RFL05 - Immigration offender - paragraph 320(7B) and A320
This is internal guidance for use by entry clearance staff on the handling of refusals for visa applications made outside the United Kingdom (UK). It is a live document under constant review and is for information only.
On this page
- RFL5.1 When must I refuse under paragraph 320?
- RFL5.2 How long are applicants automatically refused for?
- RFL5.3 Conditional Cautions
- RFL5.4 When does rule 320(7B) not apply? Rule A320
- RFL5.5 When do I use a Document Examination Report / Document Verification Report?
- RFL5.6 320(7B) and the 17 March 2008 concession
- RFL5.7 320(7B) and victims of trafficking
- RFL5.8 320(7B) and the use of false representations, information and documents
- RFL5.9 320(7B) and removals
- RFL5.10 320(7B) and Assisted Voluntary Returns at public expense
- RFL5.11 320(7B) and students refused LTR after 1 September 2007
- RFL5.12 320(7B) and working holidaymakers
- RFL5.13 Can an entry clearance be revoked if deception is uncovered after issue?
RFL5.1 When must I refuse under paragraph 320?
Subject to paragraph A320 (see RFL5.4), an application can be refused when you have evidence that an applicant has overstayed, breached a condition attached to their leave, accepted a conditional caution, was an illegal entrant or used deception in an entry clearance, leave to enter or remain application (whether successful or not).
'Overstaying' means the applicant has overstayed their leave to enter / remain, not just stayed longer than they said they would. The rule requires that the applicant has overstayed for more than 90 days (or for any period if, after overstaying, he went home at public expense including AVR or similar programme).
'Overstayed' or 'Overstaying' means the applicant has stayed in the UK beyond the latest of:
(i) the time limit attached to the last period of leave granted, or
(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971, or
(iii) the date that an applicant receives the notice of invalidity declaring that an application for leave to remain is not a valid application, provided the application was submitted before the time limit attached to the last period of leave expired.
When assessing whether an applicant has breached a condition attached to their leave, the ECO should in the first instance review the relevant guidance and Immigration Rules(s) for that entry clearance category.
The legal standard of proof is 'balance of probabilities', so it must be more likely than not that the applicant has previously breached UK immigration law and we must have good evidence, for example, our records showed the applicant overstayed.
In deception cases, you will need to take into account representations from the applicant as to why they did not use deception. Subject to that, you can assume that the officer who took that decision applied the correct burden and standard of proof, unless the decision was overturned, for example, on appeal, Judicial Review or following reconsideration.
Examples of when you can assume that the officer applied the correct burden and standard of proof for establishing deception:
- Electronic copy of refusal notice held only (no other papers/docs). Applicant refused under, for example, paragraph 41 and reference made to the fact they applicant used false docs.
- Electronic copy of refusal notice held (no other papers/docs held). Applicant refused under 320(21) (false docs), 320(7A) or other deception rule.
- Electronic copy of refusal notice which makes reference to deception, false document / relevant papers held.
Where our earlier decision was overturned on appeal, you will need to consult the Adjudicator or AIT's determination to see if it overturned our finding that deception was used. If it did, then you should not apply paragraph 320(7B) to future applications. If the determination is not available, then you should give the applicant the benefit of the doubt and assume that our decision on this point was overturned.
ECOs need to consider whether it is appropriate to refuse the applicant under paragraph 320(11) of the immigration rules where the applicant has 'previously contrived in a significant way to frustrate the intentions of the Immigration Rules.'
RFL5.2 How long are applicants automatically refused for?
If an applicant falls to be refused under 320(7B), applications must be refused for the following periods:
- 12 months if they left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;
- 2 years if they left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of the removal decision, or no more than 6 months after the date on which the person no longer had a pending appeal; whichever is the later
- 5 years if they left UK voluntarily, at public expense;
- 5 years if they were removed from the UK as a condition of a caution issued in accordance with s.134 Legal Aid, Sentencing and Punishment of Offenders Act 2012
- 10 years if they were removed or deported from the UK;
- 10 years if they practised deception (which includes using false documentation) in support of a previous visa application.
Where an applicant has overstayed, breached a condition of leave, was an illegal entrant, accepted a conditional caution or used deception in a leave to remain application, the automatic refusal period is dated from the date the applicant left the UK. Where an applicant has used deception in a visa application, the automatic refusal period is dated from the date (in which deception was used) was refused.
Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest automatic refusal period from the UK will be taken into account.
For example, an applicant left the UK voluntarily at her own expense in January 2008 and applied for entry clearance using false documents in February 2008. Any subsequent entry clearance application must be automatically refused for 10 years, until February 2018. This is the longer refusal period where deception has been used in an entry clearance application. The shorter refusal period of 2 years for leaving the UK voluntarily is not applicable.
RFL5.3 Conditional Cautions
From April 2013, the Police or Crown Prosecution Service (CPS) can give a conditional caution to someone who is over the age of 18, has no valid leave to enter or remain, admits a criminal offence, agrees to comply with the conditions imposed upon them and accepts the conditional caution.
This means that the offender has agreed to leave the UK usually within 16 weeks from the date of the conditional caution and is unable to enter the UK for a further five years from the date they left the UK. If, within the five years of their removal, the offender is encountered seeking to enter, entered or having entered the UK they are liable to be prosecuted for the original offence.
Anyone who has been issued a conditional caution and applies for entry clearance within this five year period should be automatically refused under 320 (7B)(vii) of the Immigration Rules and S-EC.1.8. of Appendix FM. ECOs must also consider whether the application also falls to be refused under any other general grounds for refusal.
RFL5.4 When does rule 320(7B) not apply? Rule A320
Under paragraph A320 of the Immigration Rules, you must not refuse an applicant under 320(7B) if they are applying for settlement as a family member under Appendix FM but you may consider whether the applicant falls to be refused under the suitability requirements namely S-EC.1.8.:
In, addition, as concessions outside the Rules, you should also not refuse an applicant under 320(7B) if:
- the applicant has been accepted by UKBA as a victim of trafficking (see RFL 5.8)
- the applicant was in the UK illegally on or after 17 March 2008 and left the UK voluntarily before 1 October 2008 (see RFL 5.7)
In addition you must not refuse an applicant under 320(7B) if:
- false documents or false representations were used in a previous visa or leave to enter or remain application, and the applicant was not aware that the documents or representations were false;
- the period specified for automatically refusing applications has expired; or
- following their breach of UK immigration laws, UKBA issued a visa or leave to enter or remain in the knowledge of that breach, for example, a student who has overstayed but was granted LTE following an out of time application.
RFL5.5 When do I use a Document Examination Report / Document Verification Report?
Please see RFL4.7.
RFL5.6 320(7B) and the 17 March 2008 concession
The concession only applies to voluntary departures whether or not at public expense. It does not apply where the immigration offender was removed or deported from the UK.
Remember that making a decision to remove an immigration offender (Form IS 151B), or issuing a notice identifying him as an immigration offender (IS 151A part 2) does not in itself mean that the applicant has been removed from the country. It is perfectly possible for someone to leave the country voluntarily after a decision has been taken to remove him. You therefore need to be satisfied on the balance of probabilities that the immigration offender was actually removed before deciding that the concession does not apply to him.
RFL5.7 320(7B) and victims of trafficking
Posts are unlikely to see very many cases where victims of trafficking apply for entry clearance. They will largely be dealt with by caseworkers in the UK. If an applicant states that UKBA has accepted them as a victim of trafficking, ECOs need to contact Evidence and Enquiry (using HOReferrals) to check the information.
RFL5.8 320(7B) and the use of false representations, information and documents
If an applicant has previously been refused entry clearance because a false document was used or a false representation was made, the applicant may claim that they were unaware that the document or representation was false.
Unless the applicant can prove this, they must be automatically refused under paragraph 320(7B) for 10 years from the date deception was used (unless paragraph A320 applies). Where the documents relate directly to the applicant (for example, employment references, qualifications or financial details), such a claim would be likely to fail unless the applicant has clear evidence that an error has been made (for example, written confirmation from a financial institution that they had previously supplied us with incorrect information).
RFL5.9 320(7B) and removals
If an immigration offender has been removed or deported, then his future applications will be refused for ten years. Passengers, who have been refused and removed at port of entry are only subject to a 1 year ban if they have fully complied with the terms and conditions placed upon them by the refusing port and leave voluntarily not at the expense (directly or indirectly) of the Secretary of State.
Remember that making a decision to remove an immigration offender (Form IS 151 A part 2 or IS 151B), or issuing a notice identifying him as an immigration offender (IS 151A) do not in themselves mean that the applicant has been removed from the country. It is perfectly possible for someone to leave the country voluntarily after a decision has been taken to remove him, in which case future applications should only be refused for two or five years, not ten.
RFL5.10 320(7B) and Assisted Voluntary Returns at public expense
Where the immigration offender left the UK voluntarily but at public expense (for example, through an Assisted Voluntary Return), then they will have future applications refused for five years, but only if they committed a breach of immigration law before his return.
Where the immigration offender has returned under the AVRIM (Assisted Voluntary Return for Irregular Migrants) programme, they will, by definition, be an immigration offender, and so should have applications to return refused for five years.
Where the immigration offender has returned under the VARRP (Voluntary Assisted Returns and Re-integration Programme) scheme, you will need to be satisfied that the applicant has breached UK immigration laws. If they are an immigration offender, they will have future applications refused for five years.
RFL5.11 320(7B) and students refused LTR after 1 September 2007
An applicant should not be refused under 320 (7B) for previously overstaying in the UK if they were refused leave to remain as a student solely on the basis that they had made an out of time application (AECIP 2/2008 refers).
RFL5.12 320(7B) and working holidaymakers
Working holidaymakers will only have worked in breach of their conditions if they work in the UK for more than 12 months regardless of how long they have been staying in the UK. You cannot refuse a working holidaymaker under 320(7B) if they have worked in the UK for 12 months or less, even if you are satisfied that their work was not incidental to their holiday. A condition of their leave is 'Work restricted to 12 months'. So for example, a working holidaymaker who stays in the UK for 13 months and works 10 months has not breached this condition of their leave.
Working holidaymakers are expected to intend to take work in the United Kingdom as an incidental part of their working holiday. Those wishing to enter in the category should treat the work that they do as a purely incidental part of their holiday (which should be their primary reason for being here) rather than being the reason for which they have sought entry to the United Kingdom.
Accordingly, working holidaymakers must not intend to spend more than 12 months of their stay in employment, and must intend to spend the rest of their stay holidaying.
Entrants in the category may take most employment of their choice, including voluntary work. However, they may not engage in business or provide services as a professional sportsperson, and they may only engage in work for a maximum period of 12 months in total throughout their stay. They may choose when to work and when to take their holiday breaks as they wish, but those who exceed the maximum 12 month period of work permitted will be in breach of their conditions.
Working holidaymakers may not engage in 'business' but this restriction does not rule out all self-employed activity. A working holidaymaker may for example engage in activities such as window cleaning or working from home as a hairdresser, and can also set up a personal services company to provide his own professional services (for example, as an architect or physiotherapist) to others on a self employed basis. However, any activity which involves commitments such as major financial investment or investment in premises, expensive equipment or the employment of staff is not permissible under the working holidaymaker provisions and is to be regarded as activity for which a person would be required to qualify under the Rules relating to business. Holding shares in a company is permitted provided that the above conditions are met. Working holidaymakers can also set up companies provided that the above terms are met.
Particular restrictions are placed on the admission of sportspersons as Working Holidaymakers. Those who participate in sport as amateurs abroad and who wish to continue this activity for recreational purposes in the UK may do so. However, persons established as professionals or semi-professionals in sport who intend to continue such activities in the UK temporarily for payment or say they will do so for no pay, should be refused entry as WHMs.
RFL5.13 Can an entry clearance be revoked if deception is uncovered after issue?
Please see RFL4.8.