Previous Breach of UK Immigration Rules- UK Visa Refusal

General Grounds for Refusal: Previous Breach of Immigration Rules

 

This post explains consideration when an applicant applying for entry clearance has previously breached UK immigration laws.

This relates to general grounds for refusal under paragraph 320(7B) of the Immigration Rules. For visitors, refusal under paragraphs V 3.7-11 of Appendix V.

The 13 December 2012 rules changes on criminality thresholds changed the refusal paragraphs.

Refusal under Paragraph 320(7B) of the Immigration Rules

When an applicant has breached UK immigration laws in one or more of the following ways (and was 18 or over at the time of their most recent breach) and is applying for entry clearance within the periods set out below, the application is refused under paragraph 320(7B):

  • overstayed (unless they overstayed for 30 days or less, or 90 days or less if
    the overstaying began before 6 April 2017, and left the UK voluntarily and
    not at public expense, subject to the exceptions set out in the paragraph
    below;
  • breached a condition attached to their leave;
  • been an illegal entrant;
  • used deception in an application for entry clearance or leave to enter or remain, or to obtain documents from the Secretary of State or a third party required in support of the application (whether the application was successful or not).

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    subsequently withdrawn, quashed, or which the Court or Tribunal has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.
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Paragraph 39E of the Immigration Rules-Exceptions for Overstayers

Paragraph 39E of the Immigration Rules Part 1: leave to enter or stay in the UK reads as under:

39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:

(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

Please Note: Part 1 of the Immigration Rules pertaines to General provisions regarding entry clearance, leave to enter or remain in the United Kingdom (paragraphs 7 to 39E).

via Immigration Rules part 1: leave to enter or stay in the UK – Immigration Rules – Guidance – GOV.UK

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Procedure and Rights of Appeal- Paragraph 353 of the Rules

Paragraph 353 of the Immigration Rules Part 12: Procedure and Rights of Appeal read as under:

Fresh Claims

353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.

Exceptional Circumstances

353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s:

(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate. This paragraph does not apply to submissions made overseas. This paragraph does not apply where the person is liable to deportation.

via Immigration Rules part 12: Procedure and rights of appeal – Immigration Rules – Guidance – GOV.UK

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Procedure and Rights of Appeal- Paragraph 333C of the Rules

Paragraph 333C of the Immigration Rules Part 11: Asylum read as under:

Withdrawal of Applications

333C. If an application for asylum is withdrawn either explicitly or implicitly, consideration of it may be discontinued. An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by the Secretary of State. An application may be treated as impliedly withdrawn if an applicant leaves the United Kingdom without authorisation at any time prior to the conclusion of their asylum claim, or fails to complete an asylum questionnaire as requested by the Secretary of State, or fails to attend the personal interview as provided in paragraph 339NA of these Rules unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control. The Secretary of State will indicate on the applicant’s asylum file that the application for asylum has been withdrawn and consideration of it has been discontinued.

via Immigration Rules part 11: asylum – Immigration Rules – Guidance – GOV.UK

Please Note: Part 11 of the Immigration Rules pertaines to Asylum (paragraphs 326A to 352H).

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