Good news for those who have been refused under 3207b

[chibage]

Significantly contrived to frustrate the immigration rules has been changed . Good luck everyone !!!The concession means that Rule 320(7B) will not apply to such an applicant. However, the applicant will still have to satisfy the other requirements of the Immigration Rules.

ECOs also need to reconsiderapplications from categories (1) to (7) which have been refused since 1 April 2008 under 320(7B). Where applications were refused solely under 320(7B), unless the applicant 'significantly contrived to frustrate the immigration rules', the original decision should be overturned and the appropriate entry clearance issued. Where other grounds were cited, an ECM should review the case and consider whether the remaining grounds are sufficient to uphold the original decision. Posts are not expected to contact those whose cases qualify for reconsideration and applicants will be expected to come forward. Where a decision is overturned but the applicant has an outstanding appeal, they should be invited to withdraw their appeal and the AIT notified in the usual way.
26.17.5 'Contrived in a significant way to undermiine the intentions of the immigration rules' test
'Contrived in a significant way to undermine the intentions of the immigration rules' is where an applicant has previously been an illegal entrant, overstayed, breached a condition attached to his leave or used deception in a previous entry clearance, leave to enter or remain application, but only where there are aggravating circumstances. Aggravating factors include offences such as not complying with reporting restrictions, using multiple identities, a sham marriage, harbouring an immigration offender and facilitating/people smuggling. This is not an exhaustive list and all cases must be considered on their merits taking into account family life in the UK and the level of responsibility for the breach in the case of children. ECOs will need to obtain ECM authorisation for all refusals under Paragraphs 320(7A) and 320(7B) of the immigration rules.

[ipassfield]

HI,

Where did you get this information from? I would like to forward it the solictor handling my appeal.

Thanks for the info
Ian

[chibage]

good luck. http://www.ukvisas.gov.uk/en/ecg/chapter26/

[farneybunny]

Does this mean spouse cannot be banned from re-entering UK eventhough he/she has overstayed?

[Wanderer]

The way I read it is refusals will be reconsidered except those refusals due to contriving to frustrate the immigration rules which I assume will stand.

So I suppose it depends on whether overstaying is considered contriving to frustrate the immigration rules or not?

Seems to me to mean nothing, the catch-all is still there depending on interpretation.

Mind you i've read it so many times now I've no idea what it means...

[jei2]

By gum Chibage, I think you've hit on something !

I know what you mean Wanderer, I've read this so many times that my eyes were starting to cross. And I don't remember seeing this section at all:

26.17.5 'Contrived in a significant way to undermiine the intentions of the immigration rules' test

'Contrived in a significant way to undermine the intentions of the immigration rules' is where an applicant has previously been an illegal entrant, overstayed, breached a condition attached to his leave or used deception in a previous entry clearance, leave to enter or remain application, but only where there are aggravating circumstances. (my bold).


Aggravating factors include offences such as not complying with reporting restrictions, using multiple identities, a sham marriage, harbouring an immigration offender and facilitating/people smuggling. This is not an exhaustive list and all cases must be considered on their merits taking into account family life in the UK and the level of responsibility for the breach in the case of children. ECOs will need to obtain ECM authorisation for all refusals under Paragraphs 320(7A) and 320(7B) of the immigration rules.

*****************

I even missed the bit about reconsideration of applications refused before the concession. Oh yes and the bit about such individuals having to find out for themselves. So yaelitch is in with a chance after all.

[chibage]

I think things like overstaying and illegal working may be considered as minor if committed by family members i.e spouse etc. I also think that the fact that they are saying the eco needs to take article 8 and a right to a family life sounds positive and also that if the eco is in doubt the case will be refered to the uk for a decision. I reckon that the refusals will be for serious contriving like multiple identities, sham marriages etc. I may be wrong and perhaps its just wishful thinking so maybe frontier mole could assist us with his interpretation of these confusing rules???

[chibage]

I see positivity in this statement. Jei2 what do you think?? In addition you must not refuse an applicant 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 (paragraph 26.17.8 below); the applicant has raised human rights issues (in particular right to family life under Article which would justify issuing the entry clearance; the applicant has raised exceptional and compelling circumstances which are likely to justify a grant of leave outside the rules, you need to refer the application to NCC2 following the usual HO Referrals process (Chapter 25) for a decision to be made outside of the immigration rules; or the period specified in 26.17.2 for automatically refusing applications has expired.

[Frontier Mole]

jei2
Thanks for the direct to the other post, I have read it.

I was aware of that part of the UKvisas guidance, you might have noticed in other posts I have differentiated between "simple overstayers and failed asylum seekers who absconded"

I still of the mind that the door is still wide open for the ECO's to refuse on fairly minor infractions. Take "harboring an immigration offender" that can translate to providing accommodation to an overstayer, which if you think about the sponsor in the case of spouse or fiancée visa would be the normal practice. Where else would they be staying?? I guess that particular point will depend on the word "offender".

I am going to hold back on any positive view until I get some feedback on post 17/3/08 applications. Grant is good however until some refused on the basis of "significantly contrived" are seen it will be impossible to get an indication of where the interpretation is going.

I am still holding on to my view - "the wording is still as wooly as a flock of sheep"

Chibage,
Thanks for the earlier inclusion in your post about getting my overly inflated esteemed view. I am such a cynical person until I see a vast number of people returning easily I will remain wary of the concession.

The above quote is from the chain that I am hoping the poor individuals who get refused on significantly contrived will post their information. Not very positive I accept but for the wider good of those pending thoughts of return it is extremely important.

Link to post

http://www.immigrationboards.com/viewtopic.php?t=27094

[ipassfield]

HI,

My wife's visa application was refused 3rd April 2008 quoting 320(7b) as she left the UK voluntarily at my expense before 17th March, how do I go about getting them to reconsider the application.

I have started the appeal process but I will not even get a hearing date until October/November, she would have left the UK a year ago by then.

Anyone else in a similar position?

[jei2]

HI,

My wife's visa application was refused 3rd April 2008 quoting 320(7b) as she left the UK voluntarily at my expense before 17th March, how do I go about getting them to reconsider the application.

I have started the appeal process but I will not even get a hearing date until October/November, she would have left the UK a year ago by then.

Anyone else in a similar position?

This is an extract from the instructions to Entry Clearance Officers:

ECOs also need to reconsider applications from categories (1) to (7) which have been refused since 1 April 2008 under 320(7B). Where applications were refused solely under 320(7B), unless the applicant 'significantly contrived to frustrate the immigration rules', the original decision should be overturned and the appropriate entry clearance issued.

I expect that this is because the applicant would have been deemed, but for 320, to have met all the rules for re-entry as a spouse.

If they have cited other reasons for the refusal, it becomes more difficult because they will look to see whether they can use these reasons to uphold the original decision to refuse.

Check the refusal letter and see what grounds were cited. I suspect that some ECOs would have relied solely on 320 for refusal given the mandatory element. I suspect this is why they have been told that its not necessary for posts to contact these failed applicants and it is up to them to discover the information for themselves. Ho hum.

If your wife is in this position then request a reconsideration. If you're successful then you'll be invited to withdraw the appeal anyway. Good luck.

[jei2]

Frontier Mole

I'm staying with Chibage in the optimist's camp simply because I think the first set of guinea pigs, I mean applicants will be used to show that Liam Byrne is being firm but fair. Ergo, provided they meet the rules and avoid s/c, they'll get through.

If he doesn't then he's going to have a problem when the ID cards et al are rolled in. Not to mention the impact on those industries which EU migrants will never be interested in. Oh but I forget those single parents who will have to sign on JSA when their children reach 7. Should be lots of caring skills there...

Politicking aside I do take your point about the specifics of s/c. However I assume that the issue of harbouring an offender could not be visited on the applicant if it was committed by their British partner (since they are not the applicant), but hey what do I know?

As you say its just a case of sitting it out and hoping that someone will share their misery with us. In the meantime - just keep swimming, just keep swimming, tra la la....

[mym]

Does this mean spouse cannot be banned from re-entering UK eventhough he/she has overstayed?

Yes (or rather, they will not automatically be banned).

[IRYNA]

by the way the changing the immigration rule. Its going come to force on 30th of june.

[farneybunny]

which rules are coming in to force 30th june?

[IRYNA]

which rules are coming in to force 30th june?

http://freemovement.wordpress.com/2008/ ... ion-rules/

have a look.

[yaelhitch]

this new conession rule has been great for my husband as well because his first application was refused mainly on the grounds he overtsyaed as well as a few other bits and pieces but as he left voluntralry before 1ST OCTOBER they cannot refuse him again becasue he overstayed. However my lawyer said that this consession rule only applies till the 1st october. we can now correct the minor things that he was refused under and not wory about his overstaying as it was only by 10 months

[farneybunny]

farneybunny wrote:
Does this mean spouse cannot be banned from re-entering UK eventhough he/she has overstayed?


Yes (or rather, they will not automatically be banned).

We're planning to go to Italy to get married and come back here for 2 days to clean up the house (and btw the tickets to fly from here to Malaysia are cheaper as well ) before flying to Malaysia to live there for a couple of years. So does this means when we come back from Italy, they cannot refuse me re-entering (I'm from Malaysia and we don't need visa to come as tourists for 6months) at immigration control? Will they have to allow me back in? or is there any possibility they can do something about it being that i'm an overstayer? My sons holds Italian passport btw. We planning to show the tikcets to Malaysia to prove that we're only coming back in for couple of days and leaving after that.