Part 9 of the Immigration Rules
On 1 December 2020, the Immigration Rules were amended to introduce what are described as a "more robust and consistent framework" against which immigration applications are assessed or permission cancelled on suitability grounds.
The general grounds of refusal were solely introduced, in my view, to penalise applicants who have previously failed to comply with the Immigration Rules. The grounds are outlined in Part 9 of the Rules. It is important to understand how these provisions are applied in conjunction with the suitability grounds in various immigration application categories. There are also timed banning features to Part 9 which will not be covered here but are outlined in Paragraph 9.8.7 of the Immigration Rules.
Use of the general and suitability grounds
I have recently encountered spouse applications where the applicants were abroad and applying for entry clearance following breaches of the Immigration Rules.
All the applicants arrived in the UK clandestinely, claimed asylum or made other applications which were refused. Rather than leaving the UK, they remained here without leave to remain, often working without permission. During their unlawful residence, they met partners who were settled in the UK and formed genuine relationships. They received permission to marry from the Home Office which they did. The Home Office was fully aware of their immigration statuses or lack thereof. Their legal representatives advised them to leave the UK and make entry clearance applications.
These applicants believed that their voluntary departure and subsequent compliance with the Immigration Rules (which they had not done before) would result in a painless application process.
Unfortunately, their entry clearance applications were refused. Their decision letters went something like this: "you arrived in the UK unlawfully and you remained in the UK without leave to remain. You have therefore previously breached immigration laws and previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding".
Previous breaches can attract the application of the mandatory or discretionary grounds. Paragraph 9.8.1 provides that:
"9.8.1. An application for entry clearance or permission to enter must be refused if:
(a) the applicant has previously breached immigration laws; and
(b) the application is for entry clearance or permission to enter, and it was made within the relevant time period in paragraph 9.8.7".
In Paragraph 9.8.2 it is stated that:
"9.8.2. An application for entry clearance or permission to enter may be refused where:
(a) the applicant has previously breached immigration laws; and
(b) the application was made outside the relevant time period in paragraph 9.8.7; and
(c) the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding".
When advising an applicant who may fall foul of the general grounds, it is important to check whether a ban applies and if so whether that time period has expired. There is no point advising an applicant to return to their country of origin only to make a premature application which is guaranteed to be refused.
In an application under Appendix FM, the following is required:
"EC-P.1.1. The requirements to be met for entry clearance as a partner are that-
(a) the applicant must be outside the UK.
(b) the applicant must have made a valid application for entry clearance as a partner;
(c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability-entry clearance; and
(d) the applicant must meet all of the requirements of Section E-ECP: Eligibility for entry clearance as a partner."
And in Paragraph S-EC.1.1.
"The applicant will be refused entry clearance on grounds of suitability if any of Paragraph's S-EC.1.2. to 1.9. apply.
S-EC.1.5. The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant's conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance."
Approach following refusal
The burden of proof rests on the decision maker to establish any precedent facts [JC (Part 9 HC395 - burden of proof) China [2007] UKAIT 00027]. Often the Home Office will refuse the application on suitability grounds (mandatory) due to a reliance on the discretionary grounds for refusal. A judge will usually consider the discretionary grounds first. If established, the chances are grim, and the suitability grounds require the application to be refused.
In PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC), Mr Justice Kenneth Parker and Upper Tribunal Judge Spencer concluded that:
"Headnote:
In exercising discretion under paragraph 320(11) of HC 395, as amended, to refuse an application for entry clearance in a case where the automatic prohibition on the grant of entry clearance in paragraph 320(7B) is disapplied by paragraph 320(7C), the decision maker must exercise great care in assessing the aggravating circumstances said to justify refusal and must have regard to the public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance".
Although the Rules examined in PS have been amended, they are arguably similar in intent, and the principles therein can be applied. To penalise an applicant who has left the UK to "do the right thing" could be viewed as counterproductive.
In any application where general grounds may arise, the following may be relevant and useful;
- The circumstances of the applicant's illegal entry (such as arriving when s/he was a minor, a victim of trafficking, any mental health difficulties, travelling to the UK to apply for asylum). A detailed witness statement or letter would assist.
- The nature of the breaches, the length of time since those breaches, why immigration status was not regularised).
- Being granted permission to marry.
- Voluntary departure at the applicant's expense.
- Not going to ground or attempting to avoid Immigration officials.
The decision maker is required not only to show that there were breaches, but that the applicant contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances in the case. If the decision maker cannot justify why the very punitive rule is being applied, then the burden has not been discharged and the ground(s) should fall away.
In essence, the Home Office should not apply purely punitive measures particularly where the applicant has demonstrated that they have chosen compliance over disobedience.