‘Suitability’ refers to grounds upon which the Home Office may (i) refuse to grant or (ii) cancel permission to enter or stay in the UK. The rules on suitability can be very complicated and differ between visa categories. Some visa categories have specific suitability requirements. Applicants for spouse visas under Appendix FM, for example, must show that they meet the suitability requirements in section S-EC.
It is important to note that specific suitability requirements are sometimes additional to the general suitability provisions in Part 9 of the Immigration Rules. This is the case for Appendix FM applications, which are subject to their own suitability requirements in section S-EC and some sections of Part 9.
Section 1 of Part 9 contains the provisions on its applicability to different visa categories. For example, Part 9 does not apply to Appendix EU, which has its own suitability requirements at EU15 of the Immigration Rules. Part 9 applies only to a limited extent in Appendix Private Life applications (only the provisions on sham marriages apply), which again, have their own separate suitability requirements, in paragraph PL 2.1. The full provisions of Part 9 apply only to some kinds of visa categories (e.g., student, visit and skilled worker visas).
The provisions on previous breaches of immigration laws as a general suitability issue under Part 9 are contained in paragraphs 9.8.1 to 9.8.7.
As this article will explain, previous breaches of immigration law can be fatal to visa applications. So too can failing to address a previous breach in an application properly.
This article answers three questions:
- What constitutes a breach of immigration law?
- How do previous breaches of immigration law affect visa applications?
- How should previous breaches of immigration law be addressed in visa applications?
What constitutes a breach of immigration law?
For the purposes of paragraphs 9.8.1 (mandatory refusal if within the relevant period) and 9.8.2 (discretionary refusal if outside the relevant period), a person will not be treated as having breached immigration laws if they were under the age of 18 at the time of the breach (per paragraph 9.8.4). It should be noted, however, that a child may still be refused permission on the suitability grounds in paragraphs 9.8.3 and 9.8.3A (previous failure to comply with conditions and use of deception in an application).
There are several ways that an adult can breach immigration laws for the purposes of mandatory and discretionary refusal under paragraphs 9.8.1 and 9.8.2 (as set out in paragraph 9.8.4 and the Home Office guidance):
- Breaching a condition of permission;
- Illegal entry (including attempted illegal entry); or
- Use of deception in an application.
Overstaying is staying in the UK longer than permitted by your permission to enter or stay. Paragraphs 9.8.4 and 9.8.5 and the Home Office guidance indicate that, for the purposes of paragraphs 9.8.1 and 9.8.2, a person is not treated as having overstayed if they leave the UK voluntarily and any of the following apply:
- the person overstayed for 90 days or less and the overstaying began before 6 April 2017
- the person overstayed for 30 days or less and the overstaying began on or after 6 April 2017
- overstaying in relation to which paragraph 39E of the Immigration Rules (concerning out of time applications made on or after 24 November 2016) applied, together with any period of overstaying pending the determination of any related appeal or administrative review
It should be noted that although these provisions mean that overstaying for 30 days or less (or up to 90 days if before 6 April 2017) will not trigger the automatic re-entry ban, it is nevertheless strongly advisable to leave the UK before the expiry of permission. Knowingly remaining in the UK beyond the expiry of limited leave is a criminal offence under s24(1)(b)(i) of the Immigration Act 1971, and overstayers are subject to the hostile environment, which requires employers, landlords and NHS staff to check your immigration status before offering a job, housing or healthcare. Moreover, in future applications, any previous periods of overstaying may be held against an applicant seeking to show, for example, that they will leave at the end of the expiry of their permission (e.g., visit visas).
Breaching a condition of permission
The conditions referred to here are those attached to a person’s permission to enter or stay in the UK. These may include conditions restricting employment, occupation or studies, as well as requirements on residence, registration with the police, or reporting to an immigration officer. It is an offence under s24(1)(b)(ii) of the Immigration Act 1971 to breach these conditions.
It should be noted that, additionally to being classed as its own breach of immigration law, there is a further ground for refusal in paragraph 9.8.3:
“An application for permission to stay may be refused where a person has previously failed to comply with the conditions of their permission, unless permission has been granted in the knowledge of the previous breach.”
This may become significant where, for example, a child has failed to comply with the conditions of their permission.
Illegal entry means knowingly entering the UK without leave to enter, unless of course leave is not required (e.g., because the person is a British citizen). It is an offence under s24(1)(a) of the Immigration Act 1971.
Using deception to obtain or seek to obtain leave to enter or remain in the UK (or to avoid, postpone or revoke an enforcement action) is an immigration offence under s24A of the Immigration Act 1971. This may be done by lying in an application for a visa.
It should be noted that, additionally to being classed as its own breach of immigration law, there is a further basis for refusal under paragraph 9.8.3A:
“Unless 9.8.1. applies, an application for entry clearance, permission to enter or permission to stay may be refused where a person used deception in relation to a previous application (whether or not successfully).”
How do previous breaches of immigration law affect visa applications?
Where paragraph 9.8.1 of the Immigration Rules applies (e.g., visit, student and skilled worker visa applications), permission to enter “must” be refused if the following two requirements are met:
- The applicant has previously breached immigration laws; and
- The application for entry clearance or permission to enter was made within the relevant time period.
Refusal is mandatory in these circumstances, although it is in principle possible that the Home Office could grant leave outside the rules, as section 3 of the Immigration Act 1971 confers an unfettered power to grant leave.
Where paragraph 9.8.2 of the Immigration Rules applies (e.g., student, visit and skilled worker applications), entry clearance or permission to enter “may” be refused if the following three requirements are met, though the decision-maker has discretion whether to grant the application upon consideration of all the circumstances in the case:
- The applicant has previously breached immigration laws;
- The application was made outside the relevant time period; and
- The applicant previously contrived in a significant way to frustrate the intention of the rules, or there are aggravating circumstances (in addition to the breach).
What is the ‘relevant time period’
The table of relevant time periods is set out at paragraph 9.8.7. It should be consulted before making an application for leave to enter or entry clearance. The relevant period starts from the date the applicant left the UK (except in cases of deception in an immigration application, then it starts from the date of the refusal of the application).
The length of the ban will be between 12 months (if the applicant left the UK voluntarily and at their own expense) and 10 years (if the applicant was removed from the UK at public expense or used deception in an application).
These are the so-called ‘automatic bans’ that apply in cases where the applicant has previously breached immigration laws.
Contriving to frustrate the rules and aggravating circumstances
Where the automatic ban has expired or is not applicable, previous breaches may still constitute a ground for refusal if the Home Office concludes that the applicant contrived to frustrate the intention of the Immigration Rules in a significant way, or that there are aggravating circumstances (under paragraph 9.8.2).
The rules provide a non-exhaustive list of examples of circumstances that may aggravate a previous breach of immigration laws and/or demonstrate an intention to frustrate the rules in a significant way: “failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding.”
The Home Office guidance gives further examples of how previous immigration offences may be aggravated:
- 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
- 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 Home Office will consider “all the circumstances of the case,” including why and how the breach happened, the period since the breach and any other circumstances, such as the impact of a refusal on the individual or their family living in the UK. If a condition was breached, the period between the condition being imposed and the breach will also be considered.
Appendix FM applications
The discretionary ground for refusal applies to Appendix FM applications (paragraph 9.8.2), but not the mandatory ground (paragraph 9.8.1). The provisions on relevant time limits do not apply to Appendix FM (paragraph 9.8.2(b)).
Therefore, as is stated in the Home Office guidance, an application for entry clearance under Appendix FM may be refused “where there has been a previous breach of an immigration law and the applicant has contrived in a significant way to frustrate the intention of the rules or there are aggravating circumstances.”
Refusal is discretionary in these circumstances.
How should previous breaches of immigration law be addressed in visa applications?
If there is an active automatic re-entry ban, it is probably inadvisable to make an application; the best option may be simply to wait for the re-entry ban to expire, as any application is likely to be destined to fail. Of course, if you believe the re-entry ban has been wrongly imposed, it may be possible to challenge this decision by way of appeal. As stated above, it may also be possible to apply for leave outside the Rules if there are circumstances to warrant it.
If you have previously breached immigration laws, but an automatic ban does not/no longer applies, it is essential that the circumstances of the breach are fully addressed in your application, whether the breach was overstaying, illegal entry, breach of conditions or deception.
It is advisable to explain any compassionate circumstances surrounding the breach, and if possible to provide independent verifiable evidence of these circumstances. For example, if you overstayed your visa because you were caring for a loved one in hospital, you should provide evidence of their medical treatment to support the compassionate reasons for the breach. If you have worked in breach of a condition, but the work was necessary to prevent your children from destitution, you may provide evidence that you worked no more than was necessary to support your family.
The Home Office may regard any failure to disclose previous breaches of immigration law as deception because, for most visa applications, you will be required to disclose previous breaches or to check a box confirming that you have never previously breached immigration laws. As mentioned above, a finding of deception by the Home Office can lead to a 10 year automatic ban on re-entering the UK.