In an interesting example of the self defeating nature of the UK’s immigration rules, failure to follow Home Office policy and failure of basic common sense, the renowned Chinese artist Mr Ai Wei Wei has been refused a visit visa by a senior British immigration official. He has been granted entry outside the rules, but entry has been restricted to just 20 days compared to the normal 6 months that is granted to most visitors. The Guardian is reporting the story and has a full copy of the letter received by Mr Weiwei.

Mr Ai Weiwei is perhaps most famous in the UK as the artist behind the memorable Sunflower Seeds installation at Tate Modern. He has a huge body of work behind him. Born to a dissident family he spent part of his childhood in a labour camp then lived in the United States for 10 years until returning to China when his father was ill. He has, bravely, continued to be critical of the Chinese government’s record and policies and was severely beaten by the police on one occasion.

Wikipedia tells us that in 2010 Ai Weiwei was placed under house arrest in connection with the construction of a new studio, which was later demolished. No criminal charges or conviction are mentioned. He was arrested and detained in 2011 as he attempted to leave China and vague “economic crimes” were mentioned by the Chinese authorities. He began to be referred to in state media as “a deviant and a plagarist”. Even in China that doesn’t seem to be a specific criminal offence. The rhetoric escalated and he was accused of tax evasion. He was placed under house arrest but eventually released after three months. He was fined, it seems. There has never been a trial or conviction as far as it is possible to see.

That has not stopped the Beijing Entry Clearance Manager from refusing to grant a visit visa on the basis that Ai Weiwei failed to declare a conviction that is said to be “a matter of public record”, however. The specific alleged conviction is not identified by the British official, rather unhelpfully.

On the face of it, this looks like a plain mistake by the Entry Clearance Manager. The rules on visit visas are now set out in Appendix V of the Immigration Rules. There are various grounds for refusal of visas on “suitability” grounds in Appendix V, including:

An applicant will be refused where:
(a) false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge); or
(b) material facts have not been disclosed, in relation to their application or in order to obtain documents from the Secretary of State or a third party provided in support of their application.

The visa application form asks:

I have never had any of these:

• a criminal conviction, spent or unspent
• a driving offence, for example, for speeding or no insurance
• I was arrested or charged and may have to go to court
• a caution, warning, reprimand or fixed penalty notice

The letter specifically refers to a conviction and there has been none. It might conceivably be said (although it has not been) that Mr Weiwei has been arrested and may have to go to court at some indeterminate point in the future. If so, Mr Weiwei would be refused entry and banned from entry for ten years.

Paragraph 3.6 of Appendix V states a visit visa application will be refused where:

(a)  false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge); or

(b)  material facts have not been disclosed

Paragraph 3.10 of Appendix V imposes a ten year ban from entry to the UK where an applicant “used deception in an application for entry clearance (including a visit visa).” Failure to declare previous convictions is normally considered to be deception. Strangely, though, Mr Weiwei was refused the 6 month visit visa he asked for but was allowed to enter outside the rules for a period of 20 days.

It is Home Office policy not to apply the entry ban where an innocent mistake is made and there is no deliberate deception, and there is also case law that can help in such cases. I am currently re-writing my post on such cases and will add in a link once I’ve finished. If so, the visit visa would normally be granted, though, because the rules would be considered met. That has not happened here.

There are other potential grounds for refusal as well, including character and associations, but these alternative grounds are not relied on, openly at least.

Home Office policy also includes exceptions. These may or may not have been applied in the case of Mr Weiwei. The relevant policy document on the general grounds for refusal is an unhelpful 150 pages long. Pages 20 to 22 set out exceptions that might apply. These are identified at the start of this passage as:

Exceptions will fall into one of the following three categories:
– failing to grant entry would be a breach of either the UK’s obligations under the European Convention on Human Rights (ECHR) or the Refugee Convention
– there are exceptional circumstances that mean entry must be granted despite the conviction
– an applicant’s conviction is for an offence not recognised in the UK

The policy goes on to describe possible exceptional circumstances:

• Since conviction, the passage of time or the personal circumstances of the person have significantly changed such that maintaining a refusal would be so perverse as to undermine confidence in the immigration system.
• There is reliable evidence to suggest the conviction was politically motivated.
• The person concerned intends to make a significant investment in the UK. For example, buying or heavily investing in a major company, so by refusing entry it would not be in the national interest.

Let us leave aside the morally repugnant issue of some foreign criminals literally being able to buy entry outside the rules. Either of the first two of these criteria could apply.

I am at a loss to understand what has happened to Mr Weiwei in legal terms. His application for a visit visa has been refused, presumably on the grounds of deception. This should not have occurred because in reality there was no deception or failing that there are exceptions that should obviously be applied. However, given that the visa was refused it would normally follow under the rules that Mr Weiwei would be banned from entry for a period of ten years. The letter he has received is silent on that, but instead he has been granted entry outside the rules.

In the absence of a legal explanation, politics rather than law seem to be behind both the refusal of the visa and the grant of entry outside the rules.

UPDATE:

Not often I say this but good on Theresa May https://t.co/XUy8sgfxIV

— Colin Yeo (@ColinYeo1) July 31, 2015