VictoriaS wrote:This is VERY disturbing. Amanda - have you come across this before? Can refusal on these grounds be appealled?
Until seemingly now, it was policy to allow those who had previously overstayed to enter as a spouse providing they fitted all the rules. If they are now changing this, a lot of people are going to have some serious problems.
Victoria
They aren't changing it precisely, I think. The previous policy seemed to be not to consider the general grounds, and allow an overstayer to enter as a spouse considering the matter on the spouse rules only.
Like you, Victoria, I've NEVER come across a refusal for a spouse visa on the public policy grounds for overstaying.
It will be an appealable decision, under the normal rules. The relevant Rule reads:
Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
.......
(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;
The refusal on these grounds does appear to be on both (11) and (12). The suggestion is that as well as overstaying, there was also a deception on the student entry clearance application.
The published policy hasn't changed. It states:
13. 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.
It must be borne in mind that where a current entry clearance is held, leave to enter is not to be refused except in the circumstances described in Paragraph 321 of HC 395 (see Section 3 to this chapter).
14. PARAGRAPH 320(12) - OBTAINING PREVIOUS LEAVE BY DECEPTION
In assessing whether or not refusal under this paragraph is justified, it will be relevant to consider whether disclosure of the true facts would have resulted in refusal. Where, for example, the person concerned has failed to disclose certain facts in the course of a previous application for leave, refusal is unlikely to be justified if those undisclosed facts had no bearing on his application. On the other hand, where it is shown that he misrepresented the truth in respect of facts which were relevant to his case, refusal would be justified.
I am not aware of any relevant case law in relation to spouses etc. I've checked on EIN, and can't see anything there either.
I have wondered in the past why the ECOs don't apply the general grounds for normally refusing to spousal applications, but in my experience they don't.
Who knows what view the AIT may take? Hard to guess, really.
However, I've not seen anything to suggest this is a general change, so we'll have to wait and see. It could just be one ECO.
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.
People should always consider obtaining professional advice about their own particular circumstances.
