General grounds for refusal: understanding re-entry bans By Nath Gbikpi

The Home Office can impose entry bans on people who have previously breached immigration law or used deception in their applications for leave. Bans can last one year, two years, five years or ten years. Generally speaking, and except for some minor exceptions, the person will not be allowed to re-enter the UK during the length of the ban. It sounds straightforward — but the detailed rules on re-entry bans are very complex. This post tries to disentangle them.

Re-entry bans: what periods apply when?

The rules relating to entry bans for the majority of applicants are at paragraphs A320 and 320(7B) of the Immigration Rules. For visit visa applications, see paragraphs V3.7, V3.9 and V3.10.

Paragraph 320(7B) says that entry clearance or leave to enter the United Kingdom is to be refused:

where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach) by:

(a) Overstaying;

(b) breaching a condition attached to his leave;

(c) being an Illegal Entrant;

(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);

unless the applicant:

(i) Overstayed for-

(a) 90 days or less, where the overstaying began before 6 April 2017: or

(b) 30 days or less, where the overstaying began on or after 6 April 2017

and in either case, left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;

(ii) used Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application more than 10 years ago;

(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;

(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of liability for removal, or no more than 6 months after the date on which the person no longer had a pending appeal or administrative review; whichever is the later;

(v) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago;

(vi) was removed or deported from the UK more than 10 years ago or;

(vii) left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 more than 5 years ago.

Where more than one breach of the UK’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.

Paragraph 320(7BB) gives more details on what counts as a period of overstaying:

for the purposes of calculating the period of overstaying in paragraph 320(7B)(i), the following will be disregarded:

(a) overstaying of up to 28 days, where, prior to 24 November 2016, an application for leave to remain was made during that time, together with any period of overstaying pending the determination of that application and any related appeal or administrative review;

(b) overstaying in relation to which paragraph 39E of the Immigration Rules (concerning out of time applications made on or after 24 November 2016) applied, together with any period of overstaying pending the determination of such application or any related appeal or administrative review;

(c) overstaying arising from a decision of the Secretary of State which is subsequently withdrawn, quashed, or which the Court or Tribunal has required the Secretary of State to reconsider in whole or in part, unless the challenge to the decision was brought more than three months from the date of the decision.

The phrasing is extraordinarily convoluted but a visual guide might help understand the way the rule works:

Some worked examples might also help.

Example 1

John made an application for a visitor visa. At the question “have you ever been refused a visa?”, he says “no”. In fact, he had been refused a visitor visa two years earlier. The Entry Clearance Officer will say that he has used deception in his application and refuse the application. In addition, John will be subject to a ten year entry ban starting from the date of the refusal.

Example 2

Maria had a student visa valid until 2 March 2014. She did not make an application before the expiry of her visa and, on 3 March 2014, she became an overstayer.

Scenario 1

Maria buys herself a ticket to return home on 5 March 2014. She will not be subject to any entry ban because she left within 90 days of the overstay.

Scenario 2

Maria stays in the UK until 3 August 2014 (more than 90 days) without making any new application. On 3 August 2014, she is served with a removal notice. On 5 August 2014, she returns home through an Assisted Voluntary Return programme paid by the Secretary of State. She will be subject to a two-year entry ban because she left at the expense of the Secretary of State but left within six months of her notice of removal.

Scenario 3

Maria had student leave valid until 3 March 2014 but on 1 March 2014, before the expiry of her leave, she made an application to extend her leave. This was refused and on 3 August 2014, she became “appeal right exhausted”.

On 3 August 2015, more than six months after she became appeal right exhausted, Maria returned home through an Assisted Voluntary Return programme paid by the Secretary of State. She will be subject to a five-year entry ban because she left at the expense of the Secretary of State, more than six months after she became appeal rights exhausted.

When does the ban period start?

The ban will start on the date the person leaves UK or, in the case of a ten-year ban following the use of deception in an application, from the date of the refusal of that application.

When do re-entry bans not apply?

Re-entry bans do not apply to applications made under:

• Appendix FM (Immigration Rule A320)

• The EEA Regulations, namely applications for a European Family Permit

• Appendix EU

Under rules 320(7B) and V3.9, those who breached immigration law while they were minors will also not be subject to re-entry bans.

Finally, there are some exemptions for certain groups. In particular, re-entry bans do not apply to those who:

• Were not aware that the documents they submitted or the representations made with previous applications were false.

• Those who have been issued with a visa despite a re-entry ban being in place.

• Those who were in the UK without permission after 17 March 2008 but who voluntarily left before 1 October 2008

• Victims of human trafficking.

• Where a student was refused leave after 1 September 2007 solely on the basis that they made an out-of-time application.

Bear in mind, though, that anyone discussed so far in this section (with the exception of those applying under the EEA Regulations and Appendix EU) might still be caught by paragraph 320(11). This gives the Secretary of State the power to refuse an applicant who has “previously contrived in a significant way to frustrate the intentions of the Rules” when “there are other aggravating circumstances”, such as absconding, making frivolous applications, not complying with a re-documentation process etc. This is a discretionary ground for refusal, i.e. the Secretary of State may decide whether or not to refuse an application on this ground.

Example 3

Robert overstayed for two years in the UK before returning home on 3 August 2014. He paid for his own ticket. Robert would normally be subject to a one-year entry ban. However, he makes an application under Appendix FM to join his spouse in the UK on 3 September 2014. The Entry Clearance Officer may grant his application if he meets all the other requirements of Appendix FM.

If Robert had also, for example, absconded and used the NHS without permission while he was in the UK as an overstayer, his application could be refused under paragraph 320 (11) of the Immigration Rules.

Example 4

Tania overstayed for two years in the UK before returning home on 3 September 2008. She will not be subject to a ban because she was in the UK without permission after 17 March 2008 but left the UK before 1 October 2008.

Can entry clearance be granted despite a re-entry ban?

Yes. Firstly, and as explained above, those who apply under Appendix FM, Appendix EU or the EEA Regulations will not be prejudiced by entry bans.

In addition, Home Office guidance instructs caseworkers as follows:

You must consider if there are any human rights reasons, such as:

• the right to family life under article 8

• any exceptional, compelling circumstances which would justify you giving entry clearance

You must refer such a case to the referred casework unit (RCU) by using the Home Office (HO) referrals process. RCU will decide whether to give entry clearance outside of the rules

It is unlikely that an application invoking this policy will be successful. The guidance on leave outside the Rules (LOTR) confirms that:

A grant of LOTR should be rare. Discretion should be used sparingly where there are factors that warrant a grant of leave despite the requirements of the Immigration Rules or specific policies having not been met. Factors raised in their application must mean it would not be proportionate to expect the person to remain outside of the UK or to leave the UK.

In practice, if there were exceptional circumstances or the person had a strong Article 8 claim, it is more likely they would be able to apply under Appendix FM, or that they would have applied for leave to remain or revocation of a deportation order when still in the UK.

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