first 10 year exclusion decison letter seen

[jei2]

For anyone who's interested this is the standard wording on a refusal letter I've just seen (reprinted with permission and dates changed).


Your application fails to be refused under paragraph 320(7B) of HC 395:

(7B) where the applicant has previously breached the UK's immigration laws by:
(a) overstaying
(b) breaching a condition attached to his leave
(c) being an illegal entrant
(d) using deception in an application for entry clearance, leave to enter or remain (whether successful or not)

unless the applicant:

(i) overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State
(ii) used deception in an application for entry clearance more than 10 years ago
(iii) left the Uk voluntarily, not at the expense (directly or indirectly) of the Scretary of State, more than 12 months ago
(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago or
(v) was removed or deported from the UK more than 10 years ago.

Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.

You initially went to the UK on 26.06.04 as a student. Your student visa expired on 29.09.07 and you failed to make any applications to the Home Office for an extension of your stay. You were encountered by the police and immigration service on 14.01.08 and you were served with Immigration papers 1S151 as an overstayer. You were removed from the UK at public expense on 18.01.08.

I am therfeore refusing you entry clearance under paragraph 320(7B) of the Immigration Rules. Any future applications will also be automatically refused, for the same reason, under paragraph 320 (7B) of the Immigration Rules until 18.01.2018.

Given these facts, I have not assessed your application under the paragraph of the rules you have applied for. If a decision is made in the future to overturn this refusal decision, an Entry Clearance Officer will assess your application under the relevant paragraph for the category of visa you have applied for.


You are entitled to appeal against this decision under section 82(1) of the Nationality Immigration and Asylum Act 2002. etc etc

[tasha75]

That is very harsh for an overstay of only a few months.
10 years? You might be a successful businessman/ professional etc. in a couple of years but you'll be haunted by your silly students mistakes forever.
Who might lose more, the person or the UK?

[jei2]

Equally harsh if you're a dependent child who is removed with a parent and who reaches 18 during the 10 year exclusion period.

In the meantime, while the overstayers are leaving or being removed, the Highly Skilled Migrants are beginning to stay away and the EU migrants are returning home.

Interesting times ahead for the UK.

[bani]

I work for a university and we were given this warning by our human resources department last year. No one should let their visa lapse by more than 28 days. It's sad that this student did not leave voluntarily, he could have just been banned for 12 months.

[Hollie-Lee]

My boyfriend got caught after claiming asylum, being refused and then overstaying two years. He is due to be deported, but i'm trying to pay for his flight so he can leave voluntarily.
When we get married in Turkey and apply for a spouse visa asap, is he likely to be issued with this notice?
Hes never used deception, but he did come into England on a lorry 5 years ago!!!
Help

[chrissy]

For anyone who's interested this is the standard wording on a refusal letter I've just seen (reprinted with permission and dates changed).


Your application fails to be refused under paragraph 320(7B) of HC 395:

(7B) where the applicant has previously breached the UK's immigration laws by:
(a) overstaying
(b) breaching a condition attached to his leave
(c) being an illegal entrant
(d) using deception in an application for entry clearance, leave to enter or remain (whether successful or not)

unless the applicant:

(i) overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State
(ii) used deception in an application for entry clearance more than 10 years ago
(iii) left the Uk voluntarily, not at the expense (directly or indirectly) of the Scretary of State, more than 12 months ago
(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago or
(v) was removed or deported from the UK more than 10 years ago.

Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.

You initially went to the UK on 26.06.04 as a student. Your student visa expired on 29.09.07 and you failed to make any applications to the Home Office for an extension of your stay. You were encountered by the police and immigration service on 14.01.08 and you were served with Immigration papers 1S151 as an overstayer. You were removed from the UK at public expense on 18.01.08.

I am therfeore refusing you entry clearance under paragraph 320(7B) of the Immigration Rules. Any future applications will also be automatically refused, for the same reason, under paragraph 320 (7B) of the Immigration Rules until 18.01.2018.

Given these facts, I have not assessed your application under the paragraph of the rules you have applied for. If a decision is made in the future to overturn this refusal decision, an Entry Clearance Officer will assess your application under the relevant paragraph for the category of visa you have applied for.


You are entitled to appeal against this decision under section 82(1) of the Nationality Immigration and Asylum Act 2002. etc etc

Jei2, thanks for this, but is the wording (in bold) at the beginning correct? It doesnt seem to make sense. Is it just me?

[martha]

Hollie Lee -Lots of failed assylum seekers have returned home and have been successful with a spouse visa. But the ones I knew about, my husband being one, was before the new Immigration Ruling this year.
Check with an immigration solicitor who can explain it fully.
Hope this is helpful

[jei2]

Crissy

Sorry, that's just my typo in making the amendment - it should read "falls to be refused" not "fails".

Well done to you for picking that up.

Must keep my optician's appointment..

[Frontier Mole]

Hollie Lee -Lots of failed assylum seekers have returned home and have been successful with a spouse visa. But the ones I knew about, my husband being one, was before the new Immigration Ruling this year.
Check with an immigration solicitor who can explain it fully.
Hope this is helpful

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If he entered as an illegal but claimed asylum immediately, he might have had a fighting chance. As an overstayer - assumed avoiding availing himself for removal after his failed asylum claim he has made the situation much worse. No way is an ECO going to grant a visa based on being an overstaying Turkish failed asylum seeker. You might have a chance at appeal, however with the new rules yet to be tested to any degree, hard to say.

I would expect that you will be refused even if you pay for the flight home. Your best bet is still to do so but do not expect the fact he returned home at his own cost to be the crux of the sucessful visa application. ECO's do not take kindly to the set of circumstances you outlined, illegal entry, failed asylum claim then "disappearing" all amount to a big no no.

[jei2]

If he entered as an illegal but claimed asylum immediately, he might have had a fighting chance. As an overstayer - assumed avoiding availing himself for removal after his failed asylum claim he has made the situation much worse. No way is an ECO going to grant a visa based on being an overstaying Turkish failed asylum seeker. You might have a chance at appeal, however with the new rules yet to be tested to any degree, hard to say.

I would expect that you will be refused even if you pay for the flight home. Your best bet is still to do so but do not expect the fact he returned home at his own cost to be the crux of the sucessful visa application. ECO's do not take kindly to the set of circumstances you outlined, illegal entry, failed asylum claim then "disappearing" all amount to a big no no.

What's the issue with being Turkish?

And what's the point of the concessionary period? Since Liam Byrne has already confirmed that those granted a period of lawful leave subsequent to a breach will not be subject to re-entry bans.

Unless you're suggesting that ECOs and IOs are being given different instructions regarding overstayers.

[William Blake]

I don't ubnderstand this. Where did they apply this rule? What country? I thought it was the case that those rules did not come into force until October 2008.

http://freemovement.wordpress.com/2008/ ... immigrants

[William Blake]

Just reading the concession now again:

“A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.



So because this chap did not go voluntarily he was banned for ten years. So the rules / ban are in place for people who are caught. I see.

[Hollie-Lee]

I understand people are obviously saying I stand very very little chance of ever getting him back in this country? I thought that if I pay for his flight and he leaves 'voluntarily' then he won't be penalised?
But are people saying that immigration officers are using the rules ALREADY before when they are supposed to come into law?
It says they are giving ILLEGAL people a chance to leave, and thats what he is. He came in on a lorry and wanted to get caught so that he could claim asylum. He claimed straight away and lived here over 3 years legally whilst court cases were going through. Does this give him more of a chance? I think if it was to fail on anything, it would be the fact he went on-the-run so to speak for nearly 2 years before being caught and breaking the laws given to him by immigration.
Is it likely to make things worse if he mentions there are wars in turkey at the moment when he applys for his spouse visa and thats why we cant live there? I just need help off someone who knows more about immigration than me. Does anyone know someone who was similar to my boyfriend but managed to come back to England?
William Blake, I dont really understand what you have wrote.
He has never used deception and has always used his real name, so surely this has to be one positive thing...

[Frontier Mole]

What's the issue with being Turkish?

And what's the point of the concessionary period? Since Liam Byrne has already confirmed that those granted a period of lawful leave subsequent to a breach will not be subject to re-entry bans.

Unless you're suggesting that ECOs and IOs are being given different instructions regarding overstayers.[/quote]

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The "concession" is the important word here. Those that have dealt with concessionary elements of immigration policy in the past with the HO/IS/BIA/UKBA will no doubt be aware of how one sided the view can be. The individuals who avail themselves to the concession are going to find that out. Nice simple student or visitor overstayers, are probably going to find things much easier than failed asylum seekers from certain countries.

Why certain countries for asylum claims - there is a group of countries that are seen to abuse the asylum process more than others. Turkey is certainly one of these countries. Here is the rub - a very general view - a high proportion of Turkish asylum claims will be down the “I am a Kurd and I am persecuted etc etc." Their claims are dealt with, invariably refused, appealed mostly to be dismissed. In this process the line maintained will be I am from Kurdish part of Turkey, moved to Istanbul (the excuse for not speaking Kurdish) on and on it goes.

The story so far.
You return to Turkey, thinking concession - that will do me nicely. You wander up to the ECO; they have your history and can get the details of your asylum claim. Suddenly the Turkish ID / birth papers you put in show they were not born where you say you were. Bang - deception. Refusal - and don’t bother me for ten years.

Not for one minute do I believe that will not be the case. Some people are getting the impression that this is an overseas amnesty scheme. It is not. The sins of the past may be washed away, those with very dirty records are not going to find themselves with shiny new records. The price of a ticket home is not the price of a fresh clean record.

[jei2]

Frontier Mole,

I take your point.

I have no doubt that the end result of each failed application under the concession will be the creation 100 more overstayers. in all honesty I think this concession is dead in the water. So shoot me - I'm a a cynic in optimist's clothing.

The concession is in two parts - as well as leaving between the relevant period the applicant must also not have frustrated the immigration rules for example by conducting a bogus marriage. I'm sure this will be open to subjective definitions. I'll be pleased if someone can prove me wrong.

Also ECOs are also instructed to try and get additional reasons other than 320 into their refusal letters. This is because if 320 (7B) is the only reason for refusal and an applicant wins their appeal on this entry clearance must be granted.


Hollie-Lee,

I don't know if you'll be allowed to pay for your partner's flight at this stage.

I say this because the other end side of the concessionary coin is that the government will want to show the electorate that the penalties are working.

If your boyfriend becomes a statistic of this, he will not have left voluntarily. He will therefore fall under the mandatory ban of 10 years. Or has he already been given the option of leaving voluntarily?

[William Blake]

Sorry for any confusion Hollie.

What I was saying is that it seems as if the overstayer leaves without being caught and seeks entry clearance from aborad then before October 2008 they won't be automatically refused. But apparently if the person is caught before October 2008 the ban will apply. It looks like that is what has happened in this case.

Is your bf in detention now. Isn't there any legal avenue? High court?

[William Blake]

I just think some of these immigration officers are trigger happy. I understood that the new rules were to come into effect from April. And I would have thought that it would apply to people leaving after the new rules came into effect. But from the letter above even though the applicant was removed in January they still applied the rules to him.

[jei2]

William Blake,

That's because they're going to be applied retrospectively.

Liam Byre has already made it clear (and it's now in the Entry Clearance Guidance) that the concession is time-limited to voluntary departures between 17 March 2008 - 1 October 2008 inclusive. But it only relates to mandatory refusals. An ECO could still refuse on discretionary grounds.

So the dreaded "balance of probabilities" can still rear its ugly subjective head. Oh what fun.

[William Blake]

In my case my ILR was refused and is now back with Home Office for reconsideration. Depending on the result further legal action will be pending. Meanwhile my former employer is seeking a work permit for me and my leave has expired in the meantime. I plan then to leave and seek re-entry before October 2008 as a work permit holder. Is it the case that I could be hit with this ban when I apply for entry clearance?

[jei2]

You shouldn't be.

Just check that you're still in the skills shortage list before you go.

[IMMIGRATION LAWYER]

I have seen a few of those, too.

One poor soul put a tick in th wrong place ! Immidiate refusal under para 320 - DECEPTION = 10 year ban !

[chrissy]

Out of curiosity, has the rule 320 7A always existed? Has 7B been introduced to support it?

[jei2]

Out of curiosity, has the rule 320 7A always existed? Has 7B been introduced to support it?

Both 7A and 7B are in italics on the Home Office website. This means that they are recent additions to the rules.

7A relates to the mandatory 10 year penalty for deception and was introduced on 29 February 2008.