UK Visa Refusal on General Grounds: Previous Breach of UK Immigration Rules

UK Visa Refusal General Grounds - Previous Breach of UK Immigration Rules

General Grounds for Refusal Previous Breach of UK Immigration Rules

This post explains consideration when an applicant applying for entry clearance has previously breached UK immigration laws.

This relates to general grounds for refusal under paragraph 320(7B) of the rules. For visitors, refusal under paragraphs V 3.7-11 of Appendix V.

The 13 December 2012 rules changes on criminality thresholds changed the refusal paragraphs.

When an applicant has breached UK immigration laws in one or more of the following ways (and was 18 or over at the time of their most recent breach) and is applying for entry clearance within the periods set out below, the application must be refused under paragraph 320(7B):

• overstayed (unless they overstayed for 90 days or less and left the UK voluntarily and not at public expense)
• breached a condition attached to their leave
• been an illegal entrant
• used deception in an application for entry clearance or leave to enter or remain, or to obtain documents from the Secretary of State or a third party required in support of the application (whether the application was successful or not)

When one or more of the above conditions are met, entry clearance must be refused if the applicants apply within the following periods (when the relevant breach took place in the UK, the start date for calculating the ban period is the date the applicant left the UK):

• one year if they left the UK voluntarily (not at public expense) – where they were refused at port, they must have followed all conditions imposed by the port (such as temporary admission conditions) and then been removed at the carrier’s expense, to qualify for only a one year ban
• 2 years if they left the UK voluntarily, at public expense, no more than 6 months after the date on which they were given notice of their removal decision, or no more than 6 months after the date on which they exhausted their appeal rights against that decision, whichever is the later
• 5 years if they left the UK voluntarily, at public expense
• ten years if they were removed from the UK at public expense
• 10 years if they used deception (which includes using false documentation) in support of a previous application for entry clearance
• 5 years if they left or were removed from the UK as a condition of a caution issued in line with section 22 of the Criminal Justice Act 2003

When the applicant has breached more than one of the UK’s immigration laws, the that breach which leads to the longest period of absence from the UK needs to be taken into account.

Before the application is refused under paragraph 320(7B), it must be checked if the applicants are applying in a category which is free from this rule under paragraph A320, B320 or 320(7B).

It needs to be satisfied that deception has been used and/or the applicant intended to deceive about a previous breach. This will mainly relate to how the applicant has completed the questions about previous visa refusals or the grant or refusal of leave to remain (LTR) on the visa application form (VAF)

When the applicant left the UK voluntarily at public expense, it must be found out whether a 2 year or 5 year mandatory re-entry ban applies depending on whether or not they left more than 6 months after their removal decision or more than 6 months after they exhausted their subsequent appeal rights.
In some circumstances, the 6 month time frame in which a person must depart to benefit from a 2 year ban, rather than a 5 year ban, may be re-set to start again. The 6 month clock will have been re-set where:

• the removal decision was substituted for a new decision where a fault was found with the original decision
• the applicant was appeal rights exhausted, but then lodged an out-of-time notice of appeal with the Tribunal seeking an extension of that time limit and the Tribunal extended the time limit – in these circumstances, the applicant will be subject to a 2 year re-entry ban where they left the UK voluntarily at public expense no more than 6 months after the date on which their subsequent out-of time appeal was eventually dismissed
• the applicant made further submissions to the Secretary of State which, following consideration under paragraph 353 of the Immigration Rules, were refused but were found to constitute a fresh claim – in these circumstances, the applicant will be subject to a 2 year re-entry ban where they left the UK voluntarily at public expense no more than 6 months after the date of their latest removal decision or no more than 6 months after the date on which they no longer had a pending appeal against that decision, whichever is the later
• the applicant made further submissions to the Secretary of State which were only determined more than 12 months after their submission – in these circumstances, the applicant will be subject to a 2 year re-entry ban where they left the UK voluntarily at public expense no more than 6 months after the date on which the further submissions were determined and found not to constitute a fresh claim

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