Changes To General Grounds For Refusal (uk)

[vinny]

Statements of Changes in Immigration Rules > Statement of Changes in Immigration Rules HC 321 - February 2008

General Grounds for Refusal

7.21. Along with these changes, we are amending the general grounds for refusal in two ways.

7.22. The first amendment, which will come into force on 29 February 2008, provides that any application in which deception is used should automatically be refused. The immigration rules for Highly Skilled Migrants already stated that any application in which forged documents were submitted should automatically be refused (unless the applicant could prove that he or she did not know that they were forged). Because of the importance of ensuring that immigration applicants tell the truth, we are extending this to all applications, and to all forms of deception (not just the submission of forged documents).

7.23. From 1 April 2008, we will be amending the immigration rules that govern the way in which an entry clearance application should be treated where the applicant has previously breached the UK’s immigration laws by:

Overstaying while in the UK;

Entering the UK illegally;

Using deception (e.g. submitting false documents) in an immigration application; or

Breaching his or her conditions of stay while in the UK (e.g. working illegally).

7.24. The previous immigration rules on this subject did not cover all the above breaches. They also gave a great deal of discretion to caseworkers, with the potential for inconsistent decision-making. The new immigration rules replace this by setting out a clear period during which a previous immigration offender will have any future applications to come here refused.

7.25. Applicants who have been refused entry clearance after having used deception in their applications will have any future applications they make refused for ten years. Other immigration offenders (other than those who overstayed for 28 or fewer days and left at their own expense) will be refused for the following periods:

One year if, following their breach, they left the UK voluntarily at their own expense;

Five years if, following their breach, they left the UK voluntarily at public expense; and

Ten years if they were removed or deported from the UK following their breach.

7.26. Where migrants have left the UK at public expense, we will also require them to repay the cost of their departure, once we have introduced primary legislation that allows us to do so.

[the scouser]

The writing is on the wall for those who tell porkies. Indeed, it is noteworthy that an agent who incorrectly completes an application form, or worse, advises the individual to misrepresent themselves, may consign the visa applicant to having to wait ten years before reapplying for another UK visa. That's a long wait if the person in question is your husband/wife.

The moral of the tale is to beware unscrupulous advisers, and to only use those who are registered with either the Law Society or the OISC.

Scouse.

[the scouser]

Well, both the office phone and the mobile have been ringing constantly this morning. All to do with the introduction of the new rules from 29 Feb/1 April.

It appears that the embassy in Bangkok has independently decided to put these in to immediate effect. One enquiry today relates to a woman who has been instructed to withdraw her visa application as she has made a series of mistakes on the application form. God only knows what definition of deception they are using, but it's not the legal one.

Scouse.

[dsys]

hmmm I am no lawyer so am probably reading this wrongly.

Applicants who have been refused entry clearance after having used deception in their applications will have any future applications they make refused for ten years. Other immigration offenders (other than those who overstayed for 28 or fewer days and left at their own expense) will be refused for the following periods:

One year if, following their breach, they left the UK voluntarily at their own expense;

Five years if, following their breach, they left the UK voluntarily at public expense; and

Ten years if they were removed or deported from the UK following their breach.

Does that mean the following:

Case 1:I overstay. Leave on my own expense. wait say two years. Make an application, its refused I cannot reapply for one year.

Case 2: I overstay. Leave on my own expense. Immediately reapply, refused, wait one year. apply again.

or does the "following their breach" mean that it is the date of departure.

and

how will they prove that you lied? Or can they just say hey we think you're lying here.

what about the right to appeals - they were discussing changes in this area, is there anything we should look out for there

Edited February 8, 2008 by dsys

[Eff1n2ret]

hmmm I am no lawyer so am probably reading this wrongly.

Applicants who have been refused entry clearance after having used deception in their applications will have any future applications they make refused for ten years. Other immigration offenders (other than those who overstayed for 28 or fewer days and left at their own expense) will be refused for the following periods:

One year if, following their breach, they left the UK voluntarily at their own expense;

Five years if, following their breach, they left the UK voluntarily at public expense; and

Ten years if they were removed or deported from the UK following their breach.

Does that mean the following:

Case 1:I overstay. Leave on my own expense. wait say two years. Make an application, its refused I cannot reapply for one year.

Case 2: I overstay. Leave on my own expense. Immediately reapply, refused, wait one year. apply again.

or does the "following their breach" mean that it is the date of departure.

and

how will they prove that you lied? Or can they just say hey we think you're lying here.

what about the right to appeals - they were discussing changes in this area, is there anything we should look out for there

Re Cases 1&2, the proposed rules mean that you are disbarred from making a successful application for the relevant period - 1, 5, or 10 years. Having served that penalty, If you then make an application which is refused, there is no further waiting penalty.

And having read the actual rules rather than the explanatory memorandum posted by Vinny, i can say it is clear that it is the date of departure from the UK that starts the clock for the ban period.

[the scouser]

They are actually separate issues.

What it means is that from 29 February, and irrespective of your previous immigration history, if you tell porkies either on the application form or at interview, or submit dodgy documents to support your case, you will be refused and any application within the space of the next ten years will be automatically refused without further consideration. This is only relevant to the application at hand and not any previous applications.

Then, from 1 April, if you have previously been in the UK unlawfully in whichever capacity, any application you make within the set timescales will be refused without further consideration. The effective date will be the date you left the UK either voluntarily or under compulsion.

What constitutes deception is really the crux of the matter. My personal definition of it would be to seek to gain an advantage at the cost of another, in this case the Secretary of State for the Home Department; the corollary being that genuine mistakes cannot possibly constitute deception. However, as the decision will rest in the hands of the visa officer in question, I suspect we are going to get some very arbitrary and inconsistent definitions of deception.

On the positive side, it is only a matter of time before these new stipulations are tested in the courts, but until such a time we must live with the rules as they stand.

Scouse.

[dsys]

They are actually separate issues.

What it means is that from 29 February, and irrespective of your previous immigration history, if you tell porkies either on the application form or at interview, or submit dodgy documents to support your case, you will be refused and any application within the space of the next ten years will be automatically refused without further consideration. This is only relevant to the application at hand and not any previous applications.

Then, from 1 April, if you have previously been in the UK unlawfully in whichever capacity, any application you make within the set timescales will be refused without further consideration. The effective date will be the date you left the UK either voluntarily or under compulsion.

What constitutes deception is really the crux of the matter. My personal definition of it would be to seek to gain an advantage at the cost of another, in this case the Secretary of State for the Home Department; the corollary being that genuine mistakes cannot possibly constitute deception. However, as the decision will rest in the hands of the visa officer in question, I suspect we are going to get some very arbitrary and inconsistent definitions of deception.

On the positive side, it is only a matter of time before these new stipulations are tested in the courts, but until such a time we must live with the rules as they stand.

Scouse.

Thanks for clearing that up. Any changes to the right of appeal for spouse aplications - I know they were looking at that. Read through the link attached but couldn't see anything. Most of it appeared to be related to the skilled migrent workers.

Edited February 8, 2008 by dsys

[paully]

Does that mean the following:

Case 1:I overstay. Leave on my own expense. wait say two years. Make an application, its refused I cannot reapply for one year.

Case 2: I overstay. Leave on my own expense. Immediately reapply, refused, wait one year. apply again.

or does the "following their breach" mean that it is the date of departure.

and

how will they prove that you lied? Or can they just say hey we think you're lying here.

what about the right to appeals - they were discussing changes in this area, is there anything we should look out for there

"following their breach" presumably means from the start of the overstay, although there is an exclusion for those who overstay by only 28 days or less and then leave voluntarily and at their own expense. Looks more to me like case 2 from the 2 you gave.

Deception will require intent by the applicant, and so not always easy to prove to a tribunal.

Right to appeal? If you've overstayed, you've overstayed - not much use to say you forgot the date you had to leave the UK by or you mislaid your passport. If it's against a finding of deception, then an appeal would be possible.

Edited February 8, 2008 by paully

[dsys]

Right to appeal? If you've overstayed, you've overstayed - not much use to say you forgot the date you had to leave the UK by or you mislaid your passport.

sorry I was going abit off topic with that, there was a recent consultation doc going around that suggested the right to appeal a spouse application refussal may be removed.I was refering to that. Sorry for the confusion.

Edited February 8, 2008 by dsys

[paully]

^ No problem. Of course, there'd be nothing to stop you running the usual Human Rights argument at an appeal, right to family life etc under the Convention.

[dsys]

^ No problem. Of course, there'd be nothing to stop you running the usual Human Rights argument at an appeal, right to family life etc under the Convention.

Isn't the normal response to that approach - You can have a normal family life in Thailand.

[Eff1n2ret]

"following their breach" presumably means from the start of the overstay,

Er, no - think about it, if you overstayed for 10 years and left the UK????

As previously stated, it is the date of departure from the UK that will star the clock

[the scouser]

"following their breach" presumably means from the start of the overstay, ...

I'm afraid I can't see this being the case as it would mean that anyone overstaying in excess of a year and then leaving voluntarily would not be subject to any sanction.

Scouse.

[Eff1n2ret]

"On the positive side, it is only a matter of time before these new stipulations are tested in the courts, but until such a time we must live with the rules as they stand.

Scouse. "

Yes one can foresee the challenges coming thick and fast. I can't see a 10-year blanket ban on illegals or overstayers lasting for very long, it's just too OTT.

The maximum criminal penalty under S24 of the 1971 Immigration Act is 6 months imprisonment, for a conviction for illegal entry, overstaying or working in breach or even entry in breach of a Deportation Order. As far as I can see, under the Rehabilitation of Offenders Act, such a conviction would be considered spent within 7 years.

For the dear old BIA to say that a longer period is required before someone can even make an application (let alone be granted a visa) just doesn't look fair.

[Ollie]

For the dear old BIA to say that a longer period is required before someone can even make an application (let alone be granted a visa) just doesn't look fair.

I don't thinks it's the BIA saying that, but rather the law?

I guess other changes will be made to ensure consistency for some of the differing scenarios highlighted above?

Intent is mentioned. I'm not sure that as it stands, this needs to be established, just that the deed was done?

[Richard W]

So, in the settlement visa application (VAF 4), does one have to list (in some fashion) in answer to Question 5.13, all one's criminal actions committed but not convicted of in Thailand, such as dropping litter or playing cards for money? Failure to do so presumably now gets one excluded for 10 years!

Life has got even tougher for former bargirls ashamed of their past occupation!

[the scouser]

Richard,

I really do appreciate your irony, but most are unwitting.

Scouse

[Bungle]

Would someone who entered the UK on someone else's passport be considered to have entered the UK illegally or to have used deception in an immigration application? There's a big difference in the penalties.

Also, if someone was told by the police to leave the country and complied with almost immediate effect would that count as leaving the UK voluntarily or being removed? Again, there is a big difference in the penalties.

[Eff1n2ret]

Would someone who entered the UK on someone else's passport be considered to have entered the UK illegally or to have used deception in an immigration application? There's a big difference in the penalties.

Also, if someone was told by the police to leave the country and complied with almost immediate effect would that count as leaving the UK voluntarily or being removed? Again, there is a big difference in the penalties.

In reply to the first question, the offence would be illegal entry, and a visa national who gets hold of a forged passport to get into the UK is normally treated as an illegal entrant having "entered without leave", because in their true identity they don't have "leave to enter". But in practice someone who was served with papers as an illegal entrant and removed would suffer the same penalty as the deceptive entry clearance applicant who has been refused - neither could apply for 10 years.

As far as "being told by the police" to leave the country is concerned, what normally happens if the police encounter an illegal entrant or an overstayer is that they are arrested and then dealt with by an immigration officer who serves a notice informing of the offence, and the person becomes subject to removal directions. He/she might be detained until he is put on a plane, but sometimes might be released and told to report for their flight. In either case, the offender is being "removed", and I suspect this is the likely construction that will be applied to these proposals.

I think that leaving the UK "voluntarily" really does only apply to people who decide to go home before the law catches up with them.

[Ollie]

As far as "being told by the police" to leave the country is concerned, what normally happens if the police encounter an illegal entrant or an overstayer is that they are arrested and then dealt with by an immigration officer who serves a notice informing of the offence, and the person becomes subject to removal directions. He/she might be detained until he is put on a plane, but sometimes might be released and told to report for their flight. In either case, the offender is being "removed", and I suspect this is the likely construction that will be applied to these proposals.

In reality, what happens if the Police encounter an immigration offender, is that they contact the BIA, who usually reply that they haven't got any resources to deal with it. The offender(s) details are then recorded by said Police Officer and they are allowed to go on their way.

If, however, they have been arrested on other matters, and their true identity is known or subsequently becomes identified, the Police will then liaise with whatever Govt. Dept. Local Authority, business etc. they have identified as being ripped off by the the said immigration offender, in the vain hope that the full weight of the law will be thrown at them. This doesn't neccessarily include the BIA, who still might not be able to find the resources.....

Edited February 9, 2008 by Ollie

[caledonia]

Wow - i think I get dizzy just trying to keep up!!

I am not in the least bit surprised - especially not about the stuff with people overstaying.

Although I really hope the 'deception' aspect is going to be clarified as I would be concerned some people are going to fill out mis-informationb through sheer ignorance or stupidity and the penatlies seem rather harsh!! Ten years - that really is a long time!

[Richard W]

I really do appreciate your irony, but most are unwitting.

It could be a serious issue. Some of the questions are far too wide. For example, consider Question 5.11:

'5.11 Have you ever been involved in, supported, or encouraged terrorist activities in any country? Have you, ever been a member of,

or given support to an organisation that has been concerned in terrorism? Refer to the Guidance notes for definitions.'

Quite a few ethnic Thai men would have to answer 'yes' because of having done national service. The reason?

1. They have been a member of the Thai army.
   
2. The Thai army launches coups.
   
3. Coups come under the definition of terrorism (VAF4 Guidance):

   Any act committed, or the threat of action, designed to influence
   a government or intimidate the public and made for the purpose
   of advancing a political, religious or ideological cause and that
   involves serious violence against a person; that may endanger
   another person’s life; creates a serious risk to the health or safety
   of the public; involves serious damage to property; is designed to
   seriously disrupt or interfere with an electronic system.

4. An organisation is concerned in terrorism if it:
   a. commits or participates in acts of terrorism,
   b. prepares for terrorism,
   c. promotes or encourages terrorism (including the unlawful
   glorification of terrorism), or
   d. is otherwise concerned in terrorism
   

Where is my reasoning wrong? May people rely on the wording of the questions in VAF4 and ignore the VAF4 guidance?

I can't work out if showing support for the recent coup also requires a 'yes' answer.

I seriously suspect that Britain's imposition of sanctions on Saddam Hussein's régime made the UK Government an 'organisation concerned in terrorism' under clause ©.

[the scouser]

Your reasoning cannot be construed as "wrong" but, rather, naive. I would say not to look at things in their purity/isolation.

The reason why the "terrorist" questions are asked is because a few years ago it became apparent that a Rwandan bloke, who had been instrumental in the genocide there, had been given asylum in the UK.

Yes, the questions are wide, but ultimately they're just protecting their own backs.

Scouse.

[fire and ice]

One year if, following their breach, they left the UK voluntarily at their own expense;

Five years if, following their breach, they left the UK voluntarily at public expense; and

Ten years if they were removed or deported from the UK following their breach.

If a Thai has overstayed and wanted to leave without UK problems they could get a ferry/eurostar to the continent, then use ground transport to some EU country they plan not to visit again and then book an airfare to BKK from that country. Then they'd only have to answer to the authorities in the country they were leaving from.

Or have I missed something here?

[Mahout Angrit]

If a Thai has overstayed and wanted to leave without UK problems they could get a ferry/eurostar to the continent, then use ground transport to some EU country they plan not to visit again and then book an airfare to BKK from that country. Then they'd only have to answer to the authorities in the country they were leaving from.

Or have I missed something here?

Think so

Why would they do that?

They will more likely have their passport checked for overstay at a sea port than at Heath Row also they probably wouldn't be issued with a Schengen visa for EU countries if their permission to remain in UK had expired.

[distortedlink]

This is what I know and may be helpful.

About 7 years ago there was a protest from an Indian woman wishing to apply for entry into Britain. The dispute was about that an Immigration officer refused her entry because the officer accused her of giving misinformation. Having been appalled that she was accused of lying, the Indian lady appealed the decision, won the case and was eventually admitted into Britain.

Due to this case, the UK foreign office changed the primary Immigration law. What this means is that previous to the law amendment, the burden was on the visa applicant to prove that he/she are eligible for a UK visa.

After the change to the primary purpose law, it became the officers burden to prove that an applicant was not eligible for a UK visa. If the officer cannot put up a reasonable case why an applicant should not enter Britain, than the applicant must be issued a visa.

To define what I am saying is: if UK visa applicants genuinely qualify for a UK visa, than they cannot be refused entry into Britain under the primary purpose laws.

Edited February 10, 2008 by distortedlink

[bkk_mike]

Doesn't the UK still allow people who've lived there for 10 years (even if illegally) the ability to get ILR (or was it a UK passport?).

i.e. Isn't the new policy likely to force more people already in the UK to attempt to stay longer, rather than leave and apply for a proper visa? If only because they'll now find there's no possibility of going legal in whatever job they've been doing illegally.

P.S. As someone who met his Thai wife while she was working illegally on a visa she was overstaying in the UK, these new rules would have meant that we would have married in the UK, then contacted an immigration lawyer, where instead we married in Thailand, and got a regular spouse visa (9 years and 2 children ago).

The second route seems the more sensible, but these new rules would seem to make the first route the only one available in those circumstances. (Forcing people to go through the courts doesn't appear likely to reduce costs).

[bkk_mike]

If a Thai has overstayed and wanted to leave without UK problems they could get a ferry/eurostar to the continent, then use ground transport to some EU country they plan not to visit again and then book an airfare to BKK from that country. Then they'd only have to answer to the authorities in the country they were leaving from.

Or have I missed something here?

Think so

Why would they do that?

They will more likely have their passport checked for overstay at a sea port than at Heath Row also they probably wouldn't be issued with a Schengen visa for EU countries if their permission to remain in UK had expired.

Heathrow does check your passport on leaving nowadays (most of the time), although sometimes, especially if theres a massive delay on the security checks, they're not there.

The real problem for Thais is that Thailand stamps their passports when they return. If that didn't happen, nobody would actually be able to tell when you returned, i.e. whether you overstayed or not.

P.S. For exactly this reason, a "lost" Thai passport is a red flag to the visa officers at the embassy.

[the scouser]

Doesn't the UK still allow people who've lived there for 10 years (even if illegally) the ability to get ILR.

It's set at fourteen years of unlawful (or a mixture of lawful and unlawful) residence.

Isn't the new policy likely to force more people already in the UK to attempt to stay longer, rather than leave and apply for a proper visa? If only because they'll now find there's no possibility of going legal in whatever job they've been doing illegally.

The government is simultaneously cracking down on illegal employment too. From 29 Feb, an employer who takes someone on illegally will be fined up to £10,000.00 per unlawful employee. The new rules may mean that someone who is already unlawfully in the UK may not be inclined to leave voluntarily, but the government is trying to remove their facility to work, which is the principal reason why many come in the first place, and thereby remove the incentive to stay.

Scouse.

[caledonia]

The government is simultaneously cracking down on illegal employment too. From 29 Feb, an employer who takes someone on illegally will be fined up to £10,000.00 per unlawful employee. The new rules may mean that someone who is already unlawfully in the UK may not be inclined to leave voluntarily, but the government is trying to remove their facility to work, which is the principal reason why many come in the first place, and thereby remove the incentive to stay.

Scouse.

A great idea in principle but one negative is that employers get overly cautious as I have saw through my hubby trying to find work for longer than 6 month contracts. A few places won't hire people with less than 2 years on their visa - so thats settlement folk out the window. The lastest problems have been that as his settlement visa validity starts to reduce then more and more places have turned him down saying he is not eligible to work. I even spoke to the HR lady in one place to explain he would get a new visa - not interested! So as his latest contract ends in March we will need to apply in a PEO for the added reason - him without a passport saying he can work means him with no job - great!! I just wish the government could perhaos clue up emoployers as to what they need to be looking for rather than leaving them to guess work!!! Most jobs will still take a P45 and proof of NI that you can work - if you have been here long enough illegally you have them already!

Meanwhile i still know of a White South African working for a major insurer who doctored the photocopy of her visa - face fits a bit more I guess and they forget she too can be just is illegal as the Indian waiter, Nigerain postie, or Thai check out girl!!! grrrr - anyway - sorry rant over!!