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:

(7B) subject to paragraph 320(7C), where the applicant has previously breached the UK's immigration laws 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 (whether successful or not);

Overstayers, Illegal Entrants and those who have breached a condition attached to their leave

Previously overstaying by less than 14 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 14 days are automatically refused entry clearance for different periods, depending on whether 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 Home Office tends to serve notices of removal on even those who are leaving the UK voluntarily.  The probable reason for this is so that the Home Office can record it as a removal for statistical purposes.  Any voluntary returnee should therefore try to protect their position in advance by notifying the Home Office of their intention to return and to keep evidence of this.

Deception

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. 

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;
• (3) failure to comply with any conditions attached to the grant of leave to enter or remain;
• (4) failure by the person concerned to maintain or accommodate himself and any dependants without recourse to public funds;

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