New Immigration Rules include 13 May 2008 concession, exemption

Under the recent Statement of Changes in the immigration rules, HC 607, which is effective from 30 June 2008, the UK Border Agency includes a new rule, rule 320 (7C). This implements into the Immigration Rules a concession made by the government in respect of the re-entry bans announced in the controversial new general grounds for refusal which were included in HC 321. The new rule covers the concession Liam Byrne MP announced in the House of Commons on 13 May 2008. It states:

320(7C)
Paragraph 320(7B) shall not apply in the following circumstances:
(a) where the applicant is applying as:
(i) a spouse, civil partner or unmarried or same-sex partner under paragraphs 281 or 295A,
(ii) a fiancé(e) or proposed civil partner under paragraph 290,
(iii) a parent, grandparent or other dependent relative under paragraph 317,
(iv) a person exercising rights of access to a child under paragraph 246, or
(v) a spouse, civil partner, unmarried or same-sex partner of a refugee or person with Humanitarian Protection under paragraphs 352A, 352AA, 352FA or 352FD; or
(b) where the individual was under the age of 18 at the time of his most recent breach of the UK?s immigration laws.

This particular concession will now appear in the Immigration Rules, in addition to the entry clearance guidance and the parliamentary reports, which previously were the only places the concession was published.

Another concession whereby rule 320(7B) will not be applied to people who leave the UK before 1 October 2008, is not included in the rules, as this concession is clearly time limited.

Also included in the recent Statement of Changes is rule 320(11). This places the exemption to the two concessions into the Immigration Rules, stating:

320(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.

The explanatory notes to the Statement of Changes state that "an example could be a person who has entered into a bogus marriage". There is already seperate Entry Clearance Guidance which suggests that there must be aggravating factors for the exemption to the concessions to apply.

Many will find confort in the fact that Immigration control cannot conflict with Human Rights. Someone leaving the UK and making an application to come back in order to rejoin their family which may be settled here will not suffer significant interference to their family life, if the visa application they make in order to return succeeds. If such an application is rejected by the application of rule 320(11), then it may be argued that their has been an interference to family life.

If you require professional legal advice and assistance with the complex area of UK Immigration, contact fastUKpermit lawyers today.