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Automatic Visa Refusals: tougher rules for overstayers

The Impact of Paragraph 320 of the Immigration Rules

March 2009. In 2008, the UK Immigration system was given a major overhaul which saw the introduction of new immigration rules and the abolition of other immigration laws, such as the well-known “7-year concession”.

The UK Government has shown a clear strategy at tightening border control with the aim of increasing effective immigration control.

This targeted approach comes after years of criticism from opposition government parties, organisations and lobbies as well as members of the public that UK immigration control was ineffective and poorly monitored and ultimately, that the Government had lost control of the immigration system. One area of contention was that the Prime Minister could not correctly quantify the number of illegal immigrants/ overstayers who were in the UK.

Along with introducing the Tier system (a points-based system) through much of last year, the immigration rules were changed to incorporate paragraph 320, effective from 17th March 2008.

Previous to the introduction of paragraph 320, a person who had overstayed their visa in the UK, or had entered illegally or had a poor immigration history BUT then returned to this home country to apply for the correct visa to enter the UK for reasons such as they had married a British citizen or had obtained a work permit and needed entry clearance to regularise their stay, could apply for the visa and be granted entry to the UK if they satisfied the relevant immigration rules.

However, since the introduction of paragraph 320, the immigration rules have changed to the effect that Entry Clearance Officer’s in British Embassies can now refuse a person entry to the UK even if they to return to their home country and re-apply for a visa to enter the UK under the basis that they have previously breached UK Immigration laws by having:

• overstayed for more than 28 days (or for any period if, after overstaying, he went home at public expense);
• breached a condition attached to his leave,
• entered the UK illegally; or
• used deception in a (previous) entry clearance, leave to enter or remain application (whether successful or not).

Where the above conditions are met, applications must be refused for the following periods from the date the applicant left the UK:

• 1 year if they left the UK voluntarily, and not at public expense;
• 5 years if they left the UK voluntarily, at public expense  (e.g. received an Assisted Voluntary Return);
• 10 years if they were removed or deported from the UK.
But port removals are only subject to a 1 year ban if the person has fully complied with the terms and conditions placed upon them by the refusing port.

Paragraph 320 therefore seeks to deny entry and at the very least immediate entry into the UK where an applicant has an adverse immigration history.

Are there any exceptions?

Yes. Applications made by the following person are not liable to be refused under paragraph 320(7B)if they are applying in the following categories: 

• Spouse, civil partner, unmarried or same-sex partner
• Fiance(e), or proposed civil partner
• Parent, grandparent or other dependant relative
• Spouse, civil partner, or unmarried or same-sex partner of a refugee or person with humanitarian protection
• Those applying to exercise rights of access to a child
• They were under the age of 18 at the time of the most recent breach of the UK’s immigration laws.
• The applicant has been accepted by UKBA as a victim of trafficking
• The applicant was in the UK illegally on or after 17 March 2008 (date of announcement) and left the UK voluntarily before 1 October 2008 (please read 26.17.5 below).

Case Examples:

Where a person came to the UK and then overstayed their visa but in the meantime met a British citizen and married them and returned to their home country to apply for entry clearance to join their British spouse in the UK (which is the correct procedure) and they declare on their visa application the truth they have overstayed, then the Entry Clearance Officer should allow them a visa to join their spouse as they do not fall under paragraph 320, as spouses of British/citizens/permanent residents.

Where a person reached the terms of their work permit whilst in the UK and were removed form the UK anytime after 1st October 2008 at public expense, they will be unable to successfully apply for entry clearance for 5 years from the date that they left the UK.

Where a student breached the conditions of his visa whilst in the UK, for example was unable to continue studying or worked in excess of the hours permitted under a student visa, and the student returns at his expense by purchasing his own flight ticket and voluntarily leaving the UK, then this person will not be able to successfully apply for a visa to enter the UK for 1 year from the date they left the UK.

In practice however, it is possible for the Entry Clearance Officer to refuse an application under another part of paragraph 320 such as 320 (11), for example where it seems that the Applicant has “contrived in a significant way to frustrate the intentions of the immigration rules”.

What does “contrived in a significant way to frustrate the intentions of the immigration rules mean”?

The Entry Clearance Guidance defines this as:

“An applicant should normally be refused for ‘contriving in a significant way to undermine the intentions of the immigration rules.' This is where an applicant has previously been an illegal entrant, overstayed, breached a condition attached to his leave or used deception in a previous entry clearance, leave to enter or remain application, but only where there are aggravating circumstances. Aggravating factors include offences such as absconding, not complying with reporting restrictions, using an assumed identity or multiple identities to obtain asylum benefits, state benefits, tax credits goods or services, receiving NHS care to which not entitled, a sham marriage, harbouring an immigration offender and facilitating/people smuggling. This is not an exhaustive list and all cases must be considered on their merits taking into account family life in the UK and the level of responsibility for the breach in the case of children. ECOs will need to obtain ECM authorisation for all refusals under Paragraph 320(11)”.

Refusals where false documents, false information or false representations were used in a previous application

If an applicant has previously been refused entry clearance because a false document or false information were submitted or a false representation was made, the applicant may claim that they were unaware that the document or representation was false.  

Unless the applicant can prove this, they must be automatically refused under paragraph 320(7B) for 10 years from the date deception was used. Where the documents relate directly to the applicant (e.g employment references, qualifications or financial details), such a claim would be likely to fail unless the applicant has clear evidence that an error has been made (eg written confirmation from a financial institution that they had previously supplied us with incorrect information).  

However, Entry Clearance Officers will need to consider any human rights grounds (in particular right to family life under Article 8) which would justify issuing the entry clearance or if there are exceptional and compelling circumstances which are likely to justify a grant of leave outside the rules.

In summary, where an individual has breached UK Immigration laws, they should get immediate legal advice to find out how the law applies to them whether they can regularise their stay. Anybody with an adverse immigration history should preferably select an accredited immigration solicitor to represent them in making an application.

By Raheela Hussain

Senior Immigration Accredited Specialist

Greenfields Solicitors

The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors at

For questions regarding the subject covered in this guide, please visit migreat.com.
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

020 8884 1166 for a Consultation with a Solicitor.

http://www.greenfieldssolicitors.com/

 

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