Sometimes a migrant here in the UK unlawfully will want to apply for immigration status. Lawyers and the Home Office often call this “regularising” their status, because the person becomes a “regular” migrant within the rules rather than an “irregular” one outside the rules. One of the ways to do this is by leaving the country and making an application for entry clearance from outside the UK.

Changes to the Immigration Rules, however, have made it successively harder and harder to acquire lawful status after being unlawfully present in the UK. One of the provisions that makes this particularly hard is paragraph 320 (11) of the Immigration Rules.

Paragraph 320(11): contriving to frustrate the intentions of the rules

Paragraph 320(11) of the Immigration Rules is a discretionary ground for refusal. It provides that entry clearance or leave to enter the United Kingdom should normally (but not always) be refused:

where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:

(i) overstaying; or

(ii) breaching a condition attached to his leave; or

(iii) being an illegal entrant; or

(iv) 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);

and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.

Appendix V for visitors includes a similar refusal paragraph at paragraph V 3.8.

The “contriving to frustrate” rule imposes a three-stage test:

1. First of all, did the applicant breach immigration laws in one of the specified ways;
2. If so, are there additional “aggravating circumstances”;
3. If so, the decision maker still needs to consider whether to refuse; refusals under this paragraph of the rules are not mandatory.

To reiterate, even where a person has previously contrived in a significant way to frustrate the intentions of the Immigration Rules, he or she might still be admitted to the UK.

In practice it is rare for an entry clearance official to grant a visa to a person who is considered to have badly breached immigration laws in the past. Paragraph 320(11) seems to be treated by many officials as if it were a mandatory refusal paragraph.

The wording of Home Office guidance to its officials on paragraph 320(11) doesn’t help. It wrongly suggests that it is a mandatory rule:

When an applicant has previously breached the Immigration Rules and/or received services or support to which they were not entitled you must consider refusing the application. When these circumstances are also aggravated by other actions with the intention to deliberately frustrate the rules, you must refuse entry clearance under paragraph 320(11).

There are two problems with this approach. Firstly, it is unlawful. Secondly, it may lead to a permanent ban from the UK for the person affected, which is of comparable seriousness to having been convicted of a serious criminal offence. Contriving to frustrate the rules may be serious, but it is not as serious as a prison sentence of four years or more, which attracts a permanent ban under paragraph 320(2)(b) of the rules.

Immigration law breaches that might trigger refusal

When considering an entry clearance application, immigration officials will carefully consider whether an applicant has engaged in what officials call “adverse behaviour.” As well as looking at the information presented in the application itself, officials are instructed always to perform the standard Home Office checks, which are:

• Home Office security checks
• other security checks
• Police National Computer (PNC)
• internal Home Office systems
• information on the application form

In the Rules, the list of immigration law breaches which might potentially constitute “contriving to frustrate the intentions of the Rules” is a finite and exhaustive list. It is:

1. overstaying
2. breaching a condition of leave
3. being an illegal entrant
4. using deception

If a behaviour by the person concerned is not listed here then paragraph 320(11) is not engaged at all.

To put it another way, these behaviours represent the minimum required to trigger a refusal under paragraph 320(11). However, they are not sufficient to justify refusal without more. Paragraph 320(11) goes on clearly to state that “aggravating circumstances” are also needed as well. We’ll turn to aggravating circumstances in a moment.

Receiving “services or support to which they were not entitled”

Strangely, Home Office guidance on paragraph 320(11) does not reflect the terms of the Immigration Rules themselves.

Under the heading “Contriving to frustrate the intentions of the rules”, the guidance document says:

When an applicant has previously breached the Immigration Rules and/or received services or support to which they were not entitled you must consider refusing the application.

The document goes on to list examples of “services and support” caught by this policy:

• asylum benefits
• state benefits
• housing benefits
• tax credits
• employment
• goods or services
• NHS care using an assumed identity or multiple identities or to which not entitled.

In fact there is no basis in paragraph 320(11) for refusing on the basis that the application “received services or support to which they were not entitled”.

It may be the case that receiving those services is linked to a “trigger behaviour” under paragraph 320 (11). For example, an applicant with leave with a condition of “no recourse to public funds” would breach a condition of their leave by claiming state benefits.

In all other cases, however, receiving services or support to which one is not entitled should be seen as an “aggravating circumstance”, not as a trigger behaviour. If there is no trigger behaviour, then receiving a service to which one is not entitled cannot attract a refusal under paragraph 320(11). It may, of course, attract a refusal under another part of the Rules, for example paragraph 320(19).

Aggravating circumstances

Even when paragraph 320(11) is engaged because the applicant previously breached immigration rules in one of the specified ways, the entry clearance officer needs to decide whether there were “aggravating circumstances.”

The natural meaning of the words makes clear that it must be something serious in addition to the trigger behaviour of breaching the rules in of the specified ways. This is reinforced by paragraph 320(11) itself, which sets out some non exhaustive examples of what might be counted as circumstances which are aggravating:

absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.

This examples are all relatively serious forms of breaches of immigration law.

Home Office policy builds on these examples and adds various other types of behaviour the Home Office considers comparable. These include (again, this is not an exhaustive list):

• absconding
• not meeting temporary admission/reporting restrictions or bail conditions
• failing to meet the terms of removal directions after port refusal of leave to enter or illegal entry
• previous working in breach on visitor conditions within short time of arrival in UK (indicating a deliberate intention to work)
• receiving benefits, goods or services when not entitled
• using an assumed identity or multiple identities
• getting NHS care to which they are not entitled
• attempting to prevent removal from the UK, arrest or detention by Home Office or police
• escaping from Home Office detention
• switching nationality
• troublesome or frivolous applications
• not meeting the terms of the re-documentation process
• taking part, attempting to take part, or facilitating, in a sham marriage or marriage of convenience
• harbouring an immigration offender
• people smuggling or helping in people smuggling

The guidance goes on to confirm that entry clearance officers

must consider all cases on their merits and take into account family life in the UK and, if the applicant is a child, the level of responsibility for any breach.

Unhelpfully, the guidance does not give officials any explicit encouragement to grant cases on this basis.

Dealing with refusals under paragraph 320 (11)

Although paragraph 320(11) is a discretionary ground for refusal, in the current climate, it is likely that entry clearance officers will use it whenever they can to refuse applications. Officials at certain entry clearance posts, including India, Pakistan and Bangladesh, are if anything rather over-eager to refuse under paragraph 320(11), even where the behaviour seems to lack the “aggravating circumstances” required by the rules.

Paragraph 320(11) can be particularly harsh. This is for three key reasons:

1. Firstly, paragraph 320(11) applies to absolutely everyone, including family applicants under Appendix FM (except in applications under EU law and Appendix EU).
2. Secondly, the fact that an applicant was a child when they breached immigration rules will be taken into consideration, however that again does not automatically mean that previous breaches of immigration law will be disregarded, unlike paragraph 320(7B).
3. Thirdly, paragraph 320(11) does not have time limits, unlike paragraph 320(7B). It is in theory a permanent exclusion from the United Kingdom.

Once a person has been refused under paragraph 320(11) it will be rare for officials to change their mind on the basis of further representations, new evidence or a new application. A refusal is likely to stand for a prolonged period, and potentially forever.

Where a clear mistake has been made by officials, a complaint may be worthwhile but in most cases it will often be necessary to bring a legal challenge. Where the person refused entry is a family member, there will usually be a right of appeal to the immigration tribunal on human rights grounds. In other cases where there is no right of appeal, an application for judicial review will be necessary.

Helpful cases

There are a small number of cases that might help applicants refused under paragraph 320(11) on the grounds of contriving to frustrate the intentions of the rules.

JC (Part 9 HC395) – burden of proof) China [2007] UKAIT 27

This case ruled that

In relation to all of the general grounds the burden of proof is on the decision-maker […] to establish the facts relied upon” (paragraph 10)

The entry clearance officer, therefore, will bear the burden of proof to show that an applicant should be refused, rather than an applicant needing to prove that he or she should not be refused.

What this means in practice is that an applicant does not have any positive obligation to disclose matters which would prejudice his or her case, provided he or she never deceives (or they could be subject to a ten-year entry ban). Unless the application form specifically asks for it, therefore, an applicant would not need to disclose, for example, that they previously entered into a sham marriage.

PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC)

In this case, the judge said:

In exercising discretion under paragraph 320(11) […], the decision maker must exercise great care in assessing the aggravating circumstances said to justify refusal and must have regard to the public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance. (my emphasis)

In the tribunal’s conclusions Kenneth Parker J elaborated:

The Entry Clearance Officer, in making the decision of refusal, refers nowhere to the guidance under paragraph 320(11).  It is therefore wholly unclear whether the Entry Clearance Officer has addressed his mind to the relevant question, namely whether in the circumstances of this case Mr S’s breach of UK immigration law was sufficiently aggravating so as to justify the refusal.  It seems to us that the Entry Clearance Officer should have specifically recognised that Mr S had voluntarily left the United Kingdom more than 12 months ago with a view to regularising his immigration status.  […]  If the aggravating circumstances are not truly aggravating there is in this context a serious risk that those in the position of Mr S will simply continue to remain in the United Kingdom unlawfully and will not seek to regularise their status as he has sought to do.  The effect then is likely to be counter-productive to the general purposes of the relevant rules and to the maintenance of a coherent system of immigration. (my emphasis)

It further states that

Mr S had made a claim under Article 8 which, standing alone, may not have been very strong.  Nonetheless the family circumstances needed to be evaluated carefully in the balancing exercise to which we have referred.

This case is helpful in that it confirms that

1. When deciding of an application, the entry clearance officer should look favourably at the fact that an applicant decided to leave the UK and submit a new application to regularise their status.
2. Family circumstances need to be taken into account when deciding an application.

ZH (Bangladesh) v SSHD [2009] EWCA Civ 8

In this case, the Court of Appeal observed that illegal working was part and parcel of illegal residence and did not exclude success under a rule designed to regularise some such persons. Presumably, one could apply this case to argue that illegal working should not be considered an aggravating circumstance, but simply goes to show that stage 1 of the test is met.

The guidance suggests that entry clearance officers would agree with this argument, as it specifies that an aggravated circumstances for illegal work is when it is “in breach [of] visitor conditions” and “within short time of arrival in the UK (indicating a deliberate intention to work)”. Had it wanted to catch all instances of unlawful work, the guidance would simply have said “previous illegal work”.

This article was originally published in March 2017 and has been updated so that it is correct as of the new date of publication shown.