which the application is decided, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record; or
    2. (b) in the view of the Secretary of State:
      1. (i) the person’s offending has caused serious harm; or
      2. (ii) the person is a persistent offender who shows a particular disregard for the law.
S-EC.3.1. The applicant may be refused on grounds of suitability if the applicant has failed to pay litigation costs awarded to the Home Office.S-EC.3.2. The applicant may be refused on grounds of suitability if one or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.

Section S-LTR: Suitability-leave to remain

S-LTR.1.1. The applicant will be refused limited leave to remain on grounds of suitability if any of paragraphs S-LTR.1.2. to 1.8. apply.S-LTR.1.2. The applicant is currently the subject of a deportation order.S-LTR.1.3. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years.S-LTR.1.4. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months.S-LTR.1.5. The presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.S-LTR.1.7. The applicant has failed without reasonable excuse to comply with a requirement to-
  1. (a) attend an interview;
  2. (b) provide information;
  3. (c) provide physical data; or
  4. (d) undergo a medical examination or provide a medical report.
S-LTR.1.8. The presence of the applicant in the UK is not conducive to the public good because the Secretary of State:
  1. (a) has made a decision under Article 1F of the Refugee Convention to exclude the person from the Refugee Convention or under paragraph 339D of these Rules to exclude them from humanitarian protection; or
  2. (b) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because there are reasonable grounds for regarding them as a danger to the security of the UK; or
  3. (c) considers that they are a person to whom sub-paragraph (a) or (b) would apply except that (i) the person has not made a protection claim, or (ii) the person made a protection claim which has already been finally determined without reference to Article 1F of the Refugee Convention or paragraph 339D of these Rules; or
  4. (d) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because, having been convicted by a final judgment of a particularly serious crime, they constitute a danger to the community of the UK.
S-LTR.2.1. The applicant will normally be refused on grounds of suitability if any of paragraphs S-LTR.2.2. to 2.5. apply.S-LTR.2.2. Whether or not to the applicant’s knowledge –
  1. (a) false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application); or
  2. (b) there has been a failure to disclose material facts in relation to the application.
S-LTR.2.3. DELETED.S-LTR.2.4. A maintenance and accommodation undertaking has been requested under paragraph 35 of these Rules and has not been provided.S-LTR.2.5. The Secretary of State has given notice to the applicant and their partner under section 50(7)(b) of the Immigration Act 2014 that one or both of them have not complied with the investigation of their proposed marriage or civil partnership.S-LTR.3.1. When considering whether the presence of the applicant in the UK is not conducive to the public good any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.S-LTR.4.1. The applicant may be refused on grounds of suitability if any of paragraphs S-LTR.4.2. to S-LTR.4.5. apply.S-LTR.4.2. The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful).S-LTR.4.3. The applicant has previously made false representations or failed to disclose material facts for the purpose of obtaining a document from the Secretary of State that indicates that he or she has a right to reside in the United Kingdom.S-LTR.4.4. The applicant has failed to pay litigation costs awarded to the Home Office.S-LTR.4.5. One or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.

Section S-ILR: Suitability for indefinite leave to remain

S-ILR.1.1. The applicant will be refused indefinite leave to remain on grounds of suitability if any of paragraphs S-ILR.1.2. to 1.10. apply.S-ILR.1.2. The applicant is currently the subject of a deportation order.S-ILR.1.3. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years.S-ILR.1.4. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months, unless a period of 15 years has passed since the end of the sentence.S-ILR.1.5. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence.S-ILR.1.6. The applicant has, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.S-ILR.1.7. The presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.S-ILR.1.8. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-ILR.1.3. to 1.6.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.S-ILR.1.9. The applicant has failed without reasonable excuse to comply with a requirement to-
  1. (a) attend an interview;
  2. (b) provide information;
  3. (c) provide physical data; or
  4. (d) undergo a medical examination or provide a medical report.
S-ILR.1.10. The presence of the applicant in the UK is not conducive to the public good because the Secretary of State:
  1. (a) has made a decision under Article 1F of the Refugee Convention to exclude the person from the Refugee Convention or under paragraph 339D of these Rules to exclude them from humanitarian protection; or
  2. (b) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because there are reasonable grounds for regarding them as a danger to the security of the UK; or
  3. (c) considers that they are a person to whom sub-paragraph (a) or (b) would apply except that (i) the person has not made a protection claim, or (ii) the person made a protection claim which has already been finally determined without reference to Article 1F of the Refugee Convention or paragraph 339D of these Rules; or
  4. (d) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because, having been convicted by a final judgment of a particularly serious crime, they constitute a danger to the community of the UK.
S-ILR.2.1. The applicant will normally be refused on grounds of suitability if any of paragraphs S-ILR.2.2. to 2.4. apply.S-ILR.2.2. Whether or not to the applicant’s knowledge –
  1. (a) false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application); or
  2. (b) there has been a failure to disclose material facts in relation to the application.
S-ILR.2.3. DELETED.S-ILR.2.4. A maintenance and accommodation undertaking has been requested under paragraph 35 of these Rules and has not been provided.S-ILR.3.1. When considering whether the presence of the applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.S-ILR.4.1. The applicant may be refused on grounds of suitability if any of paragraphs S-ILR.4.2. to S-ILR.4.5. apply.S-ILR.4.2. The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful).S-ILR.4.3. The applicant has previously made false representations or failed to disclose material facts for the purpose of obtaining a document from the Secretary of State that indicates that he or she has a right to reside in the United Kingdom.S-ILR.4.4. The applicant has failed to pay litigation costs awarded to the Home Office.S-ILR.4.5. One or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.
There is no discernible difference between the criteria relating to entry clearance, leave to enter or indefinite leave to remain so why the provisions are set out three times is something of a mystery. [post_title] => Appendix FM for family members: suitability requirements [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => appendix-fm-family-members-suitability-requirements [to_ping] => [pinged] => [post_modified] => 2017-04-27 14:53:37 [post_modified_gmt] => 2017-04-27 13:53:37 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50229 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50224 [post_author] => 23 [post_date] => 2017-04-27 14:33:50 [post_date_gmt] => 2017-04-27 13:33:50 [post_content] => [toc]The general grounds for refusal at Part 9 of the Immigration Rules do not apply in applications for the entry clearance or leave to enter as a visitor. This is by virtue of paragraph 4 of Part 2 of the Immigration Rules, which states:
From 24 April 2015 the following provisions of these rules will not apply to visitors, except where specifically provided for in Appendix V: Immigration Rules for Visitors:a. Paragraph 6;b. Part 1;c. Part 9;d. Appendix 1;e. Appendix R.
Instead, a separate but parallel set of provisions et out in Appendix V is applied. The text of these so-called "suitability criteria" is as follows:

PART V3. SUITABILITY REQUIREMENTS FOR ALL VISITORS

V 3.1 This Part applies to all applications for visit visas, leave to enter, and an extension of stay as a visitor except where explicitly stated otherwise.

Not conducive to the public good: exclusion and deportation

V 3.2 An application will be refused if:

(a) the Secretary of State has personally directed that the applicant’s exclusion from the UK is conducive to the public good; or

(b) the applicant is currently the subject of a deportation order or a decision to make a deportation order.

V 3.3 An application will be refused if the decision maker believes that exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (including convictions which do not fall within paragraph V 3.4), character, associations, or other reasons, make it undesirable to grant their application.

Not conducive to the public good: criminal convictions, etc.

V 3.4 An application (except for an application for an extension of stay as a visitor) will be refused if the applicant has been convicted of a criminal offence for which they have been sentenced to a period of imprisonment of:

(a) at least 4 years; or

(b) between 12 months and 4 years, unless at least 10 years have passed since the end of the sentence; or

(c) less than 12 months, unless at least 5 years has passed since the end of the sentence.

Where this paragraph applies, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors.V 3.4A An application will be refused if the presence of the applicant in the UK is not conducive to the public good because they are a person to whom the Secretary of State:

(a) has at any time decided that paragraph 339AA, 339AC, 339D or 339GB of these rules applies; or

(b) has decided that paragraph 339AA, 339AC, 339D or 339GB of these rules would apply, but for the fact that (a) the person has not made a protection claim in the UK, or that (b) the person made a protection claim which was finally determined without reference to any of the relevant matters described in paragraphs 339AA, 339AC, 339D or 339GB.

V 3.5 An application will normally be refused if:

(a) within the period of 12 months before the application is decided, the applicant has been convicted of or admitted an offence for which they received a non-custodial sentence or out of court disposal that is recorded on their criminal record (except for an application for an extension of stay as a visitor); or

(b) in the view of the Secretary of State the applicant’s offending has caused serious harm; or

(c) in the view of the Secretary of State the applicant is a persistent offender who shows a particular disregard for the law.

False information in relation to an application

V 3.6 An application will be refused where:

(a) 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

(b) material facts have not been disclosed, in relation to their application or in order to obtain documents from the Secretary of State or a third party provided in support of their application.

Breaches of UK immigration laws

V 3.7 An application, except an application for an extension of stay as a visitor, will be refused if:

(a) the applicant previously breached UK immigration laws as described at V 3.9; and

(b) the application is made within the relevant re-entry ban time period in V 3.10 (which time period is relevant will depend on the manner in which the applicant left the UK).

V 3.8 If the applicant has previously breached UK immigration laws but is outside the relevant re-entry ban time period the application will normally be refused if there are other aggravating circumstances, such as a failure to cooperate with immigration control or enforcement processes. This applies even where paragraph V3.9A applies..V 3.9 An applicant, when aged 18 years or over, breached the UK’s immigration laws:

(a) by overstaying (except where paragraph V3.9A applies); or

(b) by breaching a condition attached to their leave; or

(c) by being an illegal entrant; or

(d) if deception was used in relation to an application or documents used in support of an application (whether successful or not).

V3.9A This paragraph applies where:

(i) the overstaying was for-

(a) 90 days or less, where the overstaying began before 6 April 2017; or

(b) 30 days or less, where the overstaying began on or after 6 April 2017; and

(ii) in either case the applicant left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State.

For the purposes of calculating the period of overstaying, the following will be disregarded:

(aa) overstaying of up to 28 days, where, prior to 24 November 2016, an application for leave was made during that time, together with any period of overstaying pending the determination of that application and any related appeal or administrative review;

(bb) overstaying in relation to which paragraph 39E of the Immigration Rules (concerning out of time applications made on or after 24 November 2016) applied, together with any period of overstaying pending the determination of any related appeal or administrative review;

(cc) overstaying arising from a decision of the Secretary of State which is subsequently withdrawn, quashed, or which the Court or Tribunal has required the Secretary of State to reconsider in whole or in part, unless the challenge to the decision was brought more than three months from the date of the decision.

V 3.10 The duration of a re-entry ban is as follows:
Duration of re entry ban from date they left the UK (or date of refusal of entry clearance under paragraph f)This applies where the applicantandand
(a) 12 monthsleft voluntarilyat their own expense.-
(b) 2 yearsleft voluntarilyat public expenseWithin 6 months of being given notice of liability for removal or when they no longer had a pending appeal or administrative review, whichever is later.
(c) 5 yearsleft voluntarilyat public expense,more than 6 months after being given notice of liability for removal or when they no longer had a pending appeal or administrative review, whichever is later.
(d) 5 yearsleft or was removed from the UKas a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 (and providing that any condition prohibiting their return to the UK has itself expired)-
(e) 10 yearswas deported from the UK or was removed from the UKat public expense-
(f) 10 yearsused deception in an application for entry clearance (including a visit visa).--
V 3.11 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.

Failure to produce satisfactory identity documents or provide other information

V 3.12 An applicant will be refused where the applicant:

(a) fails to produce a valid travel document that satisfies the decision maker as to their identity and nationality except where paragraph V3.12A applies.

(b) fails without reasonable excuse to comply with a requirement to:

(i) attend an interview; or

(ii) provide information; or

(iii) provide biometrics; or

(iv) undergo a medical examination or provide a medical report.

V3.12A The document referred to in paragraph V3.12(a) does not need to satisfy the decision maker as to nationality where it was issued by the national authority of a state of which the person is not a national and the person’s statelessness or other status prevents the person from obtaining a document satisfactorily establishing the person’s nationality.

Medical

V 3.13 An applicant will normally be refused where, on the advice of the medical inspector, it is undesirable to grant the application for medical reasons.

Debt to the NHS

V 3.14 An applicant will normally be refused where a relevant NHS body has notified the Secretary of State that the applicant has failed to pay charges under relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.

Litigation costs

V3.14A An applicant will normally be refused where the applicant has failed to pay litigation costs awarded to the Home Office.

Admission to the Common Travel Area or other countries

V 3.15 An applicant will be refused where they are seeking entry to the UK with the intention of entering another part of the Common Travel Area, and fails to satisfy the decision maker that they are acceptable to the immigration authorities there.V 3.16 An applicant will normally be refused where they fail to satisfy the decision maker that they will be admitted to another country after a stay in the UK.
[post_title] => Appendix V for visitors: suitability requirements [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => appendix-v-visitors-suitability-requirements [to_ping] => [pinged] => [post_modified] => 2017-04-27 14:43:11 [post_modified_gmt] => 2017-04-27 13:43:11 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50224 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50216 [post_author] => 23 [post_date] => 2017-04-27 12:14:43 [post_date_gmt] => 2017-04-27 11:14:43 [post_content] => costs money coin poundsThe Statement of Changes HC877, of 11 March 2016, gave the Home Office yet another power to refuse applications for leave to enter or remain in the UK. For all applications made on or after 6 April 2016, having a “litigation debt” to the Home Office may be a ground for refusal. These debts may arise in the course of any litigation against the Home Office (e.g. judicial reviews, claims for unlawful detention and appeals), where the court or Tribunal orders the other party to pay the Home Office’s costs.The purpose of this change, according to the Home Office’s Explanatory Memorandum, is to
encourage applicants to pay litigation debts that they owe and assist the Home Office in recovering the costs incurred in dealing with the unsuccessful litigation.
This new power is “discretionary”, as opposed to mandatory, and therefore the Home Office should not automatically refuse applications where there is a litigation debt, but will need to take into consideration a number of factors, as outlined in its guidance.

Home Office’s guidance: when will a litigation debt mean a refusal?

Having a litigation debt may be a ground for refusal for almost all applications to the Home Office (it does not apply to applications made under European law; protection claims and applications for naturalisation or registration as British citizens).However, the Home Office will (or should) weigh the different factors it needs to take into consideration differently when an application is made under Appendix FM, Appendix Armed Forces or paragraph 276ADE(1) of the Immigration Rules (i.e. an application on the basis of private life). In fact, while there will be a presumption in favour of refusal for most applications for leave to enter or remain (including as a visitor) where the applicant owes a litigation debt to the Home Office, this presumption is not there when applications are made on the basis of private or family life. Instead, these applications should only be refused when it is “proportionate” to do so.The Home Office gives more details as to the factors it will take into consideration in its guidance published on 17 October 2016. Oddly, the general guidance on Ground for Refusal has not been amended to include litigation debts.

Applications other than under Appendix FM, Appendix Armed Forces or paragraph 276 ADE(1)

The Home Office will take into consideration a number of factors when deciding whether to refuse an application on the basis of a litigation debt. These include, but are not limited to:
  • How the debt is accrued. The Home Office will look at the conduct of the applicant in litigation and the guidance states that where an applicant accrued a litigation debt by bringing unsuccessful judicial review proceedings "in an attempt to frustrate their removal from the UK" and the JR was found by the court to be totally without merit then it "would rarely be appropriate to exercise discretion in such a case."
  • The level of cooperation with the Home Office debt recovery attempts, looking at, for instance, whether the applicant ignored requests to pay the debt or attempted to pay it off;
  • The purpose of the application. The more important it is that the applicant is allowed to enter or stay in the UK, the more likely it is that discretion is applied. The Home Office gives the example of an applicant who needs to attend a relative’s funeral as opposed to a tourist coming on holiday;
  • The applicant’s ability to pay. For example, whether the applicant has shown willingness to pay his or her debt but has found itself unable to meet an agreed payment plan due to circumstances beyond their control;
  • The amount of the debt and how long it has been outstanding. The bigger the debt, and the longer it has been outstanding for, the less likely it is that the Home Office will exercise discretion and disregard the debt;
  • Any other relevant factors.

Applications under Appendix FM, Appendix Armed Forces or paragraph 276 ADE(1)

The Home Office will consider the factors above but, in addition, look at the proportionality of a refusal. In particular the Home Office will consider the applicant’s ability to pay (e.g. the Home Office may disregard a debt where they accepted that the applicant is destitute and waived the application’s fees); and the level of cooperation with the Home Office’s debt recovery attempts.In addition, and importantly, even when the Home Office considers that it would be proportionate to refuse an application, it must go on to look at whether there are exceptional circumstances which would warrant a grant outside the rules.In exceptional circumstances, the Home Office may contact an applicant to request more information, with a view to assess whether there are exceptional or compassionate reasons justifying an exercise of discretion. However, it is clear from the guidance that this will be the exception rather than the rule, and applicants should not expect to be given this opportunity as a matter of routine.

Advising applicants

It is clear from the guidance that in theory an application will not automatically be refused because of a litigation debt. However, the Home Office will always check whether there is an outstanding litigation debt, and it is unlikely they will exercise their discretion in favour of the applicant, in particular for applications made other than on the basis of family and private life.Legal representatives should, therefore, consider the following:
  • Take instructions from their clients as to whether they have a litigation debt. It might be appropriate in some circumstances -- for example if clients have lost a judicial review in the past -- to obtain a copy of their Home Office file or contact the Litigation Finance Team to check whether the clients had been ordered to pay costs.
  • If there is an outstanding litigation debt, assess the fairness and lawfulness of such an award. Legal representatives should always bear in mind that it is possible that a cost award was made unlawfully (see this post for more details). If the award was lawful, legal representatives should advise their clients to settle the debt or agree on an instalment plan. In fact, it is clear that the purpose of this ground of refusal is for the Home Office to recover money owed to them, rather than to punish applicants for having been ordered costs in the first place. If an applicant settles the debt or agrees on an instalment plan, they should not be penalised.
  • When an applicant is clearly not in a position to settle their debt (namely because they cannot afford it), evidence of their finances should be submitted with the application.
  • Anytime a client is ordered to pay the Home Office’s costs, assess the lawfulness of such award and seek to challenge it if unlawful.
As parting comment, it is rather unfortunate that a litigation debt can easily be used against an applicant, but there are no mechanisms to similarly force the Home Office to pay their litigation debts to claimants and their lawyers, which often remain outstanding for years. [post_title] => Owing a litigation debt to the Home Office [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => owing-litigation-debt-home-office [to_ping] => [pinged] => [post_modified] => 2017-04-27 12:14:43 [post_modified_gmt] => 2017-04-27 11:14:43 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50216 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50215 [post_author] => 23 [post_date] => 2017-04-27 12:09:20 [post_date_gmt] => 2017-04-27 11:09:20 [post_content] => 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 90 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.
The phrasing is extraordinarily convoluted but a visual guide might help understand the way the rule works:Some worked examples might also help.[su_box title="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.[/su_box][su_box title="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 1Maria buys herself a ticket to return home on 5 March 2014. She will not be subject to any entry ban.Scenario 2Maria 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 3Maria 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.[/su_box]

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, which means that the Secretary of State may decide whether or not to refuse an application on this ground.[su_box title="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.[/su_box][su_box title="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.[/su_box]

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

Yes. Firstly, and as explained above, the re-entry ban periods do not apply to applications under Appendix FM, Appendix Armed Forces or the EEA Regulations.In addition, and for any other application, the Home Office’s guidanceconfirms 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. [post_title] => Refusal based on past breaches of immigration rules: re-entry bans [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => refusal-based-past-breaches-immigration-rules-re-entry-bans [to_ping] => [pinged] => [post_modified] => 2017-04-27 12:09:20 [post_modified_gmt] => 2017-04-27 11:09:20 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50215 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50214 [post_author] => 23 [post_date] => 2017-04-27 11:59:57 [post_date_gmt] => 2017-04-27 10:59:57 [post_content] => There are no mandatory grounds for refusal related to criminal convictions for applications for leave to remain. However, an application may be refused under paragraph 322(5), which states that applications should normally be refused where:
It is undesirable to let an applicant stay because of their character, behaviour or associations (including convictions which do not fall within paragraph 322(1C)), or because they are a threat to national security.
An application can also be refused under paragraph 322(5A) where:
It is undesirable to permit the person concerned to enter or remain in the UK because:
  • in the view of the Secretary of State, their offending has caused serious harm, or
  • in the view of the Secretary of State, they are a persistent offender who shows a particular disregard for the law.
Applications for indefinite leave to remain will always be refused, however, under paragraph 322(1C), if
(i) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years; or(ii) they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months but less than 4 years, unless a period of 15 years has passed since the end of the sentence; or(iii) they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of 7 years has passed since the end of the sentence; or(iv) they have, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.
Note here that applicants will be affected for longer periods of time than in applications for entry clearance:
  • 15 years instead of 10 for sentences of 12 months to 4 years;
  • 7 years instead of 5 for sentences of less than 12 months; and
  • 24 months instead of 12 months for non-custodial sentences.
A person prohibited from applying for ILR by these tariffs can potentially apply for an extension of limited leave, although as stated above paragraph 322(5) could lead to a refusal. [post_title] => Criminal convictions and applications for limited leave or Indefinite Leave to Remain [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => criminal-convictions-applications-limited-leave-indefinite-leave-remain [to_ping] => [pinged] => [post_modified] => 2017-04-27 11:59:57 [post_modified_gmt] => 2017-04-27 10:59:57 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50214 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50212 [post_author] => 23 [post_date] => 2017-04-27 11:56:17 [post_date_gmt] => 2017-04-27 10:56:17 [post_content] => As well as the mandatory bans from entry to the UK, the Secretary of State has the power to refuse an application when an individual:
  1. has been convicted of an offence but not sentenced to prison in the last 12 months (paragraph 320(18A);
  2. is considered to have caused serious harm (paragraph 18B(a));
  3. is a persistent offender (paragraph 18B(b);
  4. exclusion deemed to be in the public good for example because of poor character, conduct or associations (paragraph 320(19))
In these cases, there is a presumption that an application will be refused because the wording of the rules is that a claim "should normally be refused", but it does not have to be refused.To put it another way, it is likely that one of these cases will be refused but it may be possible to persuade the decision maker not to. Also, if the application is refused and a legal challenge is brought then a judge will need to consider whether the discretion was lawfully exercised (in an application for judicial review) or exercise the discretion him or herself (in a statutory appeal).

Non custodial sentences

Non-custodial sentences include:
  • fines (but not Fixed penalty notice (FPN), penalty charge notice (PCN), or penalty notice for disorder (PND)
  • cautions, warnings and reprimands
  • absolute and conditional discharges
  • non-custodial sentences and orders
  • disqualifications from driving
It does not include binding over, as this will not form part of a person’s criminal record.

Serious harm

An individual can be refused when, in the view of the Secretary of State, his or her offending has caused serious harm, such as death or serious injury.Visa officials are directed to look at the consequences of the person's actions, rather than the seriousness of the offence itself. Therefore, a person who has been convicted of driving without insurance may have their application refused if, when driving, they killed or seriously injured another person.

Persistent offenders

An individual can also be refused when, in the view of the Secretary of State, the person is a persistent offender who shows a particular disregard for the law.This involve an assessment of the following factors:
  • number of offences
  • seriousness of the offences, including the degree of public nuisance
  • escalation in the seriousness of the offence. This seems to be request an assessment of future risk; the guidance directs caseworkers to “identify a pattern of escalating offending and intervene before a more serious offence is committed”.
  • timescale over which the offences were committed. Here, the guidance reads “If you can attribute a series of offences, committed a long time ago, to a particular incident or issue in a person’s life, this could make refusing that person’s application and/or pursuing their deportation or removal from the UK a disproportionate response. But, repeated criminality over a lengthy period of time would make such action favourable".
  • Frequency of the offences
  • actions taken to address the cause of the offending, including programs or activities aimed at addressing the cause of the offending. These actions must have a significant impact on reducing the offending
[su_box title="Example 3"]Nancy has been convicted five times for shoplifting in big supermarkets. All offences took place when she was 16 years old and found herself homeless. Nancy is now 30 years old and has not had any troubles with the law since. It is arguable that an application made at this time should not be refused as all offences date from many years ago, all were relatively minor offences of the same seriousness, they caused little public nuisance, and were related to a particular situation (Nancy's homelessness).[/su_box][su_box title="Example 4"]Fred had two minor offences for shoplifting aged 18. At the age of 21, he was convicted  for possession of a class A drug and was sentenced to community order. At the age of 23, he was convicted of assault and was sentenced to another community order. Fred is now 26. It is likely that his application will be refused as he has offended frequently, the seriousness of the offences increased, and the last offence was only three years ago.[/su_box]The guidance "General Grounds for refusal: Section 2" directs the Home Office, though, that
If you decide to refuse an applicant on either of these grounds, you must take into account any human rights grounds and make sure that your refusal is both proportionate and reasonable.
Therefore, in example 4, if Fred had lived in the UK since the age of 10, he was married to a British citizen, and had two British citizen children, it is possible that a refusal on this ground would be considered disproportionate.

Poor character, conduct or associations

Guidance to visa officials sets out the broad test to be applied:
A person does not need to have been convicted of a criminal offence for this provision to apply. To decide if a refusal under this category is appropriate you must consider if there is any reliable evidence to support a decision that the person’s behaviour calls into question their character, conduct and/or associations to the extent that it is undesirable to allow them to enter or remain in the UK. This may include cases where a person has entered into, attempted to enter, or facilitated, a sham marriage to evade immigration control.
A list of circumstances where refusal would normally be justified is also set out:
You must consider refusing an applicant under paragraph 320(19) when:
  • admitting the person to the UK could unfavourably affect the conduct of foreign policy
  • the person is subject to a United Nations (UN) or European Union (EU) travel ban that has not yet been listed under the Immigration (Designation of Travel Bans) Order 2000
  • the person is a threat to national security
  • there is reliable evidence the person has been involved in or associated with war crimes or crimes against humanity – it is not necessary for them to have been charged or convicted
  • admitting the person may lead to a breach of UK law or public order
  • admitting the person may lead to an offence being committed by someone else – for example, the applicant may have extreme views which if expressed could result in civil unrest and a breach of the law
The guidance goes on to state that it is unlikely a person will be refused for a a single conviction resulting on a non-custodial sentence outside the relevant timeframe in other parts of the general grounds for refusal but that the the greater the number of cautions, warnings, discharges and admonishments on a person's record, the more likely it is the person will be refused under this paragraph.Much of the guidance is redacted, meaning that it is not known what other criteria are applied. The guidance does have specific sections, though, on:
  • low level criminality (e.g. caution, warnings, conditional discharge etc.), when numerous in number
  • association with known criminals, looking at the extension of the connections and the impact of the activities of these known criminals
  • involvement with gangs, including how senior an individual is in that gang
  • pending prosecutions (in this case, the Secretary of State may decide to put the application on hold until the outcome of the prosecution)
  • extradition requests
  • public order risks (including if an individual previously made speeches including violence or which brought other persons to commit offences)
  • membership, support or financing or a proscribed organisation
  • unacceptable behaviours (as per the list above)
  • war crimes
  • deliberate debting, when a person is indebted deliberately and recklessly and there is no evidence of an intention to pay off these debts
  • where a person has benefited from the proceeds of crime
  • involvement in corruption
  • where a person’s presence in the UK could unfavourably affect foreign policy
  • assisting in the evasion of immigration controls, including by providing false documents or being involved in a sham marriage
  • employing illegal workers
  • deception and dishonesty dealing with the government, including by defrauding the benefit system or failing to declare convictions.
One is left with the impression that paragraph 320(19) is used as a "catch all" provision to be deployed whenever an immigration officer would like to refuse an individual but that individual does not fall in any of the other grounds for refusal. [post_title] => Discretionary refusals based on poor conduct or behaviour [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => discretionary-refusals-based-poor-conduct-behaviour [to_ping] => [pinged] => [post_modified] => 2017-04-27 11:56:17 [post_modified_gmt] => 2017-04-27 10:56:17 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50212 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50210 [post_author] => 23 [post_date] => 2017-04-27 11:45:12 [post_date_gmt] => 2017-04-27 10:45:12 [post_content] => [caption id="attachment_50211" align="alignnone" width="1280"] Image credit: Techcrunch[/caption]There is provision in the Immigration Rules for the Secretary of State personally to order the exclusion of a person from the UK. Where this occurs, refusal is mandatory under paragraph 320(6). Previous examples of personal orders for exclusion from the UK include Snoop Dogg, Edward Snowden and Pamela Geller.In 2005 the Government published a list of unacceptable behaviours that might lead to a person being added to this visa "black list":
The list of unacceptable behaviours is indicative rather than exhaustive. It covers any non-UK national whether in the UK or abroad who uses any means or medium including:
  • Writing, producing or distributing material;
  • Public speaking including preaching
  • Running a website; or
  • Using a position of responsibility such as teacher, communty or youth leader
To express views which:
  • Format, justify or glorify terrorist violence in furtherance of particular beliefs;
  • Seek to provoke others to terrorist acts;
  • Foment other serious criminal activity or seek to provoke others to serious criminal acts or
  • Foster hatred which might lead to inter-community violence in the UK.
The list was confirmed as current in a Parliamentary written question on 22 January 2015 and in a House of Commons Library research briefing on ‘Visa bans’: Powers to refuse or revoke immigration permission for reasons of character, conduct or associations.[su_box title="Example: Tyler, the Creator"]It was reported in 2015 that rap artist Tyler, the Creator, had been banned from entry to the UK for a period of three to five years. He shared the content of his refusal of entry letter with The Guardian, which referred to the "behavior guidelines" and went on:
The home secretary has considered whether, in light of this list, you should be excluded from the UK on the grounds that your presence here would not be conducive to the public good ... The home secretary has reached this decision because you have brought yourself within the scope of the list of unacceptable behaviour by making statements that may foster hatred, which might lead to intercommunity violence in the UK ...Your albums Bastard, in 2009, and Goblin, in 2011, are based on the premise of your adopting a mentally unstable alter ego who describes violent physical abuse, rape and murder in graphic terms which appears to glamourise this behaviour.
Tyler was given no advance warning, was detained, refused entry and removed.[/su_box]This briefing confirms that the list of unacceptable behaviours is still current as at 21 July 2016, records that “hundreds” of people have been excluded under it since 2010 and points out that no application to come to the UK needs to have been made before a person is added to the list. [post_title] => Character, conduct and associations: unacceptable behaviours list [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => character-conduct-associations-unacceptable-behaviours [to_ping] => [pinged] => [post_modified] => 2017-04-27 11:45:57 [post_modified_gmt] => 2017-04-27 10:45:57 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50210 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50209 [post_author] => 23 [post_date] => 2017-04-27 11:37:30 [post_date_gmt] => 2017-04-27 10:37:30 [post_content] =>

Paragraph 320(2) of the Immigration Rules provides mandatory grounds for refusal for individuals who have been sentenced to a period of imprisonment. Accordingly,  an application must be refused if:
the person seeking entry to the United Kingdom:(a) is currently the subject of a deportation order; or(b) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or(c) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or(d) has been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.Where this paragraph applies, unless refusal would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors.
Similar provisions for applications under Appendix FM are found at paragraph S-E.C.1.4. For visitors, it is paragraph V 3.4 of Appendix V.A person who has been sentenced to a period of imprisonment of at least four years is permanently excluded from the UK unless there are exceptional circumstances.Those who have been convicted to periods of imprisonment of less than four years will be banned from the UK for a period of 10 years (if sentenced to imprisonment for a period between 12 months and 4 years) or 5 years (for sentences of less than 12 months). The “ban” starts from the end of the sentence, where the sentence is the entire sentence imposed, rather than simply the time spent in prison.However, this does not include:
  • suspended sentences (unless that sentence is subsequently ‘activated’), or
  • convictions which are subsequently quashed on appeal.
If sentences are increased or reduced on appeal but the person remains convicted of the offence, the ‘revised’ sentence length will apply.[su_box title="Example 1"]Louis was convicted of an offence in the US and sentenced to 3 years imprisonment on 3 January 2013. His sentence therefore ended on 3 January 2016. Louis is released for good conduct on 4 January 2015. However, any application to enter the UK will be refused until 3 January 2026, that is until 10 years have passed since the end of the 3 years sentence.[/su_box][su_box title="Example 2"]Jasmine is convicted of an offence and sentenced to 18 months imprisonment on 6 March 2014. She appeals against the sentence and her sentence is decreased to 11 months. Any application she makes to enter the UK will be refused until 6 February 2020, on the five year anniversary of the end of her reduced sentence.[/su_box]

Offences committed outside the UK

Offences committed outside the UK will have the same effect as those committed inside the UK.This can have harsh consequences where a given country imposes sentences of imprisonment considerably in excess of standard UK sentencing for an equivalent offence. For example, some drugs offences considered relatively minor in the UK and which would not necessarily attract a prison sentence at all can be very harshly sentenced in other countries, for example in Russia.For those who have been sentenced to a period of imprisonment, the length of time during which they will not be allowed in the UK will remain the same. For those who have not been given a prison sentence, the Home Office should, where there is no identical or similar provision, find a domestic sentence which is the nearest equivalent. However, as explained above, if an individual has been convicted of an offence which is not considered an offence under British law, such as proselytism, this offence will be disregarded.

Exceptions to mandatory bans

Applications for entry clearance might be granted despite prison sentences in certain limited circumstances. These exceptions do not appear in the rules themselves but instead are set out in a separate Home Office policy document: General grounds for refusal: Section 1.

Breach of ECHR or Refugee Convention

The Home Office's guidance states this exception is likely to be rare, and most likely to apply in cases where a person was deported from the UK, but their deportation order was later revoked on the grounds that it violated the ECHR, the Refugee Convention or compassionate grounds. This does not mean that the person will be allowed to claim asylum or make an application for protection from outside the UK.

Exceptional circumstances

The Home Office defines the scope of the exception as follows:
This means a situation where refusal would be unjustifiably harsh. A person who is convicted of a criminal offence and sentenced to imprisonment, regardless of whether this is in the UK or elsewhere, must be aware it can affect their ability to gain entry to other countries. Therefore, it would take compelling factors to grant entry clearance or leave to enter when they would otherwise be refused.
The guidance goes on to state that a non-exhaustive list of circumstances which might be considered exceptional:
• since conviction, the passage of time or the personal circumstances of the person have significantly changed such that maintaining a refusal would be so perverse as to undermine confidence in the immigration system• there is reliable evidence to suggest the conviction was politically motivated• the person concerned intends to make a significant investment in the UK - for example, buying or heavily investing in a major company, so by refusing entry it would not be in the national interest
Rather controversially, the third exception essentially allows a wealthy convict to buy their way into the UK. The fact that the list is specifically stated to be non-exhaustive does mean there may be some scope to argue, for example, that an exception might potentially be made where the applicant has received a foreign prison sentence which would be considered harsh and excessive by UK standards.However, the Home Office guidance makes it clear that only compelling circumstances will justify a grant despite the conviction, and that the starting point should always be a refusal.

Conviction for an offence not recognised in the UK

In the case of offences which are not recognised in the UK, individuals should be treated as if they never were convicted. Examples could include convictions for same-sex relationships or proselytism. Note that it is the offence itself, rather than the sentence which needs to not be recognised in the UK, rather than the conviction.This type of exception seemed potentially to have arisen when Chinese dissident artist Ai Weiwei was refused entry to the UK. The decision to refuse him entry was quickly reversed but the initial decision seemed to be on the basis of failure to declare a conviction that was not publicly recorded anywhere.This exception is different from convictions which  the treatment of offences which occurred outside of the UK (see below). [post_title] => Prison sentences [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => prison-sentences [to_ping] => [pinged] => [post_modified] => 2017-04-27 11:38:29 [post_modified_gmt] => 2017-04-27 10:38:29 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50209 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw )