Since when do the Home Office make the right decision and apply the law correctly? Just because the Home Office makes a decision doesn't mean it is legally right.avjones wrote:Not any more. Overstayers are being refused on that basis ALONE. I've seen 10 in the past month, and more posted on this board.suzyq wrote:avjones wrote:Hi Suzy - I'm afraid that's no longer true. I've seen a lot of refusals recently under para 320 where spouse visas have been refused because of previous immigration histories.suzyq wrote:Firstly, a poor immigration history will only affect visa applications that are not for settlement purposes.
SuzyQ
Refusals due to past immigration histories usually occurs where there has been clear deception and false representations. This would therefore cast doubts over the genuineness of the marriage. The usual stance of the Home Office/ECO being "you have lied before, so why should we believe you now?"
Please refer to these cases:
http://www.ait.gov.uk/Public/Upload/j19 ... _china.doc
http://www.ait.gov.uk/Public/Upload/j18 ... _india.doc
The first 7 grounds for refusal are mandatory and the following ones are not. Overstaying is number 11.
"Paragraph 320
. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
(1) the fact that entry is being sought for a purpose not covered by these Rules;
(2) the fact that the person seeking entry to the United Kingdom is currently the subject of a deportation order;
(3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality;
(4) failure to satisfy the Immigration Officer, in the case of a person arriving in the United Kingdom or seeking entry through the Channel Tunnel with the intention of entering any other part of the common travel area, that he is acceptable to the immigration authorities there;
(5) failure, in the case of a visa national, to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought;
(6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;
(7) save in relation to a person settled in the United Kingdom or where the Immigration Officer is satisfied that there are strong compassionate reasons justifying admission, confirmation from the Medical Inspector that, for medical reasons, it is undesirable to admit a person seeking leave to enter the United Kingdom.
Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
(8 ) failure by a person arriving in the United Kingdom to furnish the Immigration Officer with such information as may be required for the purpose of deciding whether he requires leave to enter and, if so, whether and on what terms leave should be given;
(8A) where the person seeking leave is outside the United Kingdom, failure by him to supply any information, documents, copy documents or medical report requested by an Immigration Officer;
(9) failure by a person seeking leave to enter as a returning resident to satisfy the Immigration Officer that he meets the requirements of paragraph 18 of these Rules, or that he seeks leave to enter for the same purpose as that for which his earlier leave was granted;
(10) production by the person seeking leave to enter the United Kingdom of a national passport or travel document issued by a territorial entity or authority which is not recognised by Her Majesty's Government as a state or is not dealt with as a government by them, or which does not accept valid United Kingdom passports for the purpose of its own immigration control; or a passport or travel document which does not comply with international passport practice;
(11) failure to observe the time limit or conditions attached to any grant of leave to enter or remain in the United Kingdom;
(12) the obtaining of a previous leave to enter or remain by deception;
(13) failure, except by a person eligible for admission to the United Kingdom for settlement or a spouse or civil partner eligible for admission under paragraph 282, to satisfy the Immigration Officer that he will be admitted to another country after a stay in the United Kingdom;
(14) refusal by a sponsor of a person seeking leave to enter the United Kingdom to give, if requested to do so, an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted;
(15) whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document;
(16) failure, in the case of a child under the age of 18 years seeking leave to enter the United Kingdom otherwise than in conjunction with an application made by his parent(s) or legal guardian to provide the Immigration Officer, if required to do so, with written consent to the application from his parent(s) or legal guardian; save that the requirement as to written consent does not apply in the case of a child seeking admission to the United Kingdom as an asylum seeker;
(17) save in relation to a person settled in the United Kingdom, refusal to undergo a medical examination when required to do so by the Immigration Officer;
(18 ) save where the Immigration Officer is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom;
(19) where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.
(20) failure by a person seeking entry into the United Kingdom to comply with a requirement relating to the provision of physical data to which he is subject by regulations made under section 126 of the Nationality, Immigration and Asylum Act 2002.
(21) Whether or not to the applicant's knowledge, the submission of a false document in support of an application."
Please also refer to the Home Office's Immigration Directorate Instructions (IDIs) Chapter 9 Section 2:
http://www.ind.homeoffice.gov.uk/docume ... iew=Binary
"PARAGRAPH 320(11) - FAILURE TO OBSERVE TIME LIMIT OR CONDITIONS ATTACHED TO PREVIOUS STAY
Whether or not a passenger satisfies the formal requirements of another paragraph of the Rules, under Paragraph 320(11) his previous immigration history may be taken into account. Refusal under this paragraph is appropriate where a person has shown by his previous conduct that he has contrived in a significant way to frustrate the purpose of the Rules. It is not intended that this paragraph should be used in a punitive manner, and the immigration officer should not seek to rely on, for example, a minor period of overstaying as a sole ground for refusal."
So overstaying ALONE will not be the only reason why a person can be legally refused. 320 only becomes mandatory when any of grounds 1-7 apply? What have been the outcomes of your clients' appeals? Did the Immigration Judge dismiss the appeal, despite your client's marriage being genuine and subsisting? What was said in respect of Article 8?
The poster of this thread was referring to her marriage to a British spouse, so really this what the post is about and not other types of visa applications in which 320 may be utilised.
I'm afraid I can't comment on the other posts on here regarding 320 but I am sure that not everything is as clear as it seems, and that refusals SOLELY based on 320, save grounds 1-7, are, in cases where paragraph 281 is satisfied, unlawful.
If a person has overstayed and is wanting to apply for a fixed term visa, say Student purposes or Family visitor and they have a messy immigration history, yes of course they will be refused. They will be unlikely able to convince the ECO that they intend to leave the UK at the end of their visa. However, in respect of settlement purposes, I still can't quite understand what legal basis you are asserting that overstaying will affect the application.
What the Home Office decides, is not always legally correct.
Please provide us with some legal authorities or clearer examples, rather than a simple one sentence response. Back up what you are saying please.
Regards,
SuzyQ