Entry clearance guidance changed once more - is discretion coming back?

In February of this year the government announced a statement of changes (HC321) in the immigration rules to implement “Tier one” of the new points based system. In the same statement of changes severe penalties were announced for those who had breached the UK’s immigration laws in the past, and by which they would be banned from re-entering the UK for a period of up to ten years from when they broke the immigration laws. As we have reported on this site at length – these re-entry bans sparked a chorus of condemnation by interested parties and members of parliament. The campaign has led the government to make two major concessions, substantially limiting the scope of the rule changes.

Meshing together the terms of the two concessions announced by the immigration minister Mr Liam Byrne MP on 13 May 2008, and earlier by the government’s representative in the House of Lords, Lord Bassam of Brighton on 17 March 2008, and placing them within the entry clearance guidance for staff of the United Kingdom’s diplomatic posts is proving to be problematic.

On 4 April 2008 this site reported that the UK Borders Agency had amended its guidance to entry clearance officers to take account of the first of the two concessions. Then on 15 May the second and more far reaching concession was reported, along with the necessary amendment to the entry clearance guidance. Most recently on 30 May the guidance was further amended.

At the outset it must be said that this is a strikingly strange way of regulating immigration. The concessions are a response to the campaign against the statement of changes, which affected applications for extensions of leave to remain from 29 February of this year, and entry clearance applications from 1 April. The concessions – which are very far from being amendments to the rules – modify the effect of the rules and make them inapplicable to certain categories of people who may apply for entry clearance.

The first concession is to the effect that by leaving the country before 1 October 2008 people can avoid being subject to a re-entry ban. The second, broadly speaking takes both family members of people settled in the UK and children out of the scope of the bans. But there’s nothing in the rules themselves from which anyone could possibly realise either that by taking action (in what is of course an ever decreasing window of opportunity) they could evade a re-entry ban or that the rules do not apply to them anyway.

Instead to find out whether they are affected by the rules and if so in what way people must examine the entry clearance guidance. As stated above – this is currently being amended at the rate of three times in less than two months. The government is aware of the lack of reliability of the guidance and spells this out in the following disclaimer on its front page:

“Please note that these are live documents and are constantly being reviewed and amended. The documents are for information only and no guarantee can be given as to their accuracy. In particular, it should be noted that the documents are guidance instructions and cannot be relied upon to determine the outcome of an individual application, which will be considered on its own facts.”

This however begs the following question: if the government has not found it appropriate to replace the rules it brought in with HC321 – but has instead chosen to enshrine its concessions into the guidance, which it simultaneously warns those who read it may be unreliable - where are we to look to discover what the law actually is?

For these reasons Gherson reiterates and emphasises that it is imperative for anyone who is concerned about any aspect of his or her immigration status to seek professional legal advice immediately.

There are obvious difficulties in expecting people with no legal experience, let alone any experience in immigration law, to be able to work their way around the entry clearance guidance themselves. This is a very complicated area – people can make massive decisions based (like giving up their homes to seek a new life in the UK ) based upon their understanding of guidance issued by the UK Borders Agency, which of course is what happened with the Highly Skilled Migrant Programme. But the inherent dangers do not end there – it is also the case that important information contained in the guidance is simply incorrect.

Glaring examples of this are the omission (at paragraph 26.4 of the guidance – entitled “General grounds for refusal”) of the new mandatory grounds for refusal contained in rules 320 (7A) and 320 (7B) – both of which were brought in by HC321 and are effective from 29 February 2008 and 1 April 2008 respectively; and the inclusion (paragraph 26.4.1, entitled “discretionary grounds”) of the following two circumstances relating to the behaviour of applicants where – it is stated - entry clearance officers should normally refuse applications:

· failure to observe the time limit or conditions attached to any grant of leave to enter or remain in the United Kingdom;

· the obtaining of a previous leave to enter or remain by deception;

These grounds are word for word reproductions of rules 320 (11) and 320 (12). The trouble is that both of these grounds were deleted by paragraph 48 of HC321 with effect from 1 April 2008.

These old discretionary rules for refusing leave to enter are of course replaced by the new rules 320 (7A) and 320 (7B). The potentially drastic effect of rule 320 (7B) upon people’s human rights is what the concessions are trying to address. But there is an exception to the concessions. When Lord Bassam announced the concession whereby the rule changes wouldn’t apply to anyone who left the UK before 1 October 2008 could not be relied on by people he also said:

“I emphasise that that does not mean that those people will automatically be allowed to come back. They will need to meet all the other requirements of the Immigration Rules. The BIA will also, as now, have the discretion to refuse them if they contrive in a significant way to frustrate the Immigration Rules; for example, by contracting a bogus marriage, which we know happens”.

Liam Byrne repeated this exception when he announced the second concession on 13 May.

This exception – “contriving in a significant way to frustrate the immigration rules” - was initially inserted into the guidance as an instruction to Entry Clearance Officers that when considering applications made by people who had left the UK after Lord Bassam’s announcement and before 1 October 2008 they should nonetheless refuse those applications if they would have refused them under the terms of the old rule 320 (11) - i.e. if the applicant’s circumstances included a:

“failure to observe the time limit or conditions attached to any grant of leave to enter or remain in the United Kingdom”

On this basis it was of course potentially open to an Entry Clearance Officer (an “ECO”) to refuse an applicant under rule 320 (7B) simply because they had previously overstayed their leave to remain.

The guidance has now been changed so that the concession will not be disapplied simply due to overstaying. Now there have to have been “aggravating factors” in order for someone who falls within either of the two concessions to have their applications refused under 320 (7B) and to be made subject to a re-entry ban in any event.

The new paragraph 26.17.5 reads:

“

'Contrived in a significant way to undermine the intentions of the immigration rules' test

'Contrived in a significant way to undermine the intentions of the immigration rules' 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 not complying with reporting restrictions, using multiple identities, 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 Paragraphs 320(7A) and 320(7B) of the immigration rules.”

The complex nature of the law following the rule changes, the concessions and their corresponding inclusion in the ever changing entry clearance guidance has left many commentators pushing again for the rules themselves to be changed. Simplification of immigration law is, apparently, a priority for the government. A key feature of this policy is getting rid of the exercise of discretion by ECOs. This is realised in the statements of intent regarding the introduction of the points based system, as well as being repeated in many of Liam Byrne MP’s public announcements. It is envisaged that applicants will be required to produce specified documents and that only these documents will enable them to show that they score the necessary number of points to qualify for entry under whatever category of whatever tier of the system is applicable. The task of an ECO is therefore largely a matter of adding up the points. As objective as mathematics.

The minister stressed his commitment to doing away with discretion again when he announced the concession on 13 May:

“As part of the changes that we are making through the introduction of the points system, we want to introduce a much clearer series of rules. That necessarily involves putting some boundaries on discretion, which can be exercised very subjectively. When people can take subjective decisions, as they can today, there is room for inconsistent decisions. That often means having to put in place an appeals process to try to regulate the system, which can introduce further complexity and cost, but sometimes it is not the migrants who benefit from such change. We have to try to strike a balance between clear rules that are clearly applied and discretion, accepting that discretion brings a degree of subjectivity into the system. That is the balance that we have tried to strike in framing the rules.

When we introduce the points system, we will be seeking to replace the discretion that an immigration officer has in judging somebody’s intention and their intention to obey the rules and leave. We have always considered previous breaches of immigration laws when considering whether to let somebody into the UK. However, in the past those powers have been discretionary powers that have allowed us to refuse people who have not complied with the rules when they were last here. I am not sure that that blanket discretion is right. I would prefer a system with clearer rules, so that migrants are aware of the penalties that apply if they overstay or breach the rules that are still in the Immigration Act 1971. That is why we have sought to introduce a system of blanket bans for those who breach the rules.”

“Blanket” discretion? Some people would say that this is a curious mixture of concepts.

In any event the abolition of discretion is evidently easier said than done. Indeed it appears that despite Mr Byrne’s intentions the need for careful and informed consideration by trained and experienced entry clearance officers - especially when the question to be resolved is whether or not to refuse an application on grounds of deception - is becoming more obvious to the UKBA.

The entry clearance guidance illustrates this. It provides the following example of a false representation:

A visa applicant states that he is a project manager for a company earning a significant salary. It is discovered that he is in fact the cleaner for the company on a low salary.

On the face of it this seems like a simple enough example of a false representation. But what if the applicant is in fact the manager of a cleaning company? He or she could have risen to this position having started out as a cleaner. It is only in an imaginary and oversimplified world that cleaners and managers are never the same people.

The gravity of decision-making on visa applications – when it now has the potential effect of banning the applicant from the UK for up to ten years - plainly requires that it is carried out by intelligent and experienced people who are not prevented from taking care in reaching their decisions.

Of course it is cheaper to abolish rights of appeal against entry clearance decisions – but whether by having to put discretion back into the process by changing the legislation once again or by paying costs awarded in favour of those back who have suffered an injustice and who seek redress via judicial review – it seems likely that these measures will end up costing more in the end.