Re-entry bans - government announces further major concession

The history of the Border and Immigration Agency’s, (recently renamed the “UK Borders Agency” or UKBA) implementation of its points based system via the immigration rules is bizarre to say the least. HC 321 was laid before Parliament on 6 February of this year. In this "statement of changes in the immigration rules" the government - without any prior warning or consultation - introduced rules which were immediately characterised as “re-entry bans”.

Under the redrafted general grounds for refusal Entry Clearance Officers are required automatically to refuse applications made by people who have previously breached UK immigration laws, whether by overstaying their leave to remain in the UK, entering the UK illegally on a previous occasion, having used deception in any immigration application less than 10 years earlier, or having failed to keep to the conditions of his or her permission to stay in the UK when here previously.

Any applications for entry clearance made people who have breached the immigration laws in any of these ways will also be automatically refused until 10 years have passed if they had been removed from the UK at public expense. The same ban applies – but for 5 years – to anyone who left voluntarily but at public expense. Anyone who leaves voluntarily but at their own expense will suffer a one year ban on their future applications.

The change in the rules was the subject of a highly organised and determined campaign led by the Immigration Law Practitioners Association (“ILPA”). It was pointed out that the rules would have the effect of separating families and were highly unlikely to be compatible with the government’s commitment to the European Convention on Human Rights. In the light of this campaign it was perhaps not that surprising that at a debate in the House of Lords on 17 March 2008 Lord Bassam of Brighton announced that the new general grounds for refusal would not be applied to applications made by anyone in the UK on 17 March who left the country before 1 October 2008. People who did so would thereby be given a chance to avoid the re-entry bans.

The Entry Clearance Guidance – General Instructions (previously called the “Diplomatic Services Procedures”) which inform Entry Clearance Officers of how applications for entry clearance are to be decided were duly altered to reflect the terms of the government’s concession.

Despite this success ILPA and others kept up the pressure on the government. Immigration rules are subject to a “negative resolution procedure” (it’s described in section 3 (2) of the Immigration Act 1971). Late on Tuesday the House of Commons got round to debating a motion that the statement of changes HC321 should be disapproved. The Hansard record of the debate shows the anxiety felt by MPs about the effect of the re-entry bans on children and on families in particular, as well as their astonishment at the failure of the government to consult at all with interested people and organisations (like ILPA) before introducing the rules.

During the debate Liam Byrne MP, the Minister for Borders and Immigration, announced the following further concession to the rules:

“First, we will not automatically refuse applications from people applying to join their family permanently in the UK—that is to say, those applying for visas as a spouse, civil partner or unmarried or same-sex partner under paragraphs 281 or 295A of the immigration rules; a fiancée or proposed civil partner, as set out in paragraph 290 of the rules; a parent, grandparent or other dependent relative, as set out in paragraph 317; a person exercising rights of access to a child, as set out in paragraph 246; or a spouse, civil partner or unmarried or same-sex partner of a refugee or person with humanitarian protection, as set out in paragraphs 352A, 352AA, 352FA and 352FD. Following some of the comments made by hon. Members this evening, I will of course check to see whether we have cast the scope of those exceptions correctly, but my initial analysis is that that is where the discretion should apply.

Secondly, we will not automatically refuse anyone who is under the age of 18 at the time of the breach of the immigration rules.”

This latest concession effectively takes children and the people applying under the categories referred to by the minister out of the scope of the re-entry bans. The Entry Clearance Guidance – General Instructions have today (15 May 2008) been amended to give effect to the new concession. However it appears that there may be some further corrections to be made to the Guidance as it tries to accommodate the new concession and the one made by Lord Bassam in March into a guide which is meant to be easy to understand.

As was stated before on this site the need for anyone who may or who thinks they may be affected by these rules and by the concessions referred to here to seek professional competent legal advice cannot be over stressed. It is essential.

This concession is of course to be welcomed by anyone who shares the concerns of the MPs who expressed them in Tuesday’s debate. It must be said however that it hardly looks as though there will be no further glitches (with potentially catastrophic consequences for the people making applications for entry clearance) as the government rolls out its points based system over the course of this year and the next.