Wednesday, 20 February 2008

Immigration rules changes

Amidst all the hoo-hah about citizenship rules (largely trailed, as pointed out here) serious changes to immigration rules have been slipped under parliamentarians' radar.

I am grateful to Liberal Democrat activist Mark Ynys-Môn for the following. It is a long message, but for a non-lawyer to attempt to summarise it would be a risky business. However, please read the last paragraph even if you skip the rest:

General grounds for refusal - changes in the immigration rules HC321

On 6 February 2008 the government published the latest statement of changes in the immigration rules. As expected the rules establish the new regime under which Tier one – the highly skilled tier of the points based system - will be implemented. The regime commences on 29 February 2008, when any highly skilled foreign national who is currently working in the United Kingdom will have to apply under the new rules for an extension of their stay. From 1 April 2008 highly skilled people in India wishing to
enter the UK in that category will have to apply to enter the UK under the provisions of the new rules. By the summer the rules will apply to all highly skilled applicants for entry anywhere in the world.

What were not expected are the changes to the “General grounds for refusal” section of the immigration rules. These new provisions will affect anyone making any application for entry clearance and anyone applying for extensions or variations of leave to remain in the UK from 29 February 2008. The new rules also affect people entering the UK in possession of entry clearance from 29 February 2008. From 1 April 2008 penalties, in the form of the mandatory refusal of their applications, will be imposed on anyone who has either:
• previously overstayed their leave to remain in the UK,
• entered the UK illegally on a previous occasion,
• used deception in any immigration application less than 10 years ago, or
• not kept to the conditions of his or her permission to stay in the UK when here previously

The penalties are severe, particularly in cases where deception is involved. Any application from people refused entry clearance after having used deception in their applications will be refused outright. This will go on for 10 years. People who have overstayed their leave to remain for more than 28 days will have all future applications for entry clearance refused outright for one year, provided they left the UK at their own expense after this time. But if they left voluntarily but at
public expense their applications will be refused for a period of 5 years. If they were removed or deported from the UK they will have all applications refused for 10 years.

These effects are achieved by the new rules 320(7A) and 320(7B) These sub rules (along with the other sub rules of rule 320) are listed under the heading “Grounds on which entry clearance or leave to enter the United Kingdom is to be refused”. They state:
“(7A) where false representations have been made or false documents have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application.”
and
“7B. where the applicant has previously breached the UK’s immigration laws 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 (whether successful or not), unless the applicant:
(i) Overstayed for 28 days or less and 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 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 5 years ago, or
(v) was removed or deported from the UK more than 10 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.”

The word “Deception” is defined in a new rule 6A. The definition is as follows:

““Deception” means making false representations or submitting false documents (whether or not material to the application), or failing to disclose material facts.”

Rule 320 (7A) comes into force on 29 February 2008. So from that date any application for entry clearance which has been supported by false documents or in which false representations have been made, even if the applicant did not know that the documents were false or that the representations were not true, and even if they were not material to the application he or she made, will be refused. This is a major development in the rules. Prior to this statement of changes the only comparable
immigration rules were in respect of the submission of a false document (rule 320 (21) – and this said nothing about making false representations) Most importantly this rule fell under the heading of “grounds on which entry clearance or leave to enter will normally be refused”.

Now the refusal is mandatory. The exercise of discretion by entry clearance officers has been removed. Of course this has a further effect upon the jurisdiction of Immigration Judges when considering appeals against the refusal of entry clearance. At the moment judges are required to consider whether the discretion of an entry clearance officer should have been exercised differently from how it was exercised in any decision to refuse entry clearance, and to allow appeals if the discretion was
wrongly exercised. From 29 February this jurisdiction will go, because refusals under 320 (7A) are mandatory.

Rule 320 (7B) makes applicants liable for their past breaches of immigration control by imposing the penalties referred to above. That rule will not be implemented until 1 April 2008.

The changes also affect people already in the UK who have come to the UK having obtained an entry clearance in those specific circumstances where that entry clearance does not operate as leave to enter the UK. (These categories of entry clearance are those endorsed on refugees’ Convention travel documents on or after 27 February 2004, certificates of entitlement, EEA family permits, exempt visas and direct airside transit visas). In this scenario the immigration officer can (he or she doesn’t have to), from 29 February 2008, refuse leave to enter where he or she is
satisfied that false documents were submitted or material facts were not disclosed or false representations were made “in relation to the application for entry clearance”. This is the effect of the new rule 321 (i). The previous rule enabled immigration officers to refuse leave to enter in similar circumstances, but the false representations had to have been made for the purpose of obtaining the entry clearance and there was no mention of false documents.

There is also a new rule 321A (2), which will from 29 February 2008 require immigration officers to cancel entry clearance which does operate as leave to enter the UK. The heading of this section of the rules, and which remains unaltered by the statement of changes, is “Grounds on which leave to enter or remain which is in force is to be cancelled at port or while the holder is outside the United Kingdom.

The current rule 321A (2) makes cancellation of leave to enter mandatory where:

“the leave was obtained as a result of false information given by that person or by that person's failure to disclose material facts;”

This is to be replaced by:

“false representations were made or false documents were submitted (whether or not material to the application, and whether or not to the holder’s knowledge), or material facts were not disclosed, in relation to the application for leave;”

So as in the new rule 321 (i) the inclusion of false documents in an application for entry clearance which operates as leave to enter or the fact that false representations were made or that material facts were not disclosed, regardless of whether or not the person with the entry clearance knew that such things had been done or of whether they had any effect on the grant of the entry clearance, will now result in the cancellation of leave to enter.

Also from 29 February 2008 similar provisions will apply to people who are applying either to extend or otherwise to vary their leave to remain in the UK. The heading of what is now the only sub rule (rule 322 (1) – which is “the fact that variation of leave to enter or remain is being sought for a purpose not covered by these rules”) which makes refusal of these applications mandatory is currently:
“Grounds on which an application to vary leave to enter or remain in the
United Kingdom is to be refused”
This will be changed to:
“Grounds on which leave to remain in the United Kingdom is to be refused”
It’s difficult to see what the difference in the heading is meant to achieve. However there is then inserted rule 322 (1A) which provides:
“where false representations have been made or false documents have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application.”
So someone whose application for an extension of stay contains, in his or her ignorance, false documents or false representations or from which material facts have been left out – whether or not they make any difference to the application will have their application refused.
The effect of these changes is yet to be seen, but the intention is clear from the explanatory notes which accompany the statement of changes. Paragraph 7.22 of these notes says:
“The first amendment, which will come into force on 29 February 2008, provides that any application in which deception is used should automatically be refused.
The immigration rules for Highly Skilled Migrants already stated that any application in which forged documents were submitted should automatically be refused (unless the
applicant could prove that he or she did not know that they were forged). Because of the importance of ensuring that immigration applicants tell the truth, we are extending this to all applications, and to all forms of deception (not just the submission of forged documents).”

The removal of discretion from entry clearance officers considering applications for entry clearance is explained in paragraph 7.24 of the notes. This states:

“The previous immigration rules on this subject did not cover all the above breaches. They also gave a great deal of discretion to caseworkers, with the potential for nconsistent decision-making. The new immigration rules replace this by setting out a clear period during which a previous immigration offender will have any future applications to come here refused.”

Since this is a statement of changes in the immigration rules, and not a statute, it is not “primary legislation”. Therefore there did not have to be a statement from the Secretary of State to the effect that she was satisfied that the changes complied with the UK’s obligations under the European Convention on Human Rights. Some people might say that that was fortunate for the Secretary of State, since it is difficult to see how the consequences of these new rules will not include the separation of, for example, parents from their children for many years – as well keeping out people likely to make a valuable contribution to the UK’s economy. These will be the results of people making innocent mistakes which did not advantage their applications at all.

1 comment:

Frank H Little said...

Liberal Democrat Home Affairs spokesperson, Tom Brake issued this statement about Jacqui Smith's announcement:

“Today’s Green Paper is an admission by the Government that its chronic mismanagement of the immigration system has shattered public confidence and left public services in some parts of the country severely overstretched.

“Their solution appears to be to heap further charges on working migrants, who already fund public services like everyone else through the taxes they pay.

“What kind of first step to citizenship is it to ask new people to pay more for public services in a country where we’re all allegedly equal?”