The Impact of
Paragraph 320 of the Immigration
Rules
March 2009. In 2008, the UK Immigration system was given a major overhaul which saw the introduction of new immigration rules and the abolition of other immigration laws, such as the well-known “7-year concession”.
The UK Government has shown a clear strategy at tightening border control with the aim of increasing effective immigration control.
This targeted approach comes after years of criticism from opposition government parties, organisations and lobbies as well as members of the public that UK immigrationcontrol was ineffective and poorly monitored and ultimately, that the Government had lost control of the immigration system. One area of contention was that the Prime Minister could not correctly quantify the number of illegal immigrants/ overstayers who were in the UK.
Along with introducing the Tier system (a points-based system) through much of last year, the immigration rules were changed to incorporate paragraph 320, effective from 17th March 2008.
Previous to the introduction of paragraph 320, a person who had overstayed their visa in the UK, or had entered illegally or had a poor immigration history BUT then returned to this home country to apply for the correct visa to enter the UK for reasons such as they had married a British citizen or had obtained a work permit and needed entry clearance to regularise their stay, could apply for the visa and be granted entry to the UK if they satisfied the relevant immigration rules.
However, since the introduction of paragraph 320, the immigration rules have changed to the effect that Entry Clearance Officer’s in British Embassies can now refuse a person entry to the UK even if they to return to their home country and re-apply for a visa to enter the UK under the basis that they have previously breached UK Immigration laws by having:
•
overstayed for more than 28 days (or for any period if, after overstaying, he went home at public expense);
•
breached a condition attached to his leave,
•
entered the UK illegally; or
•
used deception in a (previous) entry clearance, leave to enter or remain application (whether successful or not).
Where the above conditions are met, applications must be refused for the following periods from the date the applicant left the UK:
•
1 year if they left the UK voluntarily, and not at public expense;
•
5 years if they left the UK voluntarily, at public expense (e.g. received an Assisted Voluntary Return);
•
10 years if they were removed or deported from the UK.
But port removals are only subject to a 1 year ban if the person has fully complied with the terms and conditions placed upon them by the refusing port.
Paragraph 320 therefore seeks to deny entry and at the very least immediate entry into the UK where an applicant has an adverse immigration history.
Are there any exceptions?
Yes. Applications made by the following person are not liable to be refused under paragraph 320(7B)if they are applying in the following categories:
•
Spouse, civil partner, unmarried or same-sex partner
•
Fiance(e), or proposed civil partner
•
Parent, grandparent or other dependant relative
•
Spouse, civil partner, or unmarried or same-sex partner of a refugee or person with humanitarian protection
•
Those applying to exercise rights of access to a child
•
They were under the age of 18 at the time of the most recent breach of the UK’s immigration laws.
•
The applicant has been accepted by UKBA as a victim of trafficking
•
The applicant was in the UK illegally on or after 17 March 2008 (date of announcement) and left the UK voluntarily before 1 October 2008 (please read 26.17.5 below).
Case Examples:
Where a person came to the UK and then overstayed their visa but in the meantime met a British citizen and married them and returned to their home country to apply for entry clearance to join their British spouse in the UK (which is the correct procedure) and they declare on their visa application the truth they have overstayed, then the Entry Clearance Officer should allow them a visa to join their spouse as they do not fall under paragraph 320, as spouses of British/citizens/permanent residents.
Where a person reached the terms of their work permit whilst in the UK and were removed form the UK anytime after 1st October 2008 at public expense, they will be unable to successfully apply for entry clearance for 5 years from the date that they left the UK.
Where a student breached the conditions of his visa whilst in the UK, for example was unable to continue studying or worked in excess of the hours permitted under a student visa, and the student returns at his expense by purchasing his own flight ticket and voluntarily leaving the UK, then this person will not be able to successfully apply for a visa to enter the UK for 1 year from the date they left the UK.
In practice however, it is possible for the Entry Clearance Officer to refuse an application under another part of paragraph 320 such as 320 (11), for example where it seems that the Applicant has “contrived in a significant way to frustrate the intentions of the immigration rules”.
What does “contrived in a significant way to frustrate the intentions of the immigration rules mean”?
The Entry Clearance Guidance defines this as:
“An applicant should normally be refused for ‘contriving in a significant way to undermine the intentions of the immigration rules.' This 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 absconding, not complying with reporting restrictions, using an assumed identity or multiple identities to obtain asylum benefits, state benefits, tax credits goods or services, receiving NHS care to which not entitled, 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 Paragraph 320(11)”.
Refusals where false documents, false information or false representations were used in a previous application
If an applicant has previously been refused entry clearance because a false document or false information were submitted or a false representation was made, the applicant may claim that they were unaware that the document or representation was false.
Unless the applicant can prove this, they must be automatically refused under paragraph 320(7B) for 10 years from the date deception was used. Where the documents relate directly to the applicant (e.g employment references, qualifications or financial details), such a claim would be likely to fail unless the applicant has clear evidence that an error has been made (eg written confirmation from a financial institution that they had previously supplied us with incorrect information).
However, Entry Clearance Officers will need to consider any human rights grounds (in particular right to family life under Article 8) which would justify issuing the entry clearance or if there are exceptional and compelling circumstances which are likely to justify a grant of leave outside the rules.
In summary, where an individual has breached UK Immigration laws, they should get immediate legal advice to find out how the law applies to them whether they can regularise their stay. Anybody with an adverse immigration history should preferably select an accredited immigration solicitor to represent them in making an application.
By Raheela Hussain
Senior Immigration Accredited Specialist
Greenfields Solicitors
The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors at 020 8884 1166for a Consultation with a Solicitor.
salam mrs hussains
i went to uk on visit visa in 2000 at the age of 12 then i overstayed 2 year then i left voluntarily at age 14
can i apply for student visa without
the fear of refusal?
Hi - i'm from the caribbean and i have been married to british citizen for 3 years (married may 2007) now. I went to the uk on a 2 year spousal visa and overstayed 11 months. I did not work for the 10 months i overstayed, i was at home taking care of our son but i left volontarily in april 2010 and my husband and son came with me. Both my son and husband were born in the uk and are uk citizens and we want to go back together to live and work. What are my chances of being approved and going back to the uk. Thank you
The history that Iam a foreigner who entered UK in Feb 2008 as a student dependents visa issued from my home country, which is valid till Jan 2011, with more one year extentionas my wife is a studnt in the University.
Later I got HSMP visa from another country that I was working in and I enterd UK by this HSMP VISA IN OCT 2008- that time I was not awaere that the student dependent visa became invalid (no body informed me)
I started my postgraduate stud in the UK university as a self sponsored.
In last April HSMP visa expired, and I remainin UK with my family bacause I thought I will be again on the previous student dependent visa
today I got a certificate of sponsorship for Tier 2 visa, i contacted the home office to ask about the procedure for Tier 2 application
I get shocked when they told me that after expiry of my HSMP I considere overstayer and I should go utside UK now
The history that Iam a foreigner who entered UK in Feb 2008 as a student dependents visa issued from my home country, which is valid till Jan 2011, with more one year extentionas my wife is a studnt in the University.
Later I got HSMP visa from another country that I was working in and I enterd UK by this HSMP VISA IN OCT 2008- that time I was not awaere that the student dependent visa became invalid (no body informed me)
I started my postgraduate stud in the UK university as a self sponsored.
In last April HSMP visa expired, and I remainin UK with my family bacause I thought I will be again on the previous student dependent visa
today I got a certificate of sponsorship for Tier 2 visa, i contacted the home office to ask about the procedure for Tier 2 application
I get shocked when they told me that after expiry of my HSMP I considere overstayer and I should go utside UK now
hi dear,i overstayed my student visa for 2yrs thus from 2005 to 2007 but left the uk voluntary,i mean i purchased my own ticket.In early 2010 i was refused an entry into the uk on grounds of using deception to enter the uk on arrival at a uk airport.I was giving a refusal letter which states that any future application will be refused for a period of one year.However,i have a fear that i will be rather ban for 10yrs since i attempted using a different identity to enter the uk(forged document).Can u give me advice on how to make new application next year.
i came to uk in 2000 as student and after comletion of study i got work perment in 2007 untill 2012.i got marry in 2008 and switch my visa to spouse untill 2010 but during this period problems came on the way of marriage and wife report home office that marriage has broke down and caurtail my leave in 2009.i was not aware of this as her family was telling me that every thing will be ok.i did not receive any letter from home office about curtailment of leave.i aplied visa on my ten year lawfull residence in uk and vsa refused on basis that my leave was curtail.can you please advice me what option i have now.i am qualified accountant and woking accountancy firm.
Hi there,
I am a work permit holder. Iwas been issued a work permit in March,2009. But my employer withdraw their offer due to my CRB was delayed.Meanwhile my ex employer asked me to keep working for him. He assumed that my new work permit and visa was no longer valid as i did not work with new employer. He promissed me that he ll issue me a certificate of sponsorship when extension for old visa ll be due. He did issue me a certificate. I asked him to call HOME OFFICE as i did not know what to do with it. When he called home office and told them whole situation. Home office advised him to not allow me to work and they advised me to find another employer and get a certificate of sponsorship and apply a visa. Now i have got a job offer where i can claim my full points. i did have some job offers before but due to not able to get enough points i refused them. Now i am goint to apply my visa and i have mentioned on my application that i have worked illeagally due to unawareness. I am going to submit all proos like that certificate of sponship which was been issued by my ex employer. I want to know that would i be granted a visa? or should i mentioned this or not? I dont want to lie. And will it be an over stay? I have got my husband and 2 young kids with me.They are applying as dependendent,
Dear Raheela,
I came to the UK in 2005 illegally. I worked illegally but stopped working
for more than one year ago. I met my partner in 2008, we moved in together same
year in November, we have a 10 months old son born in 2009, we currently live
together as a family in my partner's flat, paid for by housing benefits. She's
currently looking for work but still can't get one.
I made a DLR application
outside the rule, based on my access right to my son and as well as my article 8
grounds (family life) in march 2010 which has just been refused without a right
of appeal. The HO said I can move back to my home country with my family without
any hardship, they also based my refusal on not having any leave to
remain.
My partner and my son are both British passport holders but I cant
apply for a spouse visa as my partner is still under 21. We have a pending COA
application submitted in May as we are planning to get married in the UK.
I
will appreciate any advise. What are the way forward pls.
Greenfields Solicitors
- when a discretionary leave application is refused
|Registered
|2010-07-05 08:33:15
Dear Rash
You unfortunately do not have a right of appeal as at the time of submission of your Discretionary leave to remain application you did not have valid leave to remain in the UK and therefore was residing in the UK unlawfully. As such the Immigration rules will not afford you with a right of appeal against their refusal decision because of your illegal status at the time you submitted the application.
However, although you are not given a right of appeal, to contest the refusal in front of an independent immigration judge you may wish to ask that the Home Office themselves re-review their decision and hopefully overturn their decision themselves based on an error of law or further/fresh evidence which they did not consider in you first application. This procedure is known as submitting 'further submissions/representations'. The Home Office again may chose to exercise their discretion upon review where some point or legal issue was not properly considered on your first application. However, they may maintain their refusal if they are still of the opinion that the decision on the first occasion was correct in law.
For further legal advice or representation in this matter it is recommended that you approach a firm of accredited immigration solicitors who can argue on the points of law or your behalf.
