As expected, the obscure but important Chapter 53 of the Enforcement Instructions and Guidance (‘Extenuating Circumstances’) has been amended following on from the scrapping of paragraph 395C of the Immigration Rules. The new text is basically in line with the amended rules and is set out below for reference. It shifts the onus to the migrant to make any exceptional circumstances known to UKBA and is less generous in a number of respects.

As it happens, HJT Training have prepared a free briefing on paragraph 395C. If you’d like you can use the briefing as the basis to claim 1 CPD point at a cost of £25: the briefing is free but the CPD point is not!

The main text of the relevant part of the new EIG is as follows:

53.1.1 Exceptional Circumstances – Relevant Factors

Relevant factors are set out below, but this list is not exhaustive.

The consideration of relevant factors needs to be taken as a whole rather than individually. When determining whether or not exceptional circumstances exist, consideration of the relevant factors in 353B needs to be taken as a whole. Discretion not to remove on the basis of exceptional circumstances will not be exercised on the basis of one factor alone.

(i) Character, conduct and associations including any previous criminal record and the nature of any offence of which the applicant has been convicted

When considering an individual‟s character and conduct, regard must be given to whether;

• There is evidence of criminality that meets the Criminal Casework Directorate (CCD) threshold; or
• The individual has been convicted of a particularly serious crime (below the CCD threshold) involving violence, a sexual offence, offences against children or a serious drug offence; or
• There are serious reasons for considering that the individual falls within the asylum exclusion clauses; or it is considered undesirable to permit the individual to remain in the UK in light of exceptional circumstances, or in light of their character, conduct or associations, or the fact that they represent a threat to national security
• Evidence of criminality or conduct meeting the criteria above will normally mean that an individual cannot benefit from exceptional circumstances.

(ii) Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable

Where there is evidence of an attempt by the individual to delay or frustrate the decision making process, frustrate removal, or otherwise not comply with any requirements imposed upon them, then this will weigh against the individual.

Caseworkers must also take account of:

• Evidence of deception practised at any stage in the process;
• Failure to attend interviews as requested;
• Failure to supply information as requested (e.g. for re-documentation);
• Failure to comply with reporting conditions;
• Whether they have worked illegally;
• Any other type of fraud or deception, such as benefit fraud or NHS debt;
• An individual‟s lawful employment history and how they have supported themselves and/or their family;
• A sustained history of compliance with every requirement UKBA has made of them, including providing full information in their application, attending interviews, compliance with reporting requirements

Caseworkers must assess all evidence of compliance and non-compliance in the round, but repeated non-compliance and/or lengthy periods of absconding will generally mean that an individual cannot benefit from exceptional circumstances, unless there are strong countervailing reasons in their favour.

(iii) Length of time in the United Kingdom accrued for reasons beyond the migrant’s control after their human rights or asylum claim has been submitted or refused;

The length of residence in the UK is a factor to be considered where residence has been accrued by an unreasonable delay which is not attributable to the migrant. Periods of residence which are caused by actions of non-compliance attributable to the migrant will not count in the migrant‟s favour. More weight should be attached to the length of time a child has spent in the UK compared to an adult.

Provided that the factors outlined in “Character” or “Compliance” do not weigh against the individual, then caseworkers should also consider where there has been significant delay by UKBA, not attributable to the migrant, in deciding a valid application for leave to remain on asylum or human rights grounds or where there are reasons beyond the individual‟s control why they could not leave the UK after their application was refused. For example:

• “Family” cases where delay by UKBA, or factors preventing departure, have contributed to a significant period of residence (for the purposes of this guidance, “family” cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where the factors outlined in “Character” and “Compliance” do not weight against the individual, family cases may be also be considered exceptionally on grounds of delay where the dependent child has lived in the UK for more than 3 years or more whilst under the age of 18.
• Any other case where the length of delay by UKBA in deciding the application, or where there were factors preventing departure, the case worker following an individual assessment of the prospect of enforcing removal and where the factors outlined in “Character” and “Compliance” do not weight against the individual, concludes that the person will have been in the UK for more than 6 years.

(iv) Any representations received on the persons behalf;

These must always be considered and given due weight. Individuals may raise other relevant factors not listed above. These should be fully considered on a case-by-case basis.