Re Entry Ban UK under Paragraph 320(7b) of the Immigration Rules

Re Entry Ban UKThis post explains how long an applicant must be refused for if the applicant has been removed from the UK or left by assisted voluntary return (AVR).

This relates to general grounds for refusal under paragraph 320(7B) of the rules. For visitors, refusal under paragraphs V 3.10 of Appendix V.

Reasons and Lengths of UK Re-entry Bans

Individuals seeking to come to the UK may be refused entry because they are the subject of a one, 2, 5 or 10-year re-entry ban.

People may be the subject of a re-entry ban where they have previously breached the UK’s immigration laws by:

  1. overstaying, for definition see ‘Administrative removal: categories’ of Liability to administrative removal (non EEA) – consideration and notification
  2. breaching a condition attached to their leave
  3. being an illegal entrant, for definition see ‘Administrative removal: categories’ of Liability to administrative removal (non EEA) – consideration and notification
  4. using deception in an application for entry clearance, leave to enter or remain (whether successful or not)

One Year Re Entry Ban for voluntary departure at a person’s own expense

Unless they are applying for entry clearance as a family member (under Appendix FM of the Immigration Rules), or they were under 18 at the time of their most recent breach (as set out at paragraphs A320 and 320(7B) of the Immigration Rules), the following categories of offender will ordinarily be subject to a mandatory one year re-entry ban if they leave the UK voluntarily 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

Re-entry bans after voluntary departure (one year, 2 years or 5 years)
Re-entry bans after enforced removal or deportation (10 years)

Removal with the Previous Breach and Voluntary Leaving the UK

An applicant who has previously breached UK immigration laws and has been removed will then have future applications refused for 10 years.

If an applicant has previously been given a notice identifying them as an immigration offender (form IS.151A), the applicant may still have left the UK voluntarily. In such cases, the applicant’s future applications must be refused under paragraph 320(7B) for 1, 2 or 5 years.

Refusal or Removal at the Port of Entry- One Year Ban

Applicants who have been refused or removed at port of entry are only subject to a one year ban if they have fully complied with the terms and conditions placed on them by the refusing port.

Meaning of Removal for Paragraph 320(7B)

For the purpose of paragraph 320(7B) of the rules ‘removal decision’ means:

  • a decision to remove in accordance with section 10 of the Immigration and Asylum Act 1999
  • a decision to remove an illegal entrant by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971
  • a decision to remove in accordance with section 47 of the Immigration, Asylum and Nationality Act 2006

2 or 5 Years Re-entry Ban UK: AVR at Public Expense

An applicant who has previously breached UK immigration laws and who left the UK voluntarily at public expense through either an assisted voluntary return or assisted voluntary return for irregular migrants will have future applications refused for 2 or 5 years.

For applicants who returned under the voluntary assisted returns and reintegration programme, it must be satisfied that the applicant has breached UK immigration laws. If this is the case, they will also have future applications refused for 2 or 5 years.

A person left the UK otherwise voluntarily at the Secretary of State’s expense

Not all people who leave the UK voluntarily at the Secretary of State’s expense will
necessarily depart through an AVR programme. Some may express a desire to
leave the UK, but departure through an AVR programme is not pursued because
either:

  • they do not wish to return by this route
  • they are not eligible to return by this route
  • their application has been rejected or excluded

Those who leave the UK voluntarily, but their flight ticket is purchased by the
Secretary of State (self-check-in removals for example) are also recorded as
voluntary departures at Secretary of State’s expense.

Calculating the Period of Overstay in the UK

For the purposes of calculating the period of overstaying specified in the paragraph
above, the following will be disregarded:

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

When one or more of the above conditions are met, entry clearance is refused if the applicants apply within the following periods (when the relevant breach took place in the UK, the start date for calculating the ban period is the date the applicant left the UK):

  • one year if they left the UK voluntarily (not at public expense) – where they were refused at the port, they must have followed all conditions imposed by the port (such as temporary admission conditions) and then been removed at the carrier’s expense, to qualify for only a one year ban;
  • 2 years if they left the UK voluntarily, at public expense, no more than 6 months after the date on which they were given notice of their removal decision, or no more than 6 months after the date on which they exhausted their appeal rights against that decision, whichever is the later;
  • 5 years if they left the UK voluntarily, at public expense;
  • ten years if they were removed from the UK at public expense;
  • 10 years if they used deception (which includes using false documentation) in support of a previous application for entry clearance;
  • 5 years if they left or were removed from the UK as a condition of a caution issued in line with section 22 of the Criminal Justice Act 2003;

When the applicant has breached more than one of the UK’s immigration laws, that breach which leads to the longest period of absence from the UK needs to be taken into account.

Before the application is refused under paragraph 320(7B), it must be checked if the applicants are applying in a category which is free from this rule under paragraph A320, B320 or 320(7B).

It needs to be satisfied that deception has been used and/or the applicant intended to deceive about a previous breach. This will mainly relate to how the applicant has completed the questions about previous visa refusals or the grant or refusal of leave to remain (LTR) on the visa application form (VAF)

When the applicant left the UK voluntarily at public expense, it must be found out whether a 2 year or 5-year mandatory re-entry ban applies depending on whether or not they left more than 6 months after their removal decision or more than 6 months after they exhausted their subsequent appeal rights.

In some circumstances, the 6-month timeframe in which a person must depart to benefit from a 2-year ban, rather than a 5-year ban, may be reset to start again. The 6-month clock will have been re-set where:

  • the removal decision was substituted for a new decision where a fault was found with the original decision;
  • the applicant was appeal rights exhausted, but then lodged an out-of-time notice of appeal with the Tribunal seeking an extension of that 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;
  • the applicant made further submissions to the Secretary of State which, following consideration under paragraph 353 of the Immigration Rules, was refused but were found to constitute a fresh claim – 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 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, whichever is the later;
  • the applicant made further submissions to the Secretary of State which were only determined more than 12 months after their submission – 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 the further submissions were determined and found not to constitute a fresh claim.

Working Holidaymaker

A working holidaymaker will breach their conditions if they work in the UK for more than 12 months. The application cannot be refused under paragraph 320(7B) if they previously worked in the UK for 12 months or less as a working holidaymaker.

Standard of Proof

This explains the standard of evidence needed an application for entry clearance is refused on general grounds under paragraph 320(7B) of the rules. For visitors refusal under paragraphs V 3.9 of Appendix V. When it is checked whether an applicant has breached a condition attached to their leave, the relevant guidance, and Immigration Rules must be reviewed for that entry clearance category.

Evidence of the Previous Breach Required- Refusal under 320(7B)

To refuse under paragraph 320(7B), the ECO must have good evidence that the applicant has previously breached the UK immigration law. The legal standard of proof required is ‘balance of probabilities’This means that it is more likely than not that they have breached UK immigration law.

Applicant Unaware of the Previous Breach on Deception

When an applicant has previously breached immigration law by using deception, they may claim that they were unaware that the document or information they gave was false. Unless the applicant can prove this, the application must be refused.

False Documents- Written Confirmation of the Author

When a false document refers directly to the applicant (for example employment references, qualifications or financial details)the claim should not be accepted unless the applicant can give clear evidence that an error has been made. This could be written confirmation from the author of the document to confirm that they had previously supplied us with incorrect information. If the applicant cannot give such proof, it could be assumed that the officer who took the decision used the correct burden and standard of proof, unless the decision was later overturned at appeal.

Examples of when it could be assumed that the officer used the correct standard of proof for establishing deception:

  • the Home Office holds an electronic copy of the refusal notice only – the applicant was refused for failing to meet the needs of their immigration category but the notice mentioned that they had used false documents;
  • the Home Office holds an electronic copy of the refusal notice only – the applicant was refused under 320(7A), 320(11) or other deception rules;
  • the Home Office holds an electronic copy of the refusal notice which makes reference to deception and the false documents or relevant papers.

Earlier UK Visa Refusal Decision Overturned in an Appeal

In cases where the earlier decision was overturned on appeal, it must be looked at the determination to see if it overturned the finding that deception was used. If it did, then paragraph 320(7B) to future applications must not be applied. If the determination is not available, then the applicant must be given the benefit of the doubt and assume that the decision on this point was overturned.

Refusal on General Grounds: Paragraph 320(7B) does not apply

This post explains when an application for UK Visa and Immigration must not be refused under paragraph 320(7B). For visitors, an application must not be refused under paragraph V 3.7-11 of Appendix V.

Paragraph A320 of the Immigration Rules states an applicant cannot be refused under paragraph 320(7B) if they apply for entry clearance, leave to enter and/or remain as a family member under Appendix FM.

Paragraph B320 states an applicant cannot be refused under paragraph 320(7B) if they apply for entry clearance, leave to enter and/or remain under Appendix armed forces.

Paragraph 320(7B) also states it only applies where the applicant was aged 18 or over at the time of their most recent breach of the UK’s immigration laws.

In addition, the application must not be refused entry clearance under paragraph 320(7B) if:

  • they used false documents or made false representations in a previous visa or leave to enter or remain application, but the applicant was not aware that the documents or representations were false – this only applies if the applicant can prove they were unaware of the deception;
  • the period specified for automatically refusing applications has come to an end;
  • after a person has breached UK immigration laws, the Home Office has given a visa or leave to enter or remain in the knowledge of that breach – for example, a student who has overstayed but was granted leave to enter following an out of time application

Concessions Outside the Immigration Rules

An application must not be refused under paragraph 320(7B) if the applicant:

  • has been accepted by the Home Office as a victim of trafficking;
  • was in the UK illegally on or after 17 March 2008 and left the UK voluntarily before 1 October 2008.

Victims of Trafficking

If an applicant states that the Home Office has accepted them as a victim of trafficking, the information must be checked.

17 March 2008 Concession

This concession only applies to voluntary departures, whether or not at public expense. It does not apply when the person was removed or deported from the UK. If an applicant has previously been issued with a notice identifying him as an immigration offender (Form IS151A) or a decision has been made to remove him (Form IS141A part 2 or IS151B), the applicant may still have left the UK voluntarily.

Students refused leave to remain after 1 September 2007

An application must not be refused under paragraph 320(7B) for overstaying in the UK if they were refused leave to remain as a student solely on the basis that they had made an out of time application.

UK Visa Refusal under Paragraph 320(11) of the Immigration Rules

If an applicant has previously breached the immigration laws but is applying in a category which is exempt from paragraph 320(7B), it must be considered whether it is appropriate to refuse the application under paragraph 320(11) of the Immigration Rules.

Previous Breach of the UK Immigration Rules by an Applicant

Refusal under Paragraph 320(7B) of the Immigration Rules and Paragraph V 3.7-11 of Appendix V for visitors because the applicant has previously breached UK immigration laws (and was 18 or over at the time or the most recent breach) by:

  • overstaying;
  • breaching a condition attached to their leave;
  • being an illegal entrant
  • using deception in an application for a visa, leave to enter or leave to remain

unless the applicant:

  • overstayed for 90 days or less and left the UK voluntarily, not at the expense of the Secretary of State (whether directly or indirectly);
  • used deception in an application for entry clearance more than 10 years ago;
  • left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;
  • left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than two 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 the removal decision, or no more than 6 months after the date on which the person no longer had a pending appeal, whichever is the later;
  • left the UK voluntary at the expense of the Secretary of State (directly or indirectly), more than 5 years ago;
  • was removed or deported from the UK more than 10 years ago;
  • left or was removed from the UK as a condition of a caution issued in accordance with s.134 Legal Aid, Sentencing and Punishment of Offenders Act 2012 more than 5 years ago.

Meaning of a ‘Removal Decision’ under Paragraph 320(7B)

For the purpose of paragraph 320(7B) of the rules ‘removal decision’ means:

  • a decision to remove in accordance with section 10 of the Immigration and Asylum Act 1999;
  • a decision to remove an illegal entrant by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971;
  • a decision to remove in accordance with section 47 of the Immigration, Asylum and Nationality Act 2006;

Meaning of a Pending Appeal is same as per Section 104

pending appeal has the same meaning as in section 104 of the Nationality, Immigration and Asylum Act:

  • the applicant has left the UK voluntarily at the expense of the Secretary of State (directly or indirectly), more than 5 years ago;
  • the applicant was removed from the UK more than 10 years ago;
  • the applicant was unaware that the documents submitted or representations made were false;
  • the applicant was previously issued a visa in the knowledge of the immigration breach;
  • the applicant was in the UK illegally on or after 17 March 2008 and left the UK before 1 October 2008;
  • the applicant was refused leave to remain as a student solely on the basis that they made an out of time application;
  • the applicant has been accepted by the Home Office as a victim of trafficking.

Overstaying and Calculation of Re-Entry Ban under Paragraph 320(7B)

When determining whether a re-entry ban applies because of paragraph 320 (7B) the period of overstaying must be 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 the:

  • time limit attached to the last period of leave granted;
  • period their leave was extended under sections 3C or 3D of the Immigration Act 1971;
  • date an applicant receives a ‘notice of invalidity’ which tells them their application, provided the application was submitted before the time limit attached to the last period of leave, has expired.

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