This guidance relates to re-entry ban UK under paragraphs 320(7B) and 322(2) due to a previous breach of Immigration Rules. In fact, a person gets a 1-10 years re-entry ban UK due to overstaying, voluntary departure, removals, deportation, breaching a condition attached to the leave, illegal entry to the UK and using false documents or statements in an application.
UK VISA RE-ENTRY BAN UNDER PARAGRAPH 320(7B)
An applicant usually gets re-entry ban UK under paragraph 320(7b) of immigration laws for a previous breach. Perhaps, the previous breach could be due to:
- breaching a condition attached to the leave
- illegal entry to the UK
- using deception in an application
THE SEVERITY OF PREVIOUS BREACH AND DURATION OF THE BAN
Perhaps, the refusal letter relating to re-entry ban under paragraph 320(7b) of immigration rules, may usually state:
…You have [been in the UK illegally, breached your conditions of stay, overstayed/used deception in an application for leave to enter or remain] and [left the UK voluntarily at own/public expense on…][ was removed/deported from UK on……]. I am therefore refusing you entry clearance under paragraph 320(7B) of the Immigration Rules. Any future applications may also be refused, for the same reason, under paragraph 320(7B) of the Immigration Rules until [1, 2, 5 or 10 years after the applicant left the UK]….
Therefore, depending on the severity of the previous breach an applicant gets a 1-10 years UK re-entry ban under paragraph 320(7b) or 322(2) of the Immigration Rules:
- 1-Year UK visa re-entry ban if a person has voluntarily departed at his/her own expense
- 2 or 5 Year UK visa re-entry ban if the person voluntarily departed at public expense
- 5-Year UK visa re-entry ban if a person has left or removed as a condition of a caution
- 10-year UK visa re-entry ban for using deception in the previous application or removal or deportation at public expense
How to Challenge the 10-Year UK Visa Re-Entry Ban?
Indeed, an applicant can challenge the re-entry ban UK under paragraph 320(7b) of the Immigration Rules. Accordingly, for an appealable immigration refusal decision, an applicant can file an appeal within 14-28 days of the decision. However, can also file a judicial review within 3 months against a decision with no or limited right of appeal.
HOW TO REMOVE 10-YEAR UK VISA RE-ENTRY BAN DUE TO FALSE DOCUMENTS?
Perhaps, when a false document refers directly to an applicant then he/she can give an evidence that an error has been made. For instance, in case of a 10-year re-entry ban UK due to false employment references, qualifications or financial details an applicant can provide a written confirmation from the author of the document to confirm that they had previously supplied the Home Office with incorrect information. However, if an applicant is not able to give such proof then it means that the previous decision used the correct burden and standard of proof. Perhaps, unless an appeal later-on overturned the decision.
WHAT IF AN APPEAL HAS OVERTURNED AN EARLIER DECISION?
In cases where an appeal had overturned the earlier decision then the decision maker ascertains whether the determination has also overturned the finding relating to the use of deception. Accordingly, if an appeal had overturned the decision relating to deception then a re-entry ban UK under paragraph 320(7B) is not applicable. However, if the determination is not available, even then the applicant usually gets the benefit of the doubt. And the decision maker assumes that the appeal has also overturned decision relating deception as well.
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The Starting Date of the UK Visa Re-entry Ban
In fact, the starting date for calculating re-entry ban under paragraph 320 of Immigration Rules is:
- the date of previous breach, which in case of deception ban under paragraph 320(7a) is the refusal date or
- when the applicant has left the UK in case of voluntary departure, removal or deportation
If an applicant has breached more than once then the breach leading to the longest period of absence is applicable.
How to Calculate the Duration of Overstay?
When determining whether a re-entry ban UK applies because of paragraph 320 (7B) the period of overstaying is calculated in line with the interpretation of overstaying under paragraph 6 of the Immigration Rules.
“Overstayed” or “Overstaying” means the applicant has stayed in the UK beyond the latest of:
(i) the time limit attached to the last period of leave granted, or
(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971
Accordingly, an entry clearance application is subject to a re-entry ban UK from one to ten years under paragraph 320(7B) if the applicant had previously overstayed in the UK unless: the applicant overstayed for:
- 30 days or less, or
- 90 days or less if the overstaying began before 6 April 2017,
And the applicant left the UK voluntarily, not at the expense of the Secretary of State, subject to the following exceptions:
- duration up to 28 days if an application had made a leave to remain application prior to 24 November 2016. Perhaps, this may include any period of overstaying due to a pending application, appeal or administrative review.
- in relation to which paragraph 39E of the Immigration Rules applies for out of time applications made on or after 24 November 2016. And, any period of overstaying due to a pending application, appeal or administrative review
- arising from a decision of the Secretary of State. And the Court or Tribunal subsequently overturned, quashed or directed the Secretary of State to reconsider the decision. However, an applicant needs to bring such a challenge within 3 months of the decision.
1. A 10-Year UK Visa Re-entry Ban due to Deception
An entry clearance application is automatically refused for up to 10 years under paragraph 320(7B) if the applicant had previously used deception in a leave to enter [320(7A)] or remain [(322(1A), 322(2) or 322(2A)] application unless the applicant used deception more than 10 years ago. Apparently, in the context of re-entry ban UK, deception means:
- false representation
- false representation
- nondisclosure of material facts
However, for re-entry ban UK under paragraph 320(7B), there should be a good evidence of previous breach. The legal standard of proof required is ‘balance of probabilities’. This means that it is more likely than not that the applicant has breached the immigration law.
2. The Person Voluntarily Departed at Own Expense
If a person has overstayed and left voluntarily at own expense then gets to a re-entry ban UK under paragraph 320(7B) for up to one year from the date of voluntary departure from the UK. For instance, if a person overstayed in the UK and subsequently voluntarily left the UK on Jan 1, 2019, at own expense then any future entry clearance application will remain subject to re-entry ban UK until Jan 1, 2020. Accordingly, the following immigration offenders usually get a mandatory 1-year re-entry ban UK if they voluntarily leave at their own expense:
- illegal entrants
- those who breach a condition attached to their leave
- those who overstay their lawful leave by more than:
- 90 days, excluding any exceptional periods, where the overstaying began up to and including the 5 April 2017
- 30 days, excluding any exceptional periods, where the overstaying began on or after 6 April 2017
Furthermore, the 12 months re-entry ban is not applicable for entry clearance as a family member (under Appendix FM of the Immigration Rules), or if the applicant was under 18 at the time of the most recent breach as set out at paragraphs A320 and 320(7B) of the Immigration Rules. For instance, if a person overstayed in the UK and subsequently voluntarily left the UK at own expense on Jan 1, 2019, then he/she don’t need to wait for 12-months before applying for spouse visa entry clearance application under Appendix FM.
3. The Person Voluntarily Departed at Public Expense
When the applicant left voluntarily at public expense, then gets a 2 or 5-year mandatory reentry ban under paragraph 320(7B) of the immigration rules. However, the duration of the re-entry ban UK depends on whether they left more than 6 months after their removal decision or more than 6 months after they exhausted their subsequent appeal rights. Therefore, in some circumstances, the 6-month timeframe may reset due to:
- new decision
- late appeal
- fresh claim
- further submissions
3.1 New Decision
If a new decision substitutes an earlier removal decision due to a fault in the original decision.
3.2 Late Appeal
The applicant’s appeal rights exhausted, but then lodged an out-of-time notice of appeal with the Tribunal seeking an extension of the time limit and the Tribunal extended the time limit – in these circumstances, the applicant will be subject to a 2 year re-entry ban where they left the UK voluntarily at public expense no more than 6 months after the date on which their subsequent out-of-time appeal was eventually dismissed.
3.3 Fresh Claim
If the applicant had made further submissions to the Secretary of State following consideration under paragraph 353 of the Immigration Rules then the applicant may subject to a 2 year re-entry ban if the person had left the UK voluntarily at public expense:
- no more than 6 months after the date of their latest removal decision or
- no more than 6 months after the date on which they no longer had a pending appeal against that decision
3.4 Further Submissions
If the applicant made further submissions to the Secretary of State. And the Home Office determined further submission after more than 12 months. Then the applicant may get a 2 year re-entry ban if:
- the applicant had left the UK voluntarily at public expense no more than 6 months after the date on which the Home Office had determined further submissions; and
- further submission did not to constitute a fresh claim
4. A 2-5 Yrs Re-entry Ban after AVR
An applicant who has previously breached UK immigration laws and who left the UK voluntarily at public expense through an assisted voluntary return (AVR) or AVR for irregular migrants will have future applications refused for either 2 or 5 years. For applicants who returned under the voluntary assisted returns and reintegration programme, the decision maker needs to satisfy that the applicant has breached UK immigration laws. Therefore, may subject such applicants with a 2 or 5 years re-entry ban after assisted voluntarily removal.
Perhaps, not all people who leave the UK voluntarily at the Secretary of State’s expense may necessarily depart through an AVR programme. Accordingly, some people may express a desire to leave the UK but may not wish to return home through an AVR programme but at their own expense. Moreover, some may not be eligible to return through AVR because of rejection or exclusion of their application. Apparently, those person who left the UK voluntarily, but the Secretary of State had purchased the flight ticket such as self-check-in removals are also recorded as voluntarily departures at Secretary of State’s expense.
5. A 10 Year Re-entry Ban due to Removal or Deportation
If the Home Office had previously removed a person then such persons usually gets a 10-year re-entry ban UK. Perhaps, for the purpose of paragraph 320(7B) of the immigration rules, a removal or deportation decision relates to:
- Immigration and Asylum Act 1999: under section 10 the Home Office may remove/deport a person. If a person requires a leave to enter or remain in the UK but does not have it.
- The Immigration Act 1971: under paragraphs 8-10 of Schedule 2 Home Office can remove/deport an illegal entrant.
- Immigration, Asylum and Nationality Act 2006: a removal decision under section 47 against a person with a statutorily extended leave to remain in the UK. However, a statutorily extended leave occurs where a person has made an ‘in-time’ application to vary leave to remain. And also where the UK Border Agency is curtailing leave to remain. Accordingly, the statutorily leave extends until the determination of any appeal against the variation or curtailment decision.
Therefore, if an applicant was voluntarily or involuntarily removed or deported from the UK, then a subsequent entry clearance application is subject to a 10-year re-entry ban under paragraph 320(7B) of the Immigration Rules.
However, if the Home Office had previously given a notice identifying a person as an immigration offender (form IS.151A). And the applicant had left the UK voluntarily then gets a 1-5 years re-entry ban instead of a 10-year ban.
6. Removal at the Port of Entry
If a person gets a 1-year re-entry ban after removal at the UK port of entry. Perhaps, only if the person has fully complied with the terms and conditions placed by the refusing port.
7. Removal as a Condition of Caution
A migrant gets a 5-year re-entry ban under paragraph 320(7b) if he/she previously removed as a condition of caution. Accordingly, the refusal letter may state:
“……You have asked for leave to enter the United Kingdom as a [category]. However, on [date] you were issued with a conditional caution for [offence] and removed from the UK. In accordance with section 134 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, you accepted the condition to leave the UK and not to return for a specified period. You were also made aware that the immigration rules require that leave to enter be refused to a person subject to such a caution condition who seeks to enter the UK within five years of their removal or departure from the UK. Accordingly, your application for leave to enter is refused…..”
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When re-entry ban under paragraph 320(7B) is not applicable?
A re-entry ban under paragraph 320(7B) of Immigration Rules is not applicable in the following circumstances:
- Family members applying under Appendix FM
- Family members applying under Appendix Armed Forces
- Children under the age of 18 years
- An applicant not aware of the false documents/representation
- If the the specified period of re-entry ban ends
- If the Home Office grants leave in spite of a breach
- Concessions outside the Immigration Rules
- Students refused leave to remain after 1 September 2007
- If an appeal overturned an earlier decision
- Working holiday maker
1. Family members under Appendix FM
In terms of paragraph A320 of the Immigration Rules, a family member application under Appendix FM is not subjected to 320 (7b) re-entry ban. However, such applications may be considered under paragraph 320(11) for contriving the intentions of immigration rules in a significant way to frustrate the rules.
2. An application under Appendix Armed Forces
In terms of paragraph B320 of the Immigration Rules, applications under Appendix Armed Forces are not refused under paragraph 320(7B).
3. Children under the age of 18 years
Paragraph 320(7B) is only applicable where the applicant is 18 or over at the time of the most recent immigration breach.
4. An applicant not aware of the false documents or representation
A UK Visa re-entry ban under paragraph 320(7B) is also not applicable if an applicant is accused of using false documents or making false representations in a previous application. And the applicant was not aware of the false documents or representations. However, an applicant needs to prove that he/she was not unaware of the deception.
5. After the end of specified period
Certainly, when the specified period of 1, 2, 5 or 10 for re-entry ban ends then an entry clearance application may no longer remain subject to a refusal under paragraph 320(7B) of the immigration rules. For instance, a person deported from the UK on April 1, 2009, then the specified period of 10 years after the deportation will end on March 31, 2019.
6. The Home Office grants leave in spite of a breach
If after a person has breached UK immigration laws, the Home Office gives a visa or leave to enter or remain in the knowledge of that breach then refusal under 320(7B) for a previous breach of immigration rules no longer remain applicable. For instance, if an overstayed student gets a leave to enter following an out of time application.
7. Concessions Outside the Immigration Rules
In fact, a re-entry ban under paragraph 320(7B) is not applicable if the Home Office accepts the applicant as a victim of trafficking. And also for all those applicants who were in the UK illegally on or after March 17, 2008 (known as March 17, 2008 Concession) but left the UK voluntarily before 1 October 2008. The March 17, 2008 concession only applies to voluntary departures, whether or not at public expense. Certainly, it does not apply for removal or deportation.
8. Students refused leave to remain after 1 September 2007
An applicant does not get a re-entry ban UK under paragraph 320(7B) for overstaying if the applicant was refused a leave to remain as a student solely on the basis that the applicant had made an out of time application.
9. An appeal overturned an earlier decision
In cases where the earlier decision is overturned in an appeal, then the decision maker needs to ascertain whether the determination has also overturned the finding relating to the use of deception. Accordingly, if the appeal overturns the decision relating to deception then a re-entry ban under paragraph 320(7B) is not applicable. Moreover, even if the determination is not available, then the applicant is usually given the benefit of the doubt and decision maker assumes that the decision on this point is overturned.
10. Working holidaymaker
A working holidaymaker will breach their conditions if they work in the UK for more than 12 months. However, a decision maker can not refuse application under paragraph 320(7b) if the working holidaymaker has previously worked in the UK for 12 months or less as a working holidaymaker.
For Case Discussion and Representation
*What happens next?
Multilingual qualified London based immigration specialists will get back to you. Perhaps, usually within 2-3 working days. If you have not attached any documents, then the UK based Law firm may ask for the relevant Case-Specific Document(s) such as Refusal Letters, Deportation Orders, Application Forms etc. Moreover, after reviewing the papers and information, the legal advisor may advise a course of action and also quote the fees for processing the application.
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