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Mandatory refusals and contriving to frustrate
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I’ve just come across an interesting little judgment on mandatory refusal cases. It is only a permission decision so it has limited precedent value, but it is worth highlighting.
The case is SA (Pakistan) v SSHD [2009] EWCA Civ 1510 and concerns the mandatory refusal grounds set out at Immigration Rule 322. Permission was previously granted on the papers on some other tantalisingly unspecified grounds, which from the context may well be very interesting. This judgment was in respect of the grounds on which permission had been refused. In the course of giving judgment Sir David Keene comments as follows:
6. I will deal with these arguments in respect of SA and PB before I turn to the rather different case of NB. It is right that this particular provision of the Immigration Rules is expressed in mandatory terms. So, of course, are many other parts of the Immigration Rules, such as those requiring a valid entry clearance if the person is to be allowed to enter under various provisions: see, for example, paragraph 245B.
7. Such provisions are not ultra vires the Home Secretary’s power under section 3(2) of the 1971 Act because the rules are, as that subsection states, statements of the rules as to the practice to be followed in administering the 1971 Act. The Secretary of State retains, as Mr Malik recognises, a discretion to grant leave to enter or leave to remain outside the rules. That is clear from two divisional court cases, R v SSHD ex parte Rajinder Kaur & Ors [1987] Imm AR 278 and R v SSHD ex parte Ounejma [1989] Imm AR 75, both of which dealt with the provision requiring refusal of leave to enter if there was no entry clearance. In the former Glidewell LJ and Schiemann J, as he then was, held that such a mandatory rule was intra vires, the Secretary of State retaining a discretion. The same approach was adopted in the latter case. I can see no prospect of persuading the Court of Appeal that paragraph 322(1A) is ultra vires. Of course there is some force in what Mr Malik says about the approach which one should adopt towards the interpretation of the Immigration Rules. They are to be interpreted sensibly and not as strictly as one would when construing a statute. See for example R v IAT ex parte Alexander [1982] 1 WLR 1076 at 1080.
8. That would entitle, in my view, an immigration judge to regard a trivial and innocent mistake in an application form as falling outside the terms of this provision. To that limited extent, I accept the point made by Mr Malik about a flexible interpretation but only to that extent. It would not apply simply because an error was made innocently if that error was nonetheless a serious one. It cannot avail these two applicants, even were there errors to be regarded as innocent ones. The misinformation provided in these two cases was very far from trivial…
I have acted in a few judicial review applications recently where Immigration Rules 320(7A) and then 320(7B) have been used to refuse applicants who have made arguably trivial mistakes in completing their visa application forms. All of the cases have been promptly settled so far, but if one eventually makes its way to court this (and perhaps the full judgment on the unknown grounds on which permission had already been granted) will be a useful bit of authority.
While on the subject, new guidance to ECOs has recently come out on the meaning of ‘contriving to frustrate’ the intentions of the rules. A much clearer spin seems to be given to the need for there to be aggravating circumstances in order to justify refusal, which is to be welcomed. Some of the said circumstances are comparatively trivial, though, while some are more obviously aggravating.
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6 responses
Dealing with a case recently that referred to the “contriving to frustrate..” rule, I noticed that it does not contain a separate provision as regards how long an applicant can be barred from returning to the UK. This seems quite peculiar, as the mandatory refusals contain different and varying timescales in which a person can apply to re-enter, a sort of heirachy corresponding to the seriousness of the relevant immigration offence.
Surely, given the “contriving to frustrate” rule ostensibly refers to a lesser offence (as it does not provide for a mandatory refusal), it would not make logical sense for there to be an equal or longer period of time preventing an application for re-entry.
Some IJs have observed that where 320(11) applies, an applicant may not for a long time be allowed to re-enter. This must be contrary to the intention of the rules. Morover, it would appear that ECOs use 320(11) to apply re-entry bans to those where the mandatory refusals cannot be applied, ie, in family settlement cases, suggesting that it is in fact a more powerful tool than the provisions of the mandatory refusal rules, as it applies to a larger class of applicants.
I think you make quite an interesting point, how long would an application continue to be refused under 320(11)? Conceivably I guess one could argue that it is right to exclude someone from the UK for something very serious, but surely this is what we have criminal prosecutions and resulting deportation orders for? Of course it means that people would have to admit to such offenses before leaving, which is unlikely….
320(7B) have been used to refuse applicants who have made arguably trivial mistakes
Honest mistakes can be mame. Why is there no common sense today? Everything is done by ‘rules’ or guideline: copy & paste the answer?! I was refused entry and even Worldbrige were confused.
I have the right to appeal the case but the length of time an appeal takes defeats the object of having the right of appeal in the first place so I applied again to 2 weeks later!
I was on a 1 year ban. I applied before the ban was up but asking for a post dated visa to start after my ban was over. I applied 3 months in advance of when I wanted the visa to start. I found this info on both http://www.visainfoservices.com & http://www.ukvisas.gov.uk , this is misleading. Loop hole maybe?
I was refused under 320(7B) for 1 year since I left the UK. I meet all other requirements of a family visitor.
Also the ECO did not address the Human Rights issue. To refuse me would constitute a breach and an unfair interference to our right of family. It is contrary to human rights to refuse an application to the UK regardless of any ban.
The Entry Clearance Guidance – General Instructions state that entry clearance officers must not impose a re-entry ban if:
“the applicant has raised human rights issues (in particular right to family life under Article 8) which would justify issuing the entry clearance”
I am married to a British citizen, I am Canadian.
Also when I applied again Worldbridge said my photo had to be no more then 1 month old!!? It says 6months on the website? I did get a new photo after 2 hours driving around trying to find a place that would do it but thinking at the same time I was mislead.
I stated the immigration rules etc in my application & it VERY clear of the Human Rights issues, 1 year ban etc. I was extremely homest about everything but then again where is common sense, is there such a thing? Or have I forgot its ‘1984’
Well let me start by saying that this article has touched a raw nerve….my husband has recently been refused entry clearance using 320 (7b) and I didn’t know whether to laugh or cry when I saw his refusal notice…he was in the uk for close to 8 years and had return to the home country to switch his visa status… We had an ongoing case with the Home Office which went through an appeals process where an immigration judge didn’t really care if he lost his hard earned employment or that it would be difficult for us to go by on one persons income.. Fair enough we applied for entry clearance through BHC and got refused under 320 (7b) staring that my husband had overstayed three months..(clearly the time when the appeal was going on)… Obviously the Eco didn’t bother to look at all the documents or did he… Now a lenghty appeals process has started… I just wonder what’s the point if the UkBa is going to treat everyone the same… What’s the point that my husband paid all his dues on time and never did anything wrong…
It feels as if the whole thing is a sham…
I’m really sorry to hear this. You need to get yourself a decent lawyer. It may be worth bearing in mind that 320(7B) does not apply to spouses because of 320(7C).
My spouse was also refused entry clearance under 320 7a and paragraph 281 saying that the marriage was not genuine or subsisting. An appeal took place in April 2011 and the appeal was allowed as the ECO did not provide proof of the 320 7a and the IJ agreed that the marriage was subsisting. Prior to the hearing we asked the ECO for proof of the 320 7a and we were ignored. We also received confirmation from the Home Office that no report or documentation was available or produced. The HOPO conceded during the appeal that the 320 7a had not been discharged.
However, on receipt of the determination my husband’s application was re-refused again on 320 7a. After receiving the determination the ECO sought further investigation and state that they now have evidence to prove the 320 7a allegation. My husband and I appealed again and our case was heard yesterday 24th November at the AIT. Again, the ECO did not provide of 320 7a and no one from the Home Office even attended the hearing!!!! I am now worried – will I have to go through this again?? This is costing me a substantial amount of money and I am afraid the the Ara (successful appeal – no entry clearance) case law will allow the ECO to re-refuse again. This is abuse of the tribunal the ECO has now had a total of 38 weeks to prepare for the hearing. Do I have to go through this system for the 3rd time. The whole of the UKBA needs to sacked – I have now been apart from husband for 2 years now …this is beyond ridicolous.