HC321 Immigration Rule change to start soon

Migrants face a 10 year ban for overstaying

By Charles Kelly

20 February 2008

As part of the Government’s on-going ‘get tough’ immigration policy, a Statement of Changes in Immigration Rules HC 321 was laid before Parliament on 6 February 2008. HC 321 amends the general grounds for refusal of an immigration application. 

In some cases rule-breaking migrants could be banned from applying for entry to the UK for 10 years.

ILPA, the professional association with some 1000 members, including Barristers, Solicitors and Immigration Advisers, believes the rule changes will have serious consequences for migrants who break the conditions of their visa or overstay.

The results will be:

• Mandatory refusal of an application where false representations have made or false documents used, whether or not material to the application and whether or not the applicant knew of the falsehood.
  
• Re-entry bans for those who have overstayed, breached their conditions of leave (e.g. a student working over 20 hrs a week in term time). 

Those who leave within 28 days at their own expense will escape the ban. 

Overstayers making a voluntary departure at their own expense face a 1 year ban, during which any application for entry clearance will be refused, rising to 5 years if the departure was at the expense of the State and 10 years if the person was removed or deported, or used deception.

ILPA has written to Liam Byrne MP, Minister for Immigration, Citizenship and Nationality, to address their concerns. 

In summary, the changes to the general grounds for refusal are:

• From 29 February 2008 refusal of entry clearance or leave to enter, cancellation of leave or refusal to vary leave will be mandatory where false representations have been made or false documents submitted, whether or not these are material to the application and whether or not the applicant knew that such representations were being made or documents submitted.  
   
• From 1 April 2008 for those who have previously overstayed, breached their conditions of stay, entered illegally or used deception, refusal of a fresh entry clearance or leave to enter application will be mandatory for fixed periods – except those who have done no more than overstay for 28 days or less. The fixed periods are 12 months from when the person made a voluntary departure at their own expense, 5 years from when the person made a voluntary departure that was paid for and 10 years from when the person was removed or deported. In the case of a person who used deception in an entry clearance application, the fixed period will be for 10 years from the time of that deception.

Once these changes come into force, any application for permission to enter or remain in the UK must be refused if any of the above rules have been breached. 

There will be no discretion. ILPA expects there will be a number of legal challenges and appeals.

Many advisers believe these tough new rules have been ill thought out and could drive illegal immigrants further underground, because they will have nothing to gain and everything to lose.