Refusal on General Grounds: Paragraph 320(7B) does not apply
For visitors, an application must not be refused under paragraph V 3.7-11 of Appendix V.
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.
Paragraphs A320 and B320 of Immigration Rules Part 9: Grounds for Refusal reads as under:
A320. Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM, and Part 9 (except for paragraph 322(1)) does not apply to an application for leave to remain on the grounds of private life under paragraphs 276ADE-276DH.
B320(1). Subject to sub-paragraph (2), paragraphs 320 (except sub-paragraphs (3), (7B),(10) and (11)) and 322 (except sub-paragraphs (2), (2A) and (3)) do not apply to an application for entry clearance, leave to enter or leave to remain under Appendix Armed Forces.
(2) As well as the sub-paragraphs mentioned above, sub-paragraph (13) of paragraph 320 also applies to applications for entry clearance, leave to enter or leave to remain under Part 9, 9A or 10 of Appendix Armed Forces.
Paragraph 320(11) of Immigration Rules of the Immigration Rules Part 9: Grounds for Refusal reads as under:
320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:
(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:
(i) overstaying; or
(ii) breaching a condition attached to his leave; or
(iii) being an illegal entrant; or
(iv) 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);
and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.
Paragraph V 3.7-11 of Appendix V Immigration Rules for Visitors reads as under:
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)
(a) 12 months left voluntarily at their own expense.
(b) 2 years left voluntarily at public expense within 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 years left voluntarily at 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 years 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 (and providing that any condition prohibiting their return to the UK has itself expired)
(e) 10 years was deported from the UK or was removed from the UK at public expense
(f) 10 years used 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.