On 1 December 2020, the Grounds for Refusal in Part 9 of the immigration rules were amended, providing the Home Office with a wider scope to refuse permission applications and cancel existing permission. They include stricter mandatory grounds of refusal which, when applicable, require that applications for permission “must be refused” or existing permission “must be cancelled”. But just how mandatory are they? A recent case of ours indicates the presence of a hidden discretion that was once explicit.

Criminality grounds

Part 9 of the immigration rules applies to almost every application for permission to enter and remain in the UK. The grounds cover a myriad of scenarios including the submission of false representations, involvement in sham marriages, owing debts to the NHS and previous immigration breaches. However, it is the “criminality grounds” that perhaps most commonly create difficulties for applicants. 

One of the new, tougher, criminality grounds states (emphasis added):

9.4.1. An application for entry clearance, permission to enter or permission to stay must be refused where the applicant:

(a) has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or

(b) is a persistent offender who shows a particular disregard for the law; or

(c) has committed a criminal offence, or offences, which caused serious harm.

This is a tightening of the previous criminality ground, under which those who had received sentences of more than 12 months but less than four years stood for mandatory refusal unless 10 years had passed since the end of their sentence (or 15 years in the case of a settlement application).

No discretion?

The new mandatory refusal grounds contain no hint of discretion. The accompanying Grounds for refusal – criminality: caseworker guidance doesn’t offer up any scraps of hope either. In fact, the notably bare section on criminality for applications submitted after 9 am on 1 December 2020 includes only a direct copy and paste of the “mandatory refusal” rules. There are very few notable qualifications, including that permission should not be refused or cancelled solely on the basis of an overseas conviction for an offence that is not recognised in the UK.

By contrast, the guidance in relation to criminality refusal grounds for applications submitted before 9 am on 1 December 2020 gives caseworkers considerable discretion when considering refusal under a previous “mandatory” ground. For example, the former iteration of Part 9 included a mandatory ground of refusal where the applicant had previously received a sentence of four years or more in prison following a conviction (“you must refuse their application”). But the guidance also states that caseworkers “must always consider if there are any very compelling factors which amount to an exceptional reason why the application should be granted”. 

The current guidance lacks any examples about what this means but previous versions included the following non-exhaustive list of exceptional and compelling 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

The deletion of any such reference in the guidance relating to post 1 December 2020 applications is an attempt to make mandatory refusal grounds just that – mandatory – with no exceptions.

So what can be done?

A recent case of ours concerned a client (with his wife and child) applying for settlement who had received a 14-month prison sentence overseas almost 30 years ago. Since receiving that conviction, he has turned his life around and become a senior employee of a UK company. His previous permission applications had been successful because more than 10 years had expired since the end of his sentence. However, the amended rules meant that his settlement application was refused under the new mandatory criminality ground, paragraph 9.4.1.

When neither a request for administrative review nor pre-action correspondence persuaded the Home Office to change its mind and exercise discretion, together with Rebecca Chapman of Garden Court Chambers, we issued an application for permission to apply for judicial review.

The judicial review grounds included submissions that the new Part 9 and guidance had in effect fettered the Secretary of State’s residual discretion to grant applications outside the rules; that Part 9 was beyond the meaning of section 6 of the Human Rights Act 1998, section 3(2) of the Immigration Act 1971 and section 55 of the Borders, Citizenship and Immigration Act 2009; and that the Home Office had failed to undertake the requisite balancing exercise under Article 8 of the European Convention of Human Rights.

Without explanation, the Home Office decided not to defend the claim and agreed to grant settlement to our client and his family, despite the applicability of a mandatory refusal ground and guidance that contains no scope for granting permission.

This leaves us with an unsatisfactory lack of clarity about the reasoning for the Home Office’s reversal. At the very least, this is an example that there is scope to make submissions about exceptionality despite the unambiguous language employed in the mandatory grounds and caseworker guidance.

With the introduction of the UK’s Electronic Travel Authorisation (ETA) scheme being phased in this year and next, many more people will find themselves needing to apply for a visitor visa and could be subject to mandatory grounds for refusal. At the same time, individuals on or seeking to apply to current work, study and settlement visas remain subject to mandatory grounds of refusal. The Secretary of State always has discretion to grant leave outside of the immigration rules but this is highly unlikely to happen when caseworkers are not instructed to consider exceptional circumstances. The Home Office should update its guidance to include explicit reference to this discretion and provide details about what will constitute exceptional grounds for approval when applications fall for refusal under a mandatory ground.