RFL07 - Frustrating the intentions of the Immigration Rules – paragraph 320(11)
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.
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RFL7.1 When can I refuse under 320 (11)?
This is a discretionary refusal where an applicant has:
- been an immigration offender or in breach of UK immigration or other law; and / or
- received services or support to which they were not entitled;
and where there are aggravating circumstances.
It is not sufficient to have been in breach of immigration law or to be an immigration offender. There must be aggravating circumstances as well.
RFL7.2 What are the services or support to which they were not entitled?
The following is not an exhaustive list, and are provided as examples only:
- obtaining asylum benefits
- state benefits
- housing and housing benefits
- tax credits
- employment
- goods or services
- NHS care using an assumed identity or multiple identities or to which not entitled.
RFL7.3 What are aggravating circumstances?
Please note that the list below is not an exhaustive list. Aggravating circumstances can include actions such as:
- absconding;
- not complying with temporary admission / temporary reporting conditions / bail conditions;
- not complying with reporting restrictions;
- failing to comply with removal directions (RDs) after port refusal of leave to enter (RLE);
- failing to comply with RDs after illegal entry;
- previous working in breach on visitor conditions within short time of arrive in the UK (that is, pre-meditated intention to work);
- previous recourse to NHS treatment when not entitled;
- previous receipt of benefits (income, housing, child, incapacity or otherwise) or NASS benefits when not entitled;
- using an assumed identity or multiple identities;
- previous use of a different identity or multiple identities for deceptive reasons;
- vexatious attempts to prevent removal from the UK, for example, feigning illness;
- active attempt to frustrate arrest or detention by UK Border Agency or police;
- a sham marriage / marriage of convenience / polygamous marriage in the UK;
- harbouring an immigration offender;
- facilitation / people smuggling;
- escaping from UK Border Agency detention;
- switching of nationality;
- vexatious or frivolous applications;
- not complying with re-documentation process.
All cases must be considered on their merits, the activities considered in the round to see whether they meet the threshold under paragraph 320 (11), taking into account family life in the UK and, in the case of children, the level of responsibility for the breach.
Where an applicant falls to be refused under 320(7A) or 320(7B), the ECO must also consider whether it is also appropriate to refuse the applicant under paragraph 320(11).
RFL7.4 Aggravating circumstances and appeal determinations
Full consideration must be given to an applicant's UK immigration history, including any appeal determinations, since it is aggravating circumstances which have occurred after the appeal determination which should be considered.
RFL7.5 Will I need to refer the case to an ECM?
Yes. ECOs will need to obtain ECM authorisation for all refusals under Paragraph 320(11).
RFL7.6 When to refer outside Post?
If, having taken account of the applicant's UK immigration history and any appeal determinations, and after consultation with the ECM, you are not sure whether to apply 320(11), refer the details of the case to ECCCAT for advice.