Mandatory Refusals - Unoftunately, it is now a reality

[IMMIGRATION LAWYER]

I have now come accross a number of Entry Clearances refusals (Settlement applications, lodged in MARCH 2008, following previos overstay, no removal or criminal issues etc) where the High Commusison would rely upon the mandatory refusal rules under para 320 (7).

That means that the BHCs disregard the decision of the House of Lords from the 17th March 2008 which states that there IS a gracce period for overstayers and that they should not be punished and that the provisions of the manadatory refusals must only be applied when a person leaves the UK after the 1st October 2008.

In other words, the BHCs do not follow the discretion, which has been confirmed by the HL.

That means that a lot of people, who trusted the governemnt and returned to the countries in order to regularize their imigration statuses have yet again been betrayed.

[ricky]

i think anyone left between 1 st april and 1 st October will benefit from this 6 months concession anydate before that : NO
i noticed in your post you wrote : application 17th of March)
anyone left before and applied in march will have autmatic ban thats what a lawyer explained to me
1APRIL UNTIL 1 OCTOBER

any overstayer who left volantarly (btwn 1st april- 1 st october ) need to keep his tickt when he left that s a proof that he left and paid for it
and in the application for re entry need to be included with immigration history and a letter expalining : that the person left during concession time

[tasha75]

That means that a lot of people, who trusted the governemnt

Anyone still trusts this goverment?

[aka189]

i think anyone left between 1 st april and 1 st October will benefit from this 6 months concession anydate before that : NO
i noticed in your post you wrote : application 17th of March)
anyone left before and applied in march will have autmatic ban thats what a lawyer explained to me
1APRIL UNTIL 1 OCTOBER

any overstayer who left volantarly (btwn 1st april- 1 st october ) need to keep his tickt when he left that s a proof that he left and paid for it
and in the application for re entry need to be included with immigration history and a letter expalining : that the person left during concession time

Anyone who left between 17 March and 1 October will benefit from the grace period.

That is any one left before 17 March will not be benefitted and anyone left after 1 October will not be benefitted as well.

See this link http://www.ilpa.org.uk/HC%20321%20Minis ... 202008.pdf

[IMMIGRATION LAWYER]

That what they relied upon.

At the samne time that was the main reasons for refusal as well as the BHC clearly written that there were posters in teh Visa Application Centres that anyone who overstayed would be banned for a fixed period.

It is not just the matter whether the BHC knew. They went much ahead and put POSTERS about mandatory refusals on the walls !

I will be advising those people to appeal.

[ricky]

those people who left paid for their own ticket if they get banned
i am sure they have the right to appeal
in my case my solicitor wrote a notarized letter explaining in details that i am paying for my ticket, the HO wont spend any public funds on me leaving , also in the letter it states clearly the date of filght which is btw april and october , it costs me 100 pounds but it s worth it in case the embassy try to apply any automatic ban i will have proof to appeal

[jei2]

My worry is that Liam Byrne's assurance of an "amnesty" period seems to be couched in ambiguity. ECOs may therefore believe that they are applying 320 (7B) correctly.

Note the following extract from his letter to ILPA:

You will be aware that paragraph 320 of the Immigration Rules only applies to applications for leave to enter (including entry clearance applications).

It therefore has no bearing on how we deal with applications by overstayers.

I can, however confirm that we will not use paragraph 320 (7B) to refuse someone for a past breach of our immigration laws if, subsequent to that breach, we granted them leave to enter or remain. Therefore, a student who overstayed but was granted leave following an out of time application would not be subject to a re-entry ban on the basis of that overstaying.

God only knows what he's playing at. Maybe I'm missing something here but if there isn't more clarification on this soon, especially about how ECOs are treating applications, this so-called amnesty is going to do nothing more than to create even more overstayers in the UK.

And let's not even start on the IS151Bs (removal decisions) that are being issued with the IS151As. What a nightmare this initiative is going to be. I predict a very busy AIT.

[jei2]

And here's another interesting bit from Liam's letter:

We do not intend to create a new scheme to pay the costs of those who are unable to fund their own departure.

That said, the concession will extend to people who leave under our existing assisted voluntary return programmes. As I said earlier though, the concession is strictly time limited, so those who wish to apply for public funding to return should do so in good time, so that they can leave by 1 October.

Anyone here for VRP?

[Twin]

My worry is that Liam Byrne's assurance of an "amnesty" period seems to be couched in ambiguity. ECOs may therefore believe that they are applying 320 (7B) correctly.

Note the following extract from his letter to ILPA:

You will be aware that paragraph 320 of the Immigration Rules only applies to applications for leave to enter (including entry clearance applications).

It therefore has no bearing on how we deal with applications by overstayers.

I can, however confirm that we will not use paragraph 320 (7B) to refuse someone for a past breach of our immigration laws if, subsequent to that breach, we granted them leave to enter or remain. Therefore, a student who overstayed but was granted leave following an out of time application would not be subject to a re-entry ban on the basis of that overstaying.

God only knows what he's playing at. Maybe I'm missing something here but if there isn't more clarification on this soon, especially about how ECOs are treating applications, this so-called amnesty is going to do nothing more than to create even more overstayers in the UK.

And let's not even start on the IS151Bs (removal decisions) that are being issued with the IS151As. What a nightmare this initiative is going to be. I predict a very busy AIT.

jei2, are you saying those who have been served is151b but leave voluntarily will not benefit from the concession?

[jei2]

Well Twin,

According to Liam Byrne they're supposed to benefit. His letter to ILPA continues:

I covered the issue of people being served with enforcement decisions while leaving the UK when I wrote to you on 29 February. People who are leaving voluntarily should generally be served with form IS151A (Part1) confirming their status and not with an IS151A (Part 2) or an IS151B, which are removal decisions.

Nevertheless, even if somebody was served with a removal decsion while leaving voluntarily, this will not mean that he or she will be treated for the purpose of the re-entry ban as having been removed from the UK. It is perfectly possible for a person to leave voluntarily after being served wtih a removal decision, but it is only those who are actually removed or deported who will be subject to the ten year ban. Our guidance to Entry Clearance Officers makes this point clear.

Personally I think its going to be panic stations for a couple of months while "don't have a clue" decisions are made by ECOs.

There also seems to be a belief that the concession only applies to those who left within the 28 day overstaying period. Everyone else - depending on how and by what financial means they exited the UK will be penalised. Aaargggh !

I just hope someone will post news of a successful return to the UK here to give others some encouragement.

[Twin]

Well Twin,

According to Liam Byrne they're supposed to benefit. His letter to ILPA continues:

I covered the issue of people being served with enforcement decisions while leaving the UK when I wrote to you on 29 February. People who are leaving voluntarily should generally be served with form IS151A (Part1) confirming their status and not with an IS151A (Part 2) or an IS151B, which are removal decisions.

Nevertheless, even if somebody was served with a removal decsion while leaving voluntarily, this will not mean that he or she will be treated for the purpose of the re-entry ban as having been removed from the UK. It is perfectly possible for a person to leave voluntarily after being served wtih a removal decision, but it is only those who are actually removed or deported who will be subject to the ten year ban. Our guidance to Entry Clearance Officers makes this point clear.

Personally I think its going to be panic stations for a couple of months while "don't have a clue" decisions are made by ECOs.

There also seems to be a belief that the concession only applies to those who left within the 28 day overstaying period. Everyone else - depending on how and by what financial means they exited the UK will be penalised. Aaargggh !

I just hope someone will post news of a successful return to the UK here to give others some encouragement.

...but those who leave in that time period are not overstayers and cannot be regarded as such.

[jei2]

Twin,

You may know that and I may know that but if this is the view being bandied about by at least one immigration officer (unfortunately its just hearsay) I'm still worried about how 320(7B) is going to be interpreted.

I really hope I'm just being pointlessly pessismistic.

[thsths]

And let's not even start on the IS151Bs (removal decisions) that are being issued with the IS151As. What a nightmare this initiative is going to be. I predict a very busy AIT.

I agree, but I wonder whether maybe that is the whole point of the exercise. Mr Byrne is not exactly quiet about the fact that he disagrees with the way that "his" laws are interpreted by judges. So maybe he just wants to give them a bit more work, and sabotage the system by overloading the tribunals. After all, what good is an appeal if it takes a year or more to get there?

Life has to go on, and Mr Byrne clearly shows no appreciation for the time and effort that is required of immigrants. I would not be surprised if a lot of the rejected overstayers do not have the time and money for an appeal, so they will never get their right.

Tom

[aka189]

But the new rules are designed in such a way that it restricts the power of the Immigration Judges. So AIT will be definitely busy but the homeoffice will win most of the cases as these new laws are mandatory refusals and restricts Judges' descretion.

So Liam Byrne has done very good job in drafting these new laws so that the homeoffice will benefit from them and they will definitely be benefitted.

[johnboy096]

Oh boy, what a mess!!!

[Twin]

But the new rules are designed in such a way that it restricts the power of the Immigration Judges. So AIT will be definitely busy but the homeoffice will win most of the cases as these new laws are mandatory refusals and restricts Judges' descretion.

So Liam Byrne has done very good job in drafting these new laws so that the homeoffice will benefit from them and they will definitely be benefitted.

They most certainly will not be able to put forward a ground to challenge the ECO on immigration rules but they definitely can fight their article 8 grounds.

However, I do agree with thsths that a good number of the overstayers would not be able to afford the appeals that they would eventually abandon it. This is exactly Liam's aim.

[jei2]

Except that he's got to get them all to leave first. And if it's just about getting overstayers out of the country and not letting them back in word will soon spread.

Then all those who've overstayed for less than 28 days and who might have gone back will dig their heels for fear that they'll never be allowed back in either. You'll just get more people going underground.

It just doesn't make any sense....

[chrissy]

Ok so the new rules have come into effect and apply to everyone who left before 1st April. Now the rules say that one will be bammed for up to 1,5 or 10years from when they left the UK.

Am I correct to say them that if you apply 1 year after you left, you can not be banned? Or will the ban run for a year from when you apply?

Please clarify for me.

[jei2]

Ok so the new rules have come into effect and apply to everyone who left before 1st April. Now the rules say that one will be bammed for up to 1,5 or 10years from when they left the UK.

Am I correct to say them that if you apply 1 year after you left, you can not be banned? Or will the ban run for a year from when you apply?

Please clarify for me.

Not sure what you mean by the first sentence. The concessionary period runs from 17 March to 1 October 2008.

In terms of banning periods, the following should give some clarification:


http://www.immigrationboards.com/viewtopic.php?t=26183

[chrissy]

Thanks for the link....

Ok does that mean, if you left the UK voluntarily at your own expense, 12 months ago, the ban doesn't apply to you?

[jei2]

It shouldn't do.

However the general grounds for refusal in Entry Clearance Guidance still include overstaying with no mention of any concessionary period.

And according to UK visas the ban starts from 1 April 2008 and not 2 October 2008.

Hmm...