New entry clearance guidance notes cover concession of 17 March 2008

The new unified UK Borders Agency (which yesterday - 3 April 2008 - brought together Border, immigration, customs and visa checks) has updated its guidance to entry clearance officers to include both the new general grounds for refusal and the Secretary of State ’s concession announced in the House of Lords on 17 March 2008.

Chapter 26 of the guidance (which until yesterday was known as the Diplomatic Services Procedures) covers refusals of applications for entry clearance.  What it says will be directly relevant to anyone who is in the UK in breach of the terms of their leave to enter or remain and hopes to take advantage of the concession, as well as to anyone who has already had an application for entry clearance turned down on the basis that that application had included false representations.  

Anyone who is affected or who thinks they may be affected is once more strongly advised to seek professional legal advice prior to taking any action whatever.  The importance of this cannot be overemphasised.

Just to recap – the concession was made in the light of a campaign headed by the Immigration Law Practitioners’ Association (ILPA), among others.  The campaigners pointed out that the new regime was to be implemented without any prior consultation with “stakeholders” involved in the practice of immigration law or universities or anyone else with an interest in the development of the law – and HC321, the government’s statement of changes in the immigration rules would breach many people’s human rights.  

Under the new rule 320 (7B) – which came into force on 1 April 2008 any future application which a “previous immigration offender” makes for entry clearance after their departure from the UK will be refused.  

The rule itself says who “previous immigration offenders” are.  They are people who previously breached the UK’s immigration laws by overstaying (except for people who overstayed by 28 days or less), breaching a condition attached to their leave, being an illegal entrant or using deception in an application for entry clearance, leave to remain or leave to enter.

Applications for entry clearance from overstayers and illegal entrants will be refused for a period of one year after their departure from the UK if they left voluntarily and at their own expense, and for a period of five years if they left voluntarily but at the UK’s expense.  Anyone who used deception in any previous application for entry clearance leave to remain or leave to enter will have his or her entry clearance applications thereafter refused for a period of 10 years, as will anyone who has been removed or deported from the UK.  

Under the concession announced on 17 March the re-entry bans contained in the new rule 320 (7B) will not be applied to anyone who is here illegally if they leave the UK before 1 October 2008.

The following are striking features of the guidance notes.  

•    For the concession to operate the applicant must have voluntarily departed from the UK after 17 March 2008 and before 1 October 2008.  To apply the concession in respect of an application he or she receives the entry clearance officer will have to be satisfied that the applicant did in fact depart the UK voluntarily.  Similarly the officer will have to be satisfied that the applicant was removed or deported before deciding that the concession does not apply.

•    The guidance points out that it is possible for someone to leave the UK voluntarily after receiving a notice which states that a decision has been taken to remove him or her.

(Given this emphasis on the need for entry clearance officers to be satisfied that the applicant’s earlier departure from the UK was voluntary it seems likely that people will be advised to ensure that they obtain and keep evidence of how they left the UK).  

•    Applications should not be refused under rule 320 (7B) if they raise human rights issues which would justify issuing the entry clearance.

   
•    Similarly applications should not be refused under rule 320 (7B) if they raise exceptional and compelling circumstances.

(It is therefore clear that simply because rule 320 (7B) does apply to the facts of someone’s case it doesn’t follow that the officer either can or must refuse his or her application.  To do so they will have to be satisfied that whatever human rights issues the application raises will not justify granting entry clearance or that there are no exceptional and compelling circumstances involved.  This is not surprising since entry clearance officer’s decision have to be compatible with the European Convention on Human Rights.  The reference to exceptional and compelling circumstances is there so that the existence of the mandatory refusal grounds in rule 320 (7B) can’t be seen as “fettering the discretion” of entry clearance officers.  It shows that even in these cases ECOs must consider whether there is a justification for leave to enter to be granted outside the immigration rules).

•    Applicants for an EEA family permit cannot be refused if rule 320 (7B) applies to them.

•    Deception, which is now defined at paragraph 6 of the immigration rules as follows:

    ““Deception” means making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts”.

    - involves the knowledge of the person making the representations or submitting the false     documents.  So the guidance makes it clear that somebody can evade the ten year re-entry     ban which would otherwise apply to them if they can demonstrate that they did not know that     the document or the representation was false.

•    Applications can only be refused under rule 320 (7B) if the entry clearance officer is satisfied to a high standard that the applicant has previously breached immigration laws.  Overstaying can, for example be proved by records.  

•    Where an application is to be refused on the basis of deception the fact of the deception must be proved to a higher balance of probabilities than is required for other refusals under the immigration rules.  The guidance gives examples of where this standard of proof will be met, which include where a notice of refusal of the applicant’s previous application alleged that false documents were submitted in support of the application.  If the decision to refuse was overturned when the applicant appealed then the determination should be examined to see whether in the course of overturning the decision the Asylum and Immigration Tribunal, Adjudicator or Immigration Appeal Tribunal also overturned the allegation regarding the Appellant’s use of deception.  If the determination can’t be found then the officer should give the applicant the benefit of his or her doubt and assume that the allegation regarding deception was also overturned along with the decision.  

As can be seen, the question of whether or not rule 320 (7B) can be applied by entry clearance officers will depend upon a careful analysis of the facts in any individual case as wel as of the legal principles involved.   As stated earlier therefore it is essential that experienced professional legal advice is sought by anyone who feels the new rules or the concession may apply to his or her circumstances.