No return rule - those in UK now not affected if they go home before October

The government’s most recent statement of changes in the immigration rules – HC 321 – implemented the Tier one (general) sub category of the new Points Based System. As was reported here on 14 February 2008 – the statement includes new “general grounds for refusal” which – at rule 320 (7B) - have the effect of requiring entry clearance officers to refuse any application from someone who has overstayed any previous leave to remain or who has previously entered the UK illegally, or who has used deception in any previous application for entry clearance. All applications are to be refused for a period of one year, but if the applicant returned to his or her home country voluntarily but at the UK’s expense all future applications will be refused for a period of five years after the person’s departure from the UK. If he or she was removed or deported - all applications will be refused for a period of ten years after the removal or deportation. People who used deception will always have to wait ten years before any future application will be not automatically be refused. The statement of changes indicated that these penalties will be applied from April 1 2008 – giving anyone affected by them effectively no time at all to return home and to make an application for entry clearance under the rules as they are at the moment.

The statement of changes caused an outcry from solicitors and other legal representatives – the people the government calls “stakeholders”. None of them had been consulted by the government before the changes were made. These concerns were expressed in House of Lords by, among other people, Lord Avebury. In a debate last Monday he invited the House to vote on a motion to disapprove the statement of changes. He stated that:

there had been no consultation on the statement and its effects
the penalties affected people for what they had already done, which was “particularly abhorrent”
the rules affected people who had even made a purely accidental mistake. They would have to return home – and would be banned from coming back for at least a year
children, abused women, domestic workers and other vulnerable people who did not have enough money to pay for their return home themselves would suffer the five year ban.
generally the statement was:

“ill considered, arbitrary, inflexible, unnecessary, out of line with the rest of Europe and contrary to recent government policy”

Baroness Warwick, Baroness Hanham, and Lord Roberts also strongly criticised the statement of changes. Baroness Warwick pointed out that errors in the Border and Immigration Agency’s payment systems had caused many students to overstay their leave despite their efforts to make applications to extend it before the leave ran out. She was also concerned about what the statement of changes meant by the term “false documents”.

Baroness Hanham stated that the statement of changes’ focus on documents was especially worrying for applications made by children – who could not be accountable for filling in forms properly and had to rely on adults.

Lord Roberts stated that as it appeared the statement of changes would lead overstayers to stay in the UK and pursue appeals against their removal – since they would have nothing to lose by doing so given that if they went home any application they made to return would be refused automatically.

In reply to these points Lord Bassam for the government announced the following concession. It is that rule 320 (7B) will not be applied to anyone now in the UK if they leave the country voluntarily before 1 October 2008. By doing so the government has given:

“people who are here illegally a chance to leave before the new rules are applied to them”

So anyone who has overstayed their leave now has a choice – they can return back to their own country and apply for entry clearance – perhaps to continue their studies or whatever leave to remain they have overstayed, or to rejoin their family members who may live in the UK. If they do so before 1 October 2008 their applications will be considered under the existing rules, and rule 320 (7B) will not be applied to those applications. But they will also have to consider whether they would prefer to remain here and exercise a right of appeal against any decision to remove them. Such an appeal would involve consideration of their human rights – most importantly those protected by Article 8 of the European Convention on Human Rights.

Making the right decision needs highly competent professional advice. It is strongly advised that anyone likely to be affected by these changes seeks legal advice as a matter of urgency.

Solicitors at Gherson have a wealth of experience of advising in all immigration issues – especially regarding applications for extensions of leave to remain and applications for entry clearance. Moreover we have been carefully monitoring each stage of the government’s implementation of its points based system and are ideally placed to provide the necessary assistance to anyone affected by the new system or who wishes to apply to come to the UK or to remain here under its provisions.