Typically a migrant right here within the UK unlawfully will wish to apply for immigration standing. Attorneys and the House Workplace typically name this “regularising” their standing, as a result of the particular person turns into a “common” migrant inside the guidelines reasonably than an “irregular” one outdoors the foundations. One of many methods to do that is by leaving the nation and making an utility for entry clearance from outdoors the UK.
Modifications to the immigration guidelines, nevertheless, have made it successively more durable and more durable to accumulate lawful standing after being unlawfully current within the UK. One of many provisions that may make this tough is paragraph 9.8.2 of Half 9 of the immigration guidelines.
Paragraph 9.8.2: contriving to frustrate the intentions of the foundations
Paragraph 9.8.2 of Half 9 of the immigration guidelines is a discretionary floor for refusal. It gives that entry clearance or permission to enter the UK could be refused the place:
(a) the applicant has beforehand breached immigration legal guidelines; and
(b) the appliance was made outdoors the related time interval in paragraph 9.8.7; and
(c) the applicant has beforehand contrived in a big technique to frustrate the intention of the foundations, or there are different aggravating circumstances (along with the immigration breach), equivalent to a failure to cooperate with the redocumentation course of, equivalent to utilizing a false identification, or a failure to adjust to enforcement processes, equivalent to failing to report, or absconding.
This provision additionally applies to guests as Appendix V: Guests imports Half 9 into these guidelines.
The “related interval in paragraph 9.8.7” is the part of the foundations that offers with re-entry bans. For instance, if the applicant overstayed however left at their very own expense, they are going to be refused sure forms of entry clearance functions if they’re made earlier than they’ve accomplished 12 months outdoors the UK. If the applicant used deception in an utility, the ban is for 10 years. Re-entry bans don’t apply to human rights functions, equivalent to these made below Appendix FM, although importantly, candidates can nonetheless be refused below paragraph 9.8.2.
If the applicant continues to be inside the interval of their re-entry ban, the appliance can be refused with none additional consideration given to whether or not they pissed off the intention of the foundations, except it’s one to which the re-entry bans in paragraph 9.8.7 don’t apply, equivalent to an Appendix FM utility. If the re-entry ban is behind them, the choice maker will then take into account whether or not the paragraph applies.
The brand new guidelines additionally carve out exceptions for kids and brief intervals of overstaying:
9.8.4. In paragraphs 9.8.1, 9.8.2, 9.8.3, and 9.8.3A, an individual will solely be handled as having beforehand breached immigration legal guidelines if, after they have been aged 18 or older, they:
(a) overstayed their permission and neither paragraph 9.8.5. nor paragraph 9.8.6. apply; or
(b) breached a situation hooked up to their permission and entry clearance or additional permission was not subsequently granted within the data of the breach; or
(c) have been (or nonetheless are) an unlawful entrant; or
(d) used deception in relation to an utility (whether or not or not efficiently).9.8.5. A interval of overstaying can be disregarded for the aim of paragraph 9.8.4. (a) the place the particular person left the UK voluntarily, not on the expense (immediately or not directly) of the Secretary of State, and:
(a) the particular person overstayed for 90 days or much less, the place the overstaying started earlier than 6 April 2017; or
(b) the particular person overstayed for 30 days or much less, the place the overstaying started on or after 6 April 2017; or
(c) paragraph 39E utilized to the interval of overstaying.9.8.6. A interval of overstaying can be disregarded for the aim of paragraph 9.8.4.(a) the place the overstaying arose from a call to refuse an utility, or cancellation of permission, which was subsequently withdrawn, or quashed, or reconsidered by route of a court docket or tribunal, except the authorized problem which led to the reconsideration was introduced greater than 3 months after the date of the choice to refuse or cancel.
The “contriving to frustrate” rule imposes a three-stage take a look at:
- To begin with, did the applicant breach immigration legal guidelines in one of many specified methods;
- If so, are there extra “aggravating circumstances”;
- In that case, the choice maker nonetheless wants to contemplate whether or not to refuse; refusals below this paragraph of the foundations should not necessary.
To reiterate, even the place an individual has beforehand contrived in a big technique to frustrate the intentions of the immigration guidelines, they could nonetheless be admitted to the UK. In contrast to the earlier model of the rule, which stated that the appliance “ought to usually” be refused, the brand new model merely says “could” be refused, which removes the presumption {that a} refusal would usually be acceptable.
Immigration regulation breaches which may set off refusal
When contemplating an entry clearance utility, immigration officers will fastidiously take into account whether or not an applicant has engaged in what officers name “hostile behaviour.” In addition to trying on the info introduced within the utility itself, officers are instructed at all times to carry out the usual House Workplace checks, that are:
- House Workplace safety checks
- different safety checks
- Police Nationwide Laptop (PNC)
- inside House Workplace techniques
- info on the appliance kind
The record of immigration regulation breaches which may set off this provision is a finite and exhaustive record. “Beforehand breached immigration legal guidelines” is outlined in paragraph 6.2 of the foundations as follows:
an individual beforehand breached immigration legal guidelines in the event that they overstayed or used deception in relation to a earlier utility for entry clearance or permission.
Apparently, the House Workplace steering defines this in another way:
An individual may have beforehand breached the UK’s immigration legal guidelines if, when aged 18 or over, they’ve:
- overstayed (except an exception applies)
- breached a situation of their permission
- been, or are, an unlawful entrant (‘unlawful entrant’ consists of those that have tried to enter illegally)
- used deception in an utility for entry clearance or permission to enter (whether or not the appliance was profitable or not)
That is according to the para 6.2 definition of “breach of immigration legal guidelines”:
an individual is in breach of immigration legal guidelines for the aim of those guidelines the place the particular person is an overstayer; is an unlawful entrant; is in breach of a situation of their permission; or used deception in relation to their most up-to-date utility for entry clearance or permission
As a result of para 9.8.2 makes use of the “beforehand breached immigration legal guidelines” wording, it’s debatable that it can’t be utilized in instances the place the breach in query is a breach of a situation or unlawful entry, as steering can not impose stricter necessities on an applicant than that which is discovered within the Guidelines.
Nonetheless, on condition that the House Workplace is clearly taking a special strategy right here and this displays the earlier iteration of this rule, it’s higher to proceed on the idea that the broader definition applies, although I’d be tempted to boost this level at any related attraction or judicial evaluation.
If a behaviour by the particular person involved isn’t listed right here then paragraph 9.8.2 isn’t engaged in any respect.
To place it one other method, these behaviours symbolize the minimal required to set off a refusal below this paragraph. Nonetheless, they aren’t adequate to justify refusal with out extra. Aggravating circumstances are additionally required, although paragraph 9.8.2 appears to recommend that merely “contriving to frustrate the intentions of the foundations” is adequate (my emphasis):
(c) the applicant has beforehand contrived in a big technique to frustrate the intention of the foundations, or there are different aggravating circumstances (along with the immigration breach), equivalent to a failure to cooperate with the redocumentation course of, equivalent to utilizing a false identification, or a failure to adjust to enforcement processes, equivalent to failing to report, or absconding.
We’ll flip to aggravating circumstances in a second although I wish to pause to level out the clumsy drafting of the paragraph because it appears to deal with “contriving to frustrate the intentions of the foundations” as if it have been a separate criterion, adequate to refuse the appliance with out the presence of aggravating components. Not solely is that not how the earlier model of this rule operated however it’s additionally not how the House Workplace steering interprets it (my emphasis):
When the circumstances of the earlier breach of immigration legal guidelines are additionally aggravated by different actions with the intention to intentionally frustrate the foundations, you will need to take into account refusing entry clearance or permission.
This implies when an applicant has carried out a number of of the next:
- been an unlawful entrant
- overstayed
- breached a situation hooked up to their go away
- used deception in a earlier utility
- acquiring:
- asylum advantages
- state advantages
- housing advantages
- tax credit
- employment
- items or providers
- Nationwide Well being Service (NHS) care utilizing an assumed identification or a number of identities or to which not entitled
and there are aggravating circumstances, equivalent to:
- absconding
- not assembly momentary admission/reporting restrictions or bail circumstances
- failing to fulfill the phrases of removing instructions after port refusal of go away to enter
- or unlawful entry
- earlier working in breach on customer circumstances inside brief time of arrival in
- UK (indicating a deliberate intention to work)
- receiving advantages, items or providers when not entitled
- utilizing an assumed identification or a number of identities
- getting NHS care to which they aren’t entitled
- making an attempt to stop removing from the UK, arrest or detention by House Workplace
- or police
- escaping from House Workplace detention
- switching nationality
- troublesome or frivolous functions
- not assembly the phrases of the re-documentation course of
- participating, making an attempt to participate, or facilitating, in a sham marriage or
- marriage of comfort
- harbouring an immigration offender
- folks smuggling or serving to in folks smuggling
So a refusal below this provision requires a “set off behaviour” within the type of an immigration breach plus the presence of at the least one “aggravating circumstances”. It’s thus unclear what is supposed by “beforehand contrived in a big technique to frustrate the intention of the foundations” as a separate provision in paragraph 9.8.2, as that is neither outlined within the guidelines nor the steering. It seems to be a drafting error.
Acquiring providers or assist to which they weren’t entitled
On condition that the presence of “aggravating circumstances” is required to refuse below the paragraph, along with having “beforehand breached immigration legal guidelines”, it’s fully unclear the place the addition of “receiving providers to which the applicant isn’t entitled to” comes from. There isn’t a clear foundation for this within the guidelines. This was additionally current within the earlier model of the steering, earlier than Half 9 got here into pressure, and it was equally incorrect then.
It could be the case that receiving these providers is linked to a “set off behaviour” below paragraph 9.8.2. For instance, an applicant with go away with a situation of “no recourse to public funds” would breach a situation of their go away by claiming state advantages.
In all different instances, nevertheless, receiving providers or assist to which one isn’t entitled must be seen as an “aggravating circumstance”, not as a set off behaviour. If there is no such thing as a set off behaviour, then receiving a service to which one isn’t entitled can not appeal to a refusal below paragraph 9.8.2.
Aggravating circumstances
Even when paragraph 9.8.2 is engaged as a result of the applicant beforehand breached immigration guidelines in one of many specified methods, the entry clearance officer must determine whether or not there have been “aggravating circumstances.”
The pure which means of the phrases makes clear that it have to be one thing severe along with the set off behaviour of breaching the foundations in of the required methods. That is bolstered by paragraph 9.8.2 itself, which units out some non-exhaustive examples of what is perhaps counted as circumstances that are aggravating:
a failure to cooperate with the redocumentation course of, equivalent to utilizing a false identification, or a failure to adjust to enforcement processes, equivalent to failing to report, or absconding.
This examples are all comparatively severe types of breaches of immigration regulation.
House Workplace coverage builds on these examples and provides numerous different forms of behaviour the House Workplace considers comparable. These embody (once more, this isn’t an exhaustive record):
- absconding
- not assembly momentary admission/reporting restrictions or bail circumstances
- failing to fulfill the phrases of removing instructions after port refusal of go away to enter or unlawful entry
- earlier working in breach on customer circumstances inside brief time of arrival in UK (indicating a deliberate intention to work)
- receiving advantages, items or providers when not entitled
- utilizing an assumed identification or a number of identities
- getting NHS care to which they aren’t entitled
- making an attempt to stop removing from the UK, arrest or detention by House Workplace or police
- escaping from House Workplace detention
- switching nationality
- troublesome or frivolous functions
- not assembly the phrases of the re-documentation course of
- participating, making an attempt to participate, or facilitating, in a sham marriage or marriage of comfort
- harbouring an immigration offender
- folks smuggling or serving to in folks smuggling
The steering goes on to verify that entry clearance officers should take into account all instances on their deserves:
It’s essential to take into account all of the circumstances of the case. Elements which can be related to your determination embody:
- why and the way did the breach occur
- if a situation was breached, the interval between the situation being imposed and the breach
- the interval for the reason that breach
- some other circumstances, such because the affect of a refusal on the person or their household dwelling within the UK
Instance
George entered the UK on a scholar visa legitimate till 1 October 2022. He didn’t make any utility to resume his go away. On 15 November 2022, he returned residence, paying for his personal ticket.
George has overstayed within the UK, and due to this fact meets the primary stage of the take a look at below paragraph 9.8.2. Nonetheless, if there are not any aggravating circumstances and, aside from the interval of overstay, George has at all times complied with the circumstances of his scholar go away, hasn’t damaged the regulation and many others, he won’t meet the second stage of the take a look at. If he makes a brand new utility to enter the UK as a Pupil, due to this fact, his utility shouldn’t be refused below paragraph 9.8.2 of the Immigration Guidelines, offered he applies as soon as the 12 month re-entry ban expires.
Instance
Nancy entered the UK unlawfully on 12 March 2018. She is an unlawful entrant and due to this fact meets the primary stage of the take a look at below paragraph 9.8.2 (below the House Workplace’s interpretation). Nancy by no means had legitimate go away whereas within the UK. On 5 Could 2018, she is caught by an immigration officer and given reporting restrictions; she must signal at Becket Home each different Thursday. Nancy by no means experiences at Becket Home. She then submits an utility for go away utilizing a false identification. This utility is refused and Nancy is given removing instructions on 1 September 2019. She ignores them and stays within the UK till 1 November 2020, when she decides to return residence.
It’s probably that any new utility for a visa that Nancy submits can be refused below paragraph 9.8.2 as a result of Nancy has breached immigration legal guidelines, and there are aggravating circumstances (failure to report; assumption of a special identification; non-compliance with removing instructions). Nancy’s household life within the UK ought to, nevertheless, be considered when making this refusal. It’s probably that solely a really sturdy household life (for instance, a British baby with a British father who lives within the UK) will imply that Nancy is allowed return to the UK.
Coping with refusals below paragraph 9.8.2
As soon as an individual has been refused below paragraph 9.8.2 it is going to be uncommon for officers to vary their thoughts on the idea of a brand new utility. A refusal is more likely to stand for a protracted interval, and probably endlessly.
The place an utility is refused on this foundation, it is going to be essential to convey a authorized problem. The place the particular person refused entry is a member of the family, there’ll normally be a proper of attraction to the immigration tribunal on human rights grounds. In different instances the place there is no such thing as a proper of attraction, an utility for Judicial Evaluate can be needed. Following the change to the rule, we now have seen extra candidates achieve appeals than earlier than, significantly the place there’s sturdy household life.
Useful instances
There are a small variety of instances which may assist candidates refused below paragraph 320(11) on the grounds of contriving to frustrate the intentions of the foundations. That is the earlier model of the rule however as it’s functionally equivalent to the present model, they may nonetheless be related.
JC (Half 9 HC395) – burden of proof) China [2007] UKAIT 27
This case dominated that
In relation to all the common grounds the burden of proof is on the decision-maker […] to ascertain the info relied upon” (paragraph 10)
The entry clearance officer, due to this fact, will bear the burden of proof to indicate that an applicant must be refused, reasonably than an applicant needing to show that she or he shouldn’t be refused.
What this implies in observe is that an applicant doesn’t have any constructive obligation to reveal issues which might prejudice his or her case, offered she or he by no means deceives (or they may very well be topic to a ten-year entry ban). Until the appliance kind particularly asks for it, due to this fact, an applicant wouldn’t must disclose, for instance, that they beforehand entered right into a sham marriage.
PS (paragraph 320(11) discretion: care wanted) India [2010] UKUT 440 (IAC)
On this case, the decide stated:
In exercising discretion below paragraph 320(11) […], the choice maker should train nice care in assessing the irritating circumstances stated to justify refusal and will need to have regard to the general public curiosity in encouraging these unlawfully in the UK to depart and search to regularise their standing by an utility for entry clearance. (my emphasis)
Within the tribunal’s conclusions Kenneth Parker J elaborated:
The Entry Clearance Officer, in making the choice of refusal, refers nowhere to the steering below paragraph 320(11). It’s due to this fact wholly unclear whether or not the Entry Clearance Officer has addressed his thoughts to the related query, specifically whether or not within the circumstances of this case Mr S’s breach of UK immigration regulation was sufficiently aggravating in order to justify the refusal. It appears to us that the Entry Clearance Officer ought to have particularly recognised that Mr S had voluntarily left the UK greater than 12 months in the past with a view to regularising his immigration standing. […] If the irritating circumstances should not actually aggravating there’s on this context a severe danger that these within the place of Mr S will merely proceed to stay in the UK unlawfully and won’t search to regularise their standing as he has sought to do. The impact then is more likely to be counter-productive to the overall functions of the related guidelines and to the upkeep of a coherent system of immigration. (my emphasis)
It additional states that
Mr S had made a declare below Article 8 which, standing alone, could not have been very sturdy. Nonetheless the household circumstances wanted to be evaluated fastidiously within the balancing train to which we now have referred.
This case is useful in that it confirms that
- When deciding of an utility, the entry clearance officer ought to look favourably at the truth that an applicant determined to depart the UK and submit a brand new utility to regularise their standing.
- Household circumstances must be taken into consideration when deciding an utility.
ZH (Bangladesh) v SSHD [2009] EWCA Civ 8
On this case, the Courtroom of Attraction noticed that unlawful working was half and parcel of unlawful residence and didn’t exclude success below a rule designed to regularise some such individuals. Presumably, one might apply this case to argue that unlawful working shouldn’t be thought of an aggravating circumstance, however merely goes to indicate that stage 1 of the take a look at is met.
The steering means that entry clearance officers would agree with this argument, because it specifies that an aggravated circumstances for unlawful work is when it’s “in breach [of] customer circumstances” and “inside brief time of arrival within the UK (indicating a deliberate intention to work)”. Had it needed to catch all cases of illegal work, the steering would merely have stated “earlier unlawful work”.
Instance
Luis was an overstayer within the UK between January 2018 and January 2020. In January 2019, he meets Paul, a British citizen, they usually enter in a relationship. They get engaged in December 2019.
Having taken authorized recommendation, in January 2020, Luis decides that he’ll return residence and apply for a visa to enter the UK as Paul’s fiancé.
Whereas within the UK as an overstayer, Luis had entry to housing advantages, regardless of not being entitled to them. Luis labored always within the UK.
Firstly, it’s potential that the entry clearance officer won’t know of the irritating circumstances on this case, particularly the truth that Luis accessed advantages. Until requested within the utility kind, Luis has no obligation to reveal that he obtained advantages and labored within the UK.
As well as, when submitting the appliance on behalf of Luis, his authorized representatives could wish to take into account making the next representations for why his utility shouldn’t be refused below paragraph 9.8.2:
– Luis must be given credit score for having determined to regularise his standing by leaving the UK and making use of for entry clearance.
– The disruption of Luis’ household life with Paul must be considered by the entry clearance officer when deciding of the appliance.
– Luis’ work alone shouldn’t be handled as an aggravating circumstance on this utility.
This text was initially printed in March 2017 and has been up to date by Alex Piletska in order that it’s appropriate as of the brand new date of publication proven.
