Briefings & Newsletters
Rigid new rules for individuals who have previously breached UK immigration law
Date: 16th April 2008
Categories: Immigration
From 1 April 2008, strict new laws mean that those who have committed immigration breaches will automatically be refused visas if they seek permission to come back to the UK in the future.
The new Immigration Rules require entry clearance officers to refuse to issue visas to non EU nationals who have previously:
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overstayed their leave in the UK,
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breached their conditions of leave -eg by working without permission,
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entered the country illegally, or
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used deception (including lying, using a false document or withholding information) in an application for a visa or leave to enter or remain.
Where previously visa officers had a discretion to disregard minor previous breaches and re-entry bans were only applied to people who had been deported, the new penalty for these previous breaches is now an automatic refusal of any visa or leave to enter or remain application and a time limited re-entry ban. Such individuals who voluntarily leave/left the UK and pay/paid the cost of the return journey will be banned from returning for one year, those who leave/left voluntarily but did not pay for their return journey will face a five year reentry ban, and those who are/have been 'removed' or deported will be banned from returning for ten years. Those who had overstayed their leave to remain but who left within 28 days of the expiry of their leave will be excluded from the new penalties.
Major protests were mounted about these draconian new rules and the lack of consultation. These were led by the Immigration Law Practitioners Association (ILPA), the TUC and others. Jonathan Kingham, an immigration solicitor at Kingsley Napley, was involved in this campaign. As a result, the government recently announced a concession allowing individuals who were present in the UK on 17 March 2008 to leave the UK by 1 October 2008 and apply for a visa to return without facing an automatic re-entry ban. However, this concession is quite limited in scope and will largely apply to those currently in the UK who have overstayed their leave.
In a response to a further letter from ILPA requesting various clarifications as to the nature of the concession, the Minister for Immigration has now confirmed that the automatic refusal and re-entry bans will not apply where an individual had previously breached immigration law but has subsequently been granted leave to remain.
The new rules may have major implications in particular for those who are refused entry on arrival in the UK. When these individuals are turned back by UK immigration at a UK airport they are effectively "removed". One of the common grounds for refusing entry is for those coming a business visitors. They are allowed to attend meetings and undertake specific tasks. However, in some circumstances the activities they undertake may go beyond what is permitted by the business visit rules. These individuals may be refused entry, removed and be advised to apply for a work permit and the relevant visa. It is therefore important for individuals who intend to come to the UK for business purposes to be very clear about what activities are permitted in the UK and when a work permit may be required. If they are not normally required to obtain a visa to come here as a visitor and are refused entry at the airport/port as the Immigration Officer believes that they have not been honest about what they intend to do in the UK, this dishonesty may be viewed as 'deception', and if so they will be barred from applying for a visa or entering the UK for at least one year, and potentially ten years.
In addition to the above concerns, the consequences of breaching the conditions of leave to remain now have a much more serious implication. In particular, students who have worked more than the permitted 20 hours per week in term time or individuals with a work permit who wish to change job and commence employment with a new employer prior to the approval of a new work permit application may find that their future visa applications are automatically refused.
For individuals who have previously committed any of the above breaches, however minor they may seem, and wish to apply for a UK visa or in-country extension of leave application, we would recommend that you seek professional advice before doing so.