What you need to know about the varying levels of mandatory re-entry bans

People seeking to come to the UK may be refused entry because they are the subject of a one year, 2 year, 5 year or 10 year re-entry ban.

 

People may be the subject of a re-entry ban where they have previously breached the UK’s immigration laws by:

 

  • overstaying

  • breaching a condition attached to their leave

  • being an illegal entrant,

  • using deception in an application for entry clearance, leave to enter or remain (whether successful or not)

(1)The relevant Law and Policy:

 

The relevant applicable policy guidance is Re-entry bans. The guidance is based on paragraphs A320 and 320(7B) of the Immigration Rules which set out the general grounds on which entry clearance or leave to enter the UK is to be refused.

 

Paragraph A320 of the Immigration Rules states:

“A320. Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM, and Part 9 (except for paragraph 322(1)) does not apply to an application for leave to remain on the grounds of private life under paragraphs 276ADE-276DH”. 

 

Paragraph 329(7B) of the Rules provides:

“Grounds on which entry clearance or leave to enter the United Kingdom is to be refused

…………….

(7B) where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach)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, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);

unless the applicant:

(i) overstayed for-

(a) 90 days or less, where the overstaying began before 6 April 2017: or

(b) 30 days or less, where the overstaying began on or after 6 April 2017

and in either case, left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;

(ii) used Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application more than 10 years ago;

(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;

(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of liability for removal, or no more than 6 months after the date on which the person no longer had a pending appeal or administrative review; whichever is the later;

(v) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago;

(vi) was removed or deported from the UK more than 10 years ago or;

(vii) left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 more than 5 years ago.

Where more than one breach of the UK’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph”.

 

Paragraph 320(7BB) provides:

 

“320(7BB) for the purposes of calculating the period of overstaying in paragraph 320(7B)(i), the following will be disregarded:

(a) overstaying of up to 28 days, where, prior to 24 November 2016, an application for leave to remain was made during that time, together with any period of overstaying pending the determination of that application and any related appeal or administrative review;

(b) overstaying in relation to which paragraph 39E of the Immigration Rules (concerning out of time applications made on or after 24 November 2016) applied, together with any period of overstaying pending the determination of such application or any related appeal or administrative review;

(c) overstaying arising from a decision of the Secretary of State which is subsequently withdrawn, quashed, or which the Court or Tribunal has required the Secretary of State to reconsider in whole or in part, unless the challenge to the decision was brought more than three months from the date of the decision”.

 

(2)Mandatory or discretionary grounds for refusal

 

The Immigration Rules have 2 types of refusal on general grounds. It will depend on the grounds the Entry Clearance Officer is using to refuse as to how they consider the application. If it is a mandatory ground for refusal the Officer must refuse the application. If it is a discretionary ground for refusal then the Officer can consider whether the circumstances allow them to use their discretion.

 

  • mandatory refusals are in paragraphs 320(1) to 320(7D) of the Immigration Rules

  • discretionary refusals are in paragraphs 320(8) to 320(23) of the Immigration Rules

 

(3)When does Rule 320(7B) not apply?

 

Entry Officers cannot refuse an applicant who is a non-EEA family member under paragraph 320(7A) or 320(7B) if they are applying for entry clearance under the Immigration EEA Regulations 2016. This is because such applications are not covered by the Immigration Rules.

Paragraph A320 states an applicant cannot be refused under paragraph 320(7B) if they apply for entry clearance, leave to enter and/or remain as a family member under Appendix FM.

Paragraph B320 states an applicant cannot be refused under paragraph 320(7B) if they apply for entry clearance, leave to enter and/or remain under appendix armed forces.

Paragraph 320(7B) also states it only applies where the applicant was aged 18 or over at the time of their most recent breach of the UK’s immigration laws.

In addition, Officers must not refuse entry clearance applicants under paragraph 320(7B) if:

 

  • they used false documents or made false representations in a previous visa or leave to enter or remain application, but the applicant was not aware that the documents or representations were false – this only applies if the applicant can prove they were unaware of the deception

  • the period specified for automatically refusing applications has come to an end

  • after a person has breached UK immigration laws, the Home Office have given a visa or leave to enter or remain in the knowledge of that breach – for example, a student who has overstayed but was granted leave to enter following an out of time application

 

Concessions outside the Immigration Rules:

 

Caseworkers must not refuse an applicant under paragraph 320(7B) if the applicant:

 

  • has been accepted by the Home Office as a victim of trafficking

  • was in the UK illegally on or after 17 March 2008 and left the UK voluntarily before 1 October 2008

Victims of trafficking

Entry clearance officers are not likely to see many cases where victims of trafficking apply for entry clearance. If an applicant states that the Home Office has accepted them as a victim of trafficking, the Officer must contact the evidence and enquiries section using the Home Office Referrals process to check the information.

17 March 2008 concession

This concession only applies to voluntary departures, whether or not at public expense. It does not apply when the person was removed or deported from the UK. If an applicant has previously been issued with a notice identifying him as an immigration offender (form IS151A) or a decision has been made to remove him (form IS141A part 2 or IS151B), the applicant may still have left the UK voluntarily. The Officer must be satisfied that the immigration offender was actually removed before they decide that the concession does not apply.

Students refused leave to remain after 1 September 2007:

The Officer must not refuse an applicant under paragraph 320(7B) for overstaying in the UK if they were refused leave to remain as a student solely on the basis that they had made an out of time application.

Paragraph 320(11):

If an applicant has previously breached the immigration laws but is applying in a category which is exempt from paragraph 320(7B), they must consider whether it is appropriate to refuse the application under paragraph 320(11).

*Guidance reference to the above: General grounds for refusal: considering entry clearance

 

 

(4)Mandatory one year re-entry ban – voluntary departure at person’s own expense:

 

Unless they are applying for entry clearance as a family member (under Appendix FM of the Immigration Rules), or they were under 18 at the time of their most recent breach (as set out at paragraphs A320 and 320(7B) of the Immigration Rules), the following categories of offender will ordinarily be subject to a mandatory one year re-entry ban if they leave the UK voluntarily at their own expense:

 

  • illegal entrants

  • those who breach a condition attached to their leave

  • those who overstay their lawful leave by more than: -90 days, excluding any exceptional periods, where the overstaying began up to and including the 5 April 2017. – 30 days, excluding any exceptional periods, where the overstaying began on or after 6 April 2017

Overstaying period: exceptions

Where the Home Office Caseworkers are calculating a period of overstaying they must disregard the following:

 

  • overstaying of up to 28 days, where, prior to 24 November 2016, an application for leave to remain was made during that time, together with any period of overstaying pending the determination of that application and any related appeal or administrative review

  • overstaying in relation to which paragraph 39E of the Immigration Rules (concerning out of time applications made on or after 24 November 2016) applied, together with any period of overstaying pending the determination of any related appeal or administrative review

  • overstaying arising from a decision of the Secretary of State which is subsequently withdrawn, quashed, or which the Court or Tribunal has required the Secretary of State to reconsider in whole or in part, unless the challenge to the decision was brought more than three months from the date of the decision

 

(5)Voluntary departure at the Secretary of State’s expense:

 

People who breach UK immigration laws and leave the UK voluntarily at the expense (directly or indirectly) of the Secretary of State are subject to 2 year or 5 year re-entry bans. This includes those who leave the UK through an assisted voluntary return (AVR) programme at the Secretary of State’s expense, or otherwise voluntarily.

 

Not all people who leave the UK voluntarily at the Secretary of State’s expense will necessarily depart through an AVR programme. Some may express a desire to leave the UK, but departure through an AVR programme is not pursued because either:

 

  • they do not wish to return by this route

  • they are not eligible to return by this route

  • their application has been rejected or excluded

Those who leave the UK voluntarily, but their flight ticket is purchased by the Secretary of State (self check-in removals for example) are also recorded as voluntary departures at Secretary of State’s expense.

 

(6)Two year re-entry bans- leaving the UK voluntarily at the Secretary of State’s expense:

 

Where paragraph 320(7B) of the Immigration Rules applies, people who leave the UK voluntarily at the Secretary of State’s expense are subject to a mandatory 2 year re-entry ban if the date of their departure was no more than 6 months after the date on which they either:

 

  • were given notice of their removal decision

  • no longer had a pending appeal against that decision (appeal rights exhausted)

whichever is the later.

Resetting the 6 month time period

 

In some cases, the 6 month time window in which a person must depart to benefit from a 2 year re-entry ban, rather than a 5 year re-entry 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 removal decision where a fault is found with the original decision

  • person was appeal rights exhausted (ARE), but then lodged an out-of-time notice of appeal with the First-tier Tribunal seeking an extension of that time limit and the First-tier Tribunal extended the time limit:the 6 month clock starts on the date the person was given notice of their removal decision or the date on which the subsequent out-of-time appeal was eventually dismissed, whichever is the later

  • person made further submissions to the Secretary of State which following consideration under paragraph 353 of the Immigration Rules, are refused but found to constitute a fresh claim: the 6 month clock restarts on the date the person is given notice of their new removal decision (which accompanies the refusal of their fresh claim) or the date on which they exhaust their appeal rights against that decision, whichever is the later

  • person made further submissions to the Secretary of State which were only determined more than 12 months after their submission: the 6 month time limit restarts from the point where the further submissions are determined and found not to constitute a fresh claim

 

(7)Five year re-entry bans – leaving the UK voluntarily at the Secretary of State’s expense:

 

Where paragraph 320(7B) of the Immigration Rules applies, and where the lesser 2 year ban does not apply, people who leave the UK voluntarily at the Secretary of State’s expense (directly or indirectly) are subject to a mandatory 5 year re-entry ban if the date of their departure was more than 6 months after the date on which they either:

 

  • were given notice of their removal decision

  • no longer had a pending appeal against that decision (appeal rights exhausted)

whichever is the later.

 

 

(8)10year re entry ban-enforced or forcible removal from the UK :

 

Where paragraph 320(7B) of the Immigration Rules applies, and the person was forcibly removed from the UK, they are subject to a mandatory 10 year re-entry ban. For the purposes of this re-entry ban, an enforced removal is one where the person refuses to leave the UK voluntarily and the Home Office enforces their departure in order to ensure they leave. Enforcement includes the use of detention powers immediately before departure from the UK if applicable.

 

(9)Exclusion from the UK – removal as the subject of a deportation order:

 

People removed as the subject of a deportation order will continue to be excluded whilst the order is extant. The criteria for the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules.

 

 

(10)Re entry bans- criminal history, character, conduct or associations:

 

A person can be refused entry clearance or leave to enter or remain in the UK where they have a criminal history.

 

Changes to the general grounds for refusal under part 9 of the Immigration Rules came into effect on 13 December 2012. The changes provide for mandatory or discretionary refusal of entry clearance and leave to enter or remain where the applicant has a criminal history or due to their character, conduct or associations.

 

The length of time for which refusal will remain appropriate will depend on the date and length of sentence imposed, and the person’s character, conduct or associations.

 

(11)Summary: How long are applicants automatically refused/banned for?

 

If an applicant falls to be refused under 320(7B), applications must be refused for the following periods:

 

  • 12 months if they left the UK voluntarily, not at the expense (directly or indirectly) of the secretary of state;

  • 2 years if they left the UK voluntarily, at the expense (directly or indirectly) of the secretary of state, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of the removal decision, or no more than 6 months after the date on which the person no longer had a pending appeal; whichever is the later

  • 5 years if they left UK voluntarily, at public expense;

  • 5 years if they were removed from the UK as a condition of a caution issued in accordance with s.134 legal aid, sentencing and punishment of offenders act 2012

  • 10 years if they were removed or deported from the UK;

  • 10 years if they practiced deception (which includes using false documentation) in support of a previous visa application.

Where an applicant has overstayed, breached a condition of leave, was an illegal entrant, accepted a conditional caution or used deception in a leave to remain application, the automatic refusal period/ban period is dated from the date the applicant left the UK.

Where an applicant has used deception in a visa application, the automatic refusal period is dated from the date (in which deception was used) was refused.

Where more than one breach of the UK’s immigration laws has occurred, only the breach which leads to the longest automatic refusal period from the UK will be taken into account.

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