Uk Settlement Visa Refusals Under Para 320(11)

[7by7]

There are currently two threads running started when the OP's wife had been refused under this rule. I have some general comments I would like to make, but rather than drag the two threads away from the OP's intention (obtaining advice on how to proceed) I thought it better to post them here.

Para 320(7B) of the immigration rules says that an application must be refused if the ECO has evidence that the applicant has in some way previously been in breach of the immigration rules. If 320(7B) applies, not only must the ECO refuse an application, there is also a possibility that the applicant will be banned from entering the UK for up to 10 years.

Para 320(7C) says that this rule does not apply to, among others, spouses of British citizens or residents applying for settlement. However, the application can still be refused under Para 320(11).

Refusals under 320(7B), where the ECO has sufficient evidence, are mandatory, but refusal under Para 320(11) is discretionary, but it is not a decision the ECO can make on their own; all refusals under 320(11) must be referred to the ECM. (RFL3 Refusal on general grounds - RFL3.4)

As can be seen from the guidance, the ECO cannot refuse merely because the applicant has previously contrived in a significant way to frustrate the intentions of the immigration rules; there must be other, aggravating circumstances as well.

It has been suggested that this type of refusal is the ECO's latest wheeze for refusing people; as if the ECOs are determined to find any way possible of refusing as many applicants as they can get away with.

I find that suggestion difficult to take seriously for two reasons.

1) If the ECOs in Bangkok are determined to refuse using whatever petty excuse they can think of, they are not very good at it; as the consistent 90%+ acceptance rate in Bangkok shows.

2) More to the point, the ECO cannot just pluck Para 320(11) out of the hat as an excuse for a refusal; to refuse under Para 320(11) the applicant must have previously contrived to frustrate the intentions of the immigration rules. For example, previously entered the UK illegally; which is the situation in the two cases current on the forum.

With respect to the two ladies concerned, if they had not done so then they would not have been refused under Para 320(11), and may very well not been refused at all. I don't want to rub salt into any wounds, and I know this will sound harsh and uncaring, but there is an old saying: "If you can't do the time; don't do the crime."

I am sympathetic to their plight, and do believe that everyone deserves a second chance. Hopefully both ladies will be able to show that the aggravating circumstances in their cases are not really all that aggravating, and both their appeals will be successful.

Finally, I ask respondents, if any, to please stick to general discussion in this thread, and that any specific advice for the persons concerned be posted in the relevant thread. Thank you.

[TickTock]

I always thought being in the country illegally was pretty serious stuff. Thanks for the clarification 7by7.

[Electra]

Oh dear.

Yet another instance proving the adage that a little knowledge is a dangerous thing.

Lest anyone gives credence to 7by7's editorialisation of the Rules it should be noted that the aggravating circumstances to which he refers are not rooted in the immigration breach itself but in some other conduct during the period of stay in which the offender may have engaged. It is for the ECO to demonstrate what these may have been and under current policy guidelines they would have to have been specified in the refusal formula given to the applicant. In the threads currently involving Para320(11) refusals neither ECO has cited what these aggravating circumstances might have been and therefore one can safely assume he probably knows of none and as such the refusal is flawed and unsustainable on any appeal.

7by7's belief in the competence of the UKBA is of no consequence but to many of us more witting to the actualite their application of the rules can be, shall we say, just a tad inventive.

[7by7]

Lest anyone gives credence to 7by7's editorialisation of the Rules it should be noted that the aggravating circumstances to which he refers are not rooted in the immigration breach itself but in some other conduct during the period of stay in which the offender may have engaged.

I did not quote the full rules nor the guidance, for the obvious reason of lack of space. However, you obviously failed to see the links I provided to both, where this point is clearly made for all to read.

In the threads currently involving Para320(11) refusals neither ECO has cited what these aggravating circumstances might have been

As neither poster has quoted the full refusal notice, we don't know that. If the ECO didn't, then the refusal is unsound and should be overturned. If the ECO did, then as I said before; hopefully both ladies will be able to show that the aggravating circumstances in their cases are not really all that aggravating, and both their appeals will be successful

If I have made an error of fact, please point this out.

Feel free to offer a different opinion to mine; that is what a forum is all about.

But can you for once kindly refrain from your usual attempts at petty point scoring and thinly veiled insults.

7by7's belief in the competence of the UKBA is of no consequence but to many of us more witting to the actualite their application of the rules can be, shall we say, just a tad inventive

Again you suggest that the ECOs are set on refusing on the flimsiest of excuses, with total disregard of the rules and whether an applicant meets the criteria. If this is so, how do you account for the fact that over 90% of applications are successful?

Edited August 5, 2009 by 7by7

[Electra]

Hopefully both ladies will be able to show that the aggravating circumstances in their cases are not really all that aggravating, and both their appeals will be successful.

From my reading of the threads it is abundantly clear that both refusal formulae failed to disclose any such circumstances. I rather think you are just making assumptions here and you know what that means.

Perhaps the posters concerned would care to confirm the point lest you continue in your misguided and ultimately redundant advice.

[7by7]

See edit to my previous made while you were typing above.

[Electra]

Yes, you were a trifle exposed, weren't you?

[7by7]

Exposed? I prefer expansion and clarification; which I started before your post appeared. Or do you really believe I could have typed all that in 22 seconds?

I have never made any claims to any sort of professional expertise, qualification or experience.

You constantly hint at having such.

I post what I believe to be helpful advice based on my experience and research. If I am shown to be in error I will accept that and hopefully learn from it.

Most of your posts are snide comments. If you actually possess even a fraction of the knowledge you claim, why do you very rarely post any useful advice?

You've also neatly ignored one very important question, so I'll ask it again:-

Again you suggest that the ECOs are set on refusing on the flimsiest of excuses, with total disregard of the rules and whether an applicant meets the criteria. If this is so, how do you account for the fact that over 90% of applications are successful?

[DagonKhan]

Interesting post 7x7 and thanks for the information.

[Castor83]

Well in my case I can assure you there is no reference on the refusal notice to any aggravating circumstances. And I've emailed the ECM to ask him.

Although I think, especially in my case. It is simply the point which tips the scales on the balance of probabilities...

edit: If it interests either of you I have the refusal notes in a file on this laptop if you would like to read them. I would certainly appreciate any more info you have, because I am struggling to understand the 320(11) relevance, other than the fact that she was here illegally and worked illegally whilst she was here.

Edited August 7, 2009 by Castor83

[Eff1n2ret]

2) More to the point, the ECO cannot just pluck Para 320(11) out of the hat as an excuse for a refusal; to refuse under Para 320(11) the applicant must have previously contrived to frustrate the intentions of the immigration rules. For example, previously entered the UK illegally; which is the situation in the two cases current on the forum.

Sorry, I can't quite follow the logic here. Illegal entry and overstaying and the penalties for doing so are dealt with in Para 320 7 B, and there is an exemption for (inter alia) spouse applicants in 320 7C. I can't see any appeal court accepting that an ECO can say, "OK, there's no ban under 320 7 B on this applicant who previously entered the UK illegally, but I can use 320(11) as a catch-all and refuse under that." There has to be some further transgression before 320(11) is engaged, and the examples given are such serious matters as failure to comply with reporting restrictions, using false identities, facilitating illegal immigration of harbouring offenders. Whether Castor's lady's illegal working is a sufficiently serious "frustration of the immigration rules" is for an immigration judge to decide.

These provisions of the rules are relatively new, and it is hardly surprising that there may be some ECOs who want to push the boundaries to deal with cases where for whatever reason they are unhappy with an applicant, but haven't sufficient to refuse otherwise. It's hardly helpful to peddle old nostrums such as "If you can't do the time....etc", and characterise a previous transgression as justification for a decision made as a "punishment". It doesn't work like that, nor should it.

[Castor83]

Not complying with reporting restrictions sounds very new! I'm sure that wasn't on there last week... Maybe I am going crazy.

But yeah it also says that is not an exhaustive list, so who knows what else counts.

[Electra]

Effin2ret

Precisely, and perhaps he may accept the point from you for it seems his antipathy towards me blinds him to the detriment of sound reasoning.

You mention that illegal working might be worthy of consideration by a judge in determining if the rules may have been frustrated et al. I'm not sure this can be right.

In order to bring themselves into the ambit of Para 320 ( 11 ) the applicant first has to have breached the rules, whether it be through overstaying, working in breach or illegal entry, in which case the question of aggravating circumstances must then be considered. In the case of working in breach, working of course cannot constitute an aggravating circumstance for the obvious reason. Overstayers of course cannot work in breach since there are no conditions to breach and illegal entrants by their very nature have no legal status quo and therefore can neither overstay nor work in breach. I rather think this is why the exampled list given in the UKVisa guidance does not specify illegal employment as a major aggravating factor.

Just a thought.

[Eff1n2ret]

Effin2ret

You mention that illegal working might be worthy of consideration by a judge in determining if the rules may have been frustrated et al. I'm not sure this can be right.

I'm not sure either, but I don't know how far 320(11) has been tested in the courts. I take the point that in dealing administratively with an offender, an IO will serve a notice detailing only the most obvious and significant offence, be it illegal entry or overstaying (an overstayer may also have worked in breach during his period of leave). But, for example, illegal entrants and overstayers are frequently caught working under a false identity and I can imagine that this might provide grounds for a predatory IO or ECO to refuse under 320(11). The argument by the Presenting Officer at the appeal would be "not only did the appellant enter the country illegally, but he/she remained there for x years (length of time might be relevant) and worked illegally (no mention of "in breach of leave", but it was nonetheless illegal) under a false identity." No single bit of that might be construed as a sufficient "frustration of the intentions of the Rules" but the cumulative history might do, and I think circumstances will alter such cases.

I'm trying to decide whether churning through this guff is a greater masochism than watching England's demise at Headingly on the telly, but I think I'll steel myself and go for the latter.

Where's the Scouse when you need him

[the scouser]

Perhaps I'm sitting on the fence, but I can see where you are both coming from.

As Electra states, it is hard to perceive working as being an aggravating circumstance in relation to both overstayers and illegal entrants, as they are both without status and therefore not in breach of conditions should they take employment. However, I take Effin2ret's point that if an overstayer has worked in breach prior to the lapsing of his leave, then this might be an aggravating factor. However, it would be down to the enforcement IO to actually report this, rather than simply serving a 151A as an overstayer.

Scouse.

[7by7]

for example, illegal entrants and overstayers are frequently caught working under a false identity and I can imagine that this might provide grounds for a predatory IO or ECO to refuse under 320(11).

Apart from my not believing that the average ECO is 'predatory', I agree that this could be grounds.

Remember, in at least one of the current cases the lady concerned gained entry to the UK using a false identity; whether she used that false identity to obtain a NI number, or simply took cash in hand employment we don't know, and the point is moot anyway.

The list of aggravating circumstances given in the guidance is not exhaustive, and these aggravating circumstances do not all appear to be breaches of the immigration rules, for example "using an assumed identity or multiple identities to obtain asylum benefits, state benefits, tax credits goods or services."

Whether Castor's lady's illegal working is a sufficiently serious "frustration of the immigration rules" is for an immigration judge to decide.

Indeed.

As I said before, I believe that everyone deserves a second chance. Hopefully both these ladies will get theirs.

[Bird on the Wire]

It's not a question of being given a second chance, though: it's a question of having the correct decision, in accordance with the law, made in the first instance. You've evidently already determined in your own mind that these 2 women are deserving of being refused simply because they previously entered the UK illegally, but that mindset is not reflected in the law. An ECO who lets such instinct cloud his view is not worthy of the position.

[7by7]

I have made no such determination, and cannot do so as I am not in possession of all the facts.

What I am saying is that I can understand why the ECO, and ECM as these refusals have to be referred to the ECM, refused.

Whether these refusals were correct or not is not for you or I to decide; that is what will happen at the appeal.

[Bird on the Wire]

Didn't you write elsewhere the tired, old aphorism "if you can't do the time, don't do the crime"? That, to me, sounds as if you have pre-determined the matter.

You state that you can understand why the ECO/ECM have come to the conclusions that they have, but such a standpoint is not reflected in law. Therefore, you are countenancing ill-judged, visceral decision-making by the people at the Brit embassy in Bangkok. Fair enough, but you then must acknowledge that they refuse some applications just because they want to, and they will seek any trumped-up reference to the law to do so.

An immigration judge, surely, is as equally bound by the law as an ECO? If he decides to grant an appeal it's not on a whim, but because he thinks that legally the visa should be given, which, in turn, begs the question why the ECO didn't grant the visa at the time of application.

[Eff1n2ret]

You've evidently already determined in your own mind that these 2 women are deserving of being refused simply because they previously entered the UK illegally, but that mindset is not reflected in the law.

Quite. But that was the premise on which this thread was started, and it's dangerously misleading.

The rose-tinted view that 90% of applications are granted, therefore everything's ok rather misses the point that the refusal percentage in cases which attract a right of appeal is never going to get a lot higher, because every such refusal potentially requires an appeal statement from the ECO, and they don't get much time allocated to write them. One I know who gave it up a few years back said he was expected to do them in his own time. Even in these cut and paste days they're not something you can dash off in a few minutes, so with a few refusals every week you can potentially give yourself an extra day's work. Not too many people will volunteer for that.

But that's not to say that the refusal decisions are the right ones or that there aren't a corresponding number of bad visa issues. The point is that there is now an indication that ECOs maybe extending the interpretation of 320(11) beyond its intended meaning, because it's an easy peg on which to hang a refusal.

Edited August 7, 2009 by Eff1n2ret

[7by7]

Bird,

What I meant, and I thought the context made it clear (obviously not to some), was that if one has previously entered the UK illegally, e.g. using a false identity, then one should not be surprised if one encounters difficulties if this deception comes to light.

The refusal does have a basis in law; Para 320(11) of the immigration rules! Whether the ECO and ECM have interpreted and applied this law correctly is for the appeal to decide.

Even if they have erred on this occasion this is not proof that ECOs in Bangkok refuse just because they want to! You seem to be subscribing to the view that ECOs are all some form of sociopath who took the job purely to give themselves the opportunity to inflict misery on innocent individuals!

ECOs cannot refuse on a whim, and the AIT cannot change that decision on a whim; both must base their decision on the law. What is evident when reading the archives of the AIT is that in most successful appeals the appellant has provided additional evidence that the ECO was not privy to.

Most, not all. As in every situation where someone has to make a decision based upon evidence provided, mistakes can happen. They shouldn't, but they do. However, I believe that, to paraphrase Churchill, the present system is the worst way of deciding these things; except for any of the alternatives!

Eff1n2ret,

What you say about the extra, unpaid, work caused by a refusal is surely an argument for allowing as many applications as possible!

But then you imply that ECOs are looking for any reason to refuse; any "easy peg on which to hang a refusal."

Which is it?

Edited August 7, 2009 by 7by7

[Bird on the Wire]

Your naivety, in these days of cynicism, is quite touching.

[7by7]

Does that mean you do subscribe to the view that ECOs are all some form of sociopath who took the job purely to give themselves the opportunity to inflict misery on innocent individuals?

[Bird on the Wire]

Perhaps the official reason is career development, but the reality is the wheeze of tootling about at taxpayers' expense whilst pretending that one is holding back the hordes.

[glegolo]

edit: If it interests either of you I have the refusal notes in a file on this laptop if you would like to read them. I would certainly appreciate any more info you have, because I am struggling to understand the 320(11) relevance, other than the fact that she was here illegally and worked illegally whilst she was here.

--------------------------------

I am Swedish, and maybe not have any right to comment this stuff. And certainly not judge either of you guys.

But in Sweden we are SICK and TIRED of all these people coming in with a criminal record.

This is maybe not a criminal record so to speak. But in my eyes, stay in England illegal and work in England illegal.

What the hel_l are they doing people... And now we shall feel sorry for them or what???

Glegolo

++

Edited August 9, 2009 by glegolo

[Brewsta]

Surely the point to be taken here is that if One is unfortunate or unlucky to expose yourself to the wrath of the Big Man, there can lie only trouble.

Stay invisible and solvent, hopefully staying fright-free in the Land of Smiles......

Of course we are saddened by some situations, but IF DUE COURSE OF LAW is available and availed of, there ain't too much more that most of us can do or constructively stress about.

Stay out of sight, by Day & Night.

Be Cool & Calm, 'Jai Yen' - alright?

Avoid the MIB and their Agents All,

and here in LOS can have a Ball.

It ain't so easy living here,

Paradise or hel_l can be, I fear.

rgdz & Good Luck,

Brewsta

Edited August 9, 2009 by Brewsta

[Castor83]

Hey all,

I'm just bumping this I guess, cos I found something strange when I was looking at the guidance refusal thing on the UKBA website.

http://www.ukba.homeoffice.gov.uk/policyan...ionrules/part9/

Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused...

...(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.

(11) DELETED

(12) DELETED...

Anyone make any sense of that?

Guess it's wishful thinkin' for me, but I'm sure that wasn't on there before...

[Eff1n2ret]

Hey all,

I'm just bumping this I guess, cos I found something strange when I was looking at the guidance refusal thing on the UKBA website.

http://www.ukba.homeoffice.gov.uk/policyan...ionrules/part9/

Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused...

...(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.

(11) DELETED

(12) DELETED...

Anyone make any sense of that?

Guess it's wishful thinkin' for me, but I'm sure that wasn't on there before...

It' nonsense, but it looks like a bit of faulty drafting to me. I doubt it can be inferred that what is in the Para 11 that they've hit you with has been deleted, otherwise it would have been, if you see what I mean. I can't remember what was there before. The Rules get chopped and changed so frequently now that it would be a nightmare trying to keep a hard copy up to date.

[Castor83]

Yeah I that what I kinda guessed... Shame though, woulda made the appeal go alot smoother