|The effect of bad immigration history on leave to enter and remain applications|
Leave to Enter applications
Paragraph 320(7B) of the Immigration Rules gives grounds where entry clearance must be refused on the basis of a person’s immigration history. These are called mandatory grounds for refusal because, where they apply, an Entry Clearance Officer must refuse an application. The applicant will be effectively barred from entering the UK during the exclusion period, the length of which depends on the particular circumstances. Please note these mandatory grounds for refusal cannot be invoked against those applying as spouses, unmarried partners, civil partners, fiancées, parents, grandparents or other dependent relative (under immigration Rule 317). They also do not apply where the applicant was under the age of eighteen at the date of the last breach.
Paragraph 320(7B) is set out below:-
Overstayers, Illegal Entrants and those who have breached a condition attached to their leave
Previously overstaying by less than 28 days will not attract any mandatory refusal. However, although it should not affect any application, it may be held against an applicant in terms of credibility, depending on the Entry Clearance Officer.
Those who have previously overstayed by more than 28 days are automatically refused entry clearance for different periods, depending on whether or not they left voluntarily and at their own expense or at the expense of the Secretary of State. The same periods apply to those who entered the UK illegally and those who breached a condition attached to their leave. Those who left the UK voluntarily, not at the expense of the Secretary of State are barred only for one year. Those who left the UK voluntarily, at the expense of the Secretary of State are barred only for five years unless they left within six months of being notified of the removal decision, in which case they are barred for only two years. Those who were returned by the Secretary of State involuntarily or deported are barred for ten years.
Where there has been more than one breach only the breach with the longest exclusion period will be applied.
It should be noted that, in practice, the UKBA tends to serve notices of removal on even those who are leaving the UK voluntarily. The probable reason for this is so that the UKBA can record it as a removal for statistical purposes. Any voluntary returnee should therefore try to protect their position in advance by notifying the UKBA of their intention to return and to keep evidence of this.
Those who have used deception in an application for entry clearance or leave to remain are barred for ten years from the date of the application.
Discretionary grounds for refusal
Entry clearance can also be refused on discretionary grounds - where the Entry Clearance Officer or Immigration Officer ‘should’ refuse but does not have to - for varied reasons, e.g. failing to provide requested information, having committed a criminal offence in any country which, if committed in the UK, is punishable with imprisonment of twelve months.
A notable discretionary reason for refusal is where the applicant “has previously contrived in a significant way to frustrate the intentions of the [Immigration Rules]”. Whilst this includes previous breaches of immigration laws it also encompasses a wide range of behaviours and a non-exhaustive list is provided in UKBA guidance. For example, conduct such as having claimed benefits to which they were not entitled, absconding from immigration authorities or making frivolous immigration applications whilst in the UK can lead to a refusal under this heading.
Leave to Remain applications
On the basis of a person’s immigration history only discretionary grounds for refusal apply. However, please note mandatory refusals will apply: where the applicant makes an application for a purpose not covered by the Immigration Rules; where false representations have been made or false documents or information provided or material facts not disclosed in relation to the application (the same law applies in this respect as it does to entry clearance applications).
Discretionary refusal can apply on the following grounds (for a full list please see Immigration Rule 322):-
(2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave.
Cases concerning mandatory or discretionary grounds for refusal can be complex and it is strongly advised to seek professional advice and services when in respect of any such refusal or where such a refusal might be anticipated.