General grounds for refusal: contriving to frustrate the intention of the rules

Sometimes a migrant here in the UK unlawfully will want to apply for immigration status. Lawyers and the Home Office often call this “regularising” their status, because the person becomes a “regular” migrant within the rules rather than an “irregular” one outside the rules. One of the ways to do this is by leaving the country and making an application for entry clearance from outside the UK.

Changes to the immigration rules, however, have made it successively harder and harder to acquire lawful status after being unlawfully present in the UK. One of the provisions that can make this difficult is paragraph 9.8.2 of Part 9 of the immigration rules.

Paragraph 9.8.2: contriving to frustrate the intentions of the rules

Paragraph 9.8.2 of Part 9 of the immigration rules is a discretionary ground for refusal. It provides that entry clearance or permission to enter the United Kingdom may be refused where:

(a) the applicant has previously breached immigration laws; and

(b) the application was made outside the relevant time period in paragraph 9.8.7; and

(c) the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding. 

This provision also applies to visitors as Appendix V: Visitors imports Part 9 into those rules.

The “relevant period in paragraph 9.8.7” is the section of the rules that deals with re-entry bans. For example, if the applicant overstayed but left at their own expense, they will be refused certain types of entry clearance applications if they are made before they have completed 12 months outside the UK. If the applicant used deception in an application, the ban is for 10 years. Re-entry bans do not apply to human rights applications, such as those made under Appendix FM, though importantly, applicants can still be refused under paragraph 9.8.2.

If the applicant is still within the period of their re-entry ban, the application will be refused without any further consideration given to whether they frustrated the intention of the rules, unless it is one to which the re-entry bans in paragraph 9.8.7 do not apply, such as an Appendix FM application. If the re-entry ban is behind them, the decision maker will then consider whether the paragraph applies.

The new rules also carve out exceptions for children and short periods of overstaying:

9.8.4. In paragraphs 9.8.1, 9.8.2, 9.8.3, and 9.8.3A, a person will only be treated as having previously breached immigration laws if, when they were aged 18 or older, they:

(a) overstayed their permission and neither paragraph 9.8.5. nor paragraph 9.8.6. apply; or
(b) breached a condition attached to their permission and entry clearance or further permission was not subsequently granted in the knowledge of the breach; or
(c) were (or still are) an illegal entrant; or
(d) used deception in relation to an application (whether or not successfully).

9.8.5. A period of overstaying will be disregarded for the purpose of paragraph 9.8.4. (a) where the person left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, and:

(a) the person overstayed for 90 days or less, where the overstaying began before 6 April 2017; or
(b) the person overstayed for 30 days or less, where the overstaying began on or after 6 April 2017; or
(c) paragraph 39E applied to the period of overstaying.

9.8.6. A period of overstaying will be disregarded for the purpose of paragraph 9.8.4.(a) where the overstaying arose from a decision to refuse an application, or cancellation of permission, which was subsequently withdrawn, or quashed, or reconsidered by direction of a court or tribunal, unless the legal challenge which led to the reconsideration was brought more than 3 months after the date of the decision to refuse or cancel.

The “contriving to frustrate” rule imposes a three-stage test:

1. First of all, did the applicant breach immigration laws in one of the specified ways;
2. If so, are there additional “aggravating circumstances”;
3. If so, the decision maker still needs to consider whether to refuse; refusals under this paragraph of the rules are not mandatory.

To reiterate, even where a person has previously contrived in a significant way to frustrate the intentions of the immigration rules, they might still be admitted to the UK. Unlike the previous version of the rule, which said that the application “should normally” be refused, the new version simply says “may” be refused, which removes the presumption that a refusal would normally be appropriate.

Immigration law breaches that might trigger refusal

When considering an entry clearance application, immigration officials will carefully consider whether an applicant has engaged in what officials call “adverse behaviour.” As well as looking at the information presented in the application itself, officials are instructed always to perform the standard Home Office checks, which are:

• Home Office security checks
• other security checks
• Police National Computer (PNC)
• internal Home Office systems
• information on the application form

The list of immigration law breaches which might trigger this provision is a finite and exhaustive list. “Previously breached immigration laws” is defined in paragraph 6.2 of the rules as follows:

a person previously breached immigration laws if they overstayed or used deception in relation to a previous application for entry clearance or permission.

Interestingly, the Home Office guidance defines this differently:

A person will have previously breached the UK’s immigration laws if, when aged 18 or over, they have:

• overstayed (unless an exception applies)
• breached a condition of their permission
• been, or are, an illegal entrant (‘illegal entrant’ includes those who have attempted to enter illegally)
• used deception in an application for entry clearance or permission to enter (whether the application was successful or not)

This is in line with the para 6.2 definition of “breach of immigration laws”:

a person is in breach of immigration laws for the purpose of these rules where the person is an overstayer; is an illegal entrant; is in breach of a condition of their permission; or used deception in relation to their most recent application for entry clearance or permission

Because para 9.8.2 uses the “previously breached immigration laws” wording, it is arguable that it cannot be applied in cases where the breach in question is a breach of a condition or illegal entry, as guidance cannot impose stricter requirements on an applicant than that which is found in the Rules.

However, given that the Home Office is clearly taking a different approach here and this reflects the previous iteration of this rule, it’s better to proceed on the basis that the broader definition applies, though I would be tempted to raise this point at any relevant appeal or judicial review.

If a behaviour by the person concerned is not listed here then paragraph 9.8.2 is not engaged at all.

To put it another way, these behaviours represent the minimum required to trigger a refusal under this paragraph. However, they are not sufficient to justify refusal without more. Aggravating circumstances are also required, though paragraph 9.8.2 seems to suggest that simply “contriving to frustrate the intentions of the rules” is sufficient (my emphasis):

(c) the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding.

We’ll turn to aggravating circumstances in a moment though I would like to pause to point out the clumsy drafting of the paragraph as it seems to treat “contriving to frustrate the intentions of the rules” as though it were a separate criterion, sufficient to refuse the application without the presence of aggravating factors. Not only is that not how the previous version of this rule operated but it’s also not how the Home Office guidance interprets it (my emphasis):

When the circumstances of the previous breach of immigration laws are also aggravated by other actions with the intention to deliberately frustrate the rules, you must consider refusing entry clearance or permission.

This means when an applicant has done one or more of the following:

• been an illegal entrant
• overstayed
• breached a condition attached to their leave
• used deception in a previous application
• obtaining:
  • asylum benefits
  • state benefits
  • housing benefits
  • tax credits
  • employment
  • goods or services
  • National Health Service (NHS) care using an assumed identity or multiple identities or to which not entitled

and there are aggravating circumstances, such as:

• absconding
• not meeting temporary admission/reporting restrictions or bail conditions
• failing to meet the terms of removal directions after port refusal of leave to enter
• or illegal entry
• previous working in breach on visitor conditions within short time of arrival in
• UK (indicating a deliberate intention to work)
• receiving benefits, goods or services when not entitled
• using an assumed identity or multiple identities
• getting NHS care to which they are not entitled
• attempting to prevent removal from the UK, arrest or detention by Home Office
• or police
• escaping from Home Office detention
• switching nationality
• troublesome or frivolous applications
• not meeting the terms of the re-documentation process
• taking part, attempting to take part, or facilitating, in a sham marriage or
• marriage of convenience
• harbouring an immigration offender
• people smuggling or helping in people smuggling

So a refusal under this provision requires a “trigger behaviour” in the form of an immigration breach plus the presence of at least one “aggravating circumstances”. It’s thus unclear what is meant by “previously contrived in a significant way to frustrate the intention of the rules” as a separate provision in paragraph 9.8.2, as this is neither defined in the rules nor the guidance. It appears to be a drafting error. 

Obtaining services or support to which they were not entitled

Given that the presence of “aggravating circumstances” is required to refuse under the paragraph, in addition to having “previously breached immigration laws”, it’s entirely unclear where the addition of “receiving services to which the applicant is not entitled to” comes from. There is no clear basis for this in the rules. This was also present in the previous version of the guidance, before Part 9 came into force, and it was equally incorrect then.

It may be the case that receiving those services is linked to a “trigger behaviour” under paragraph 9.8.2. For example, an applicant with leave with a condition of “no recourse to public funds” would breach a condition of their leave by claiming state benefits.

In all other cases, however, receiving services or support to which one is not entitled should be seen as an “aggravating circumstance”, not as a trigger behaviour. If there is no trigger behaviour, then receiving a service to which one is not entitled cannot attract a refusal under paragraph 9.8.2.

Aggravating circumstances

Even when paragraph 9.8.2 is engaged because the applicant previously breached immigration rules in one of the specified ways, the entry clearance officer needs to decide whether there were “aggravating circumstances.”

The natural meaning of the words makes clear that it must be something serious in addition to the trigger behaviour of breaching the rules in of the specified ways. This is reinforced by paragraph 9.8.2 itself, which sets out some non-exhaustive examples of what might be counted as circumstances which are aggravating:

a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding.

This examples are all relatively serious forms of breaches of immigration law.

Home Office policy builds on these examples and adds various other types of behaviour the Home Office considers comparable. These include (again, this is not an exhaustive list):

• absconding
• not meeting temporary admission/reporting restrictions or bail conditions
• failing to meet the terms of removal directions after port refusal of leave to enter or illegal entry
• previous working in breach on visitor conditions within short time of arrival in UK (indicating a deliberate intention to work)
• receiving benefits, goods or services when not entitled
• using an assumed identity or multiple identities
• getting NHS care to which they are not entitled
• attempting to prevent removal from the UK, arrest or detention by Home Office or police
• escaping from Home Office detention
• switching nationality
• troublesome or frivolous applications
• not meeting the terms of the re-documentation process
• taking part, attempting to take part, or facilitating, in a sham marriage or marriage of convenience
• harbouring an immigration offender
• people smuggling or helping in people smuggling

The guidance goes on to confirm that entry clearance officers must consider all cases on their merits:

You must consider all the circumstances of the case. Factors which may be relevant to your decision include:

• why and how did the breach happen
• if a condition was breached, the period between the condition being imposed and the breach
• the period since the breach
• any other circumstances, such as the impact of a refusal on the individual or their family living in the UK

Example

George entered the UK on a student visa valid until 1 October 2022. He did not make any application to renew his leave. On 15 November 2022, he returned home, paying for his own ticket.

George has overstayed in the UK, and therefore meets the first stage of the test under paragraph 9.8.2. However, if there are no aggravating circumstances and, apart from the period of overstay, George has always complied with the conditions of his student leave, hasn’t broken the law etc, he will not meet the second stage of the test. If he makes a new application to enter the UK as a Student, therefore, his application should not be refused under paragraph 9.8.2 of the Immigration Rules, provided he applies once the 12 month re-entry ban expires.

Example

Nancy entered the UK unlawfully on 12 March 2018. She is an illegal entrant and therefore meets the first stage of the test under paragraph 9.8.2 (under the Home Office’s interpretation). Nancy never had valid leave while in the UK. On 5 May 2018, she is caught by an immigration officer and given reporting restrictions; she needs to sign at Becket House every other Thursday. Nancy never reports at Becket House. She then submits an application for leave using a false identity. This application is refused and Nancy is given removal directions on 1 September 2019. She ignores them and remains in the UK until 1 November 2020, when she decides to return home.

It is likely that any new application for a visa that Nancy submits will be refused under paragraph 9.8.2 because Nancy has breached immigration laws, and there are aggravating circumstances (failure to report; assumption of a different identity; non-compliance with removal directions). Nancy’s family life in the UK should, however, be taken into consideration when making this refusal. It is likely that only a very strong family life (for example, a British child with a British father who lives in the UK) will mean that Nancy is allowed return to the UK.

Dealing with refusals under paragraph 9.8.2

Once a person has been refused under paragraph 9.8.2 it will be rare for officials to change their mind on the basis of a new application. A refusal is likely to stand for a prolonged period, and potentially forever.

Where an application is refused on this basis, it will be necessary to bring a legal challenge. Where the person refused entry is a family member, there will usually be a right of appeal to the immigration tribunal on human rights grounds. In other cases where there is no right of appeal, an application for Judicial Review will be necessary. Following the change to the rule, we have seen more applicants succeed in appeals than before, particularly where there is strong family life.

Helpful cases

There are a small number of cases that might help applicants refused under paragraph 320(11) on the grounds of contriving to frustrate the intentions of the rules. This is the previous version of the rule but as it is functionally identical to the current version, they will still be relevant.

JC (Part 9 HC395) – burden of proof) China [2007] UKAIT 27

This case ruled that

In relation to all of the general grounds the burden of proof is on the decision-maker […] to establish the facts relied upon” (paragraph 10)

The entry clearance officer, therefore, will bear the burden of proof to show that an applicant should be refused, rather than an applicant needing to prove that he or she should not be refused.

What this means in practice is that an applicant does not have any positive obligation to disclose matters which would prejudice his or her case, provided he or she never deceives (or they could be subject to a ten-year entry ban). Unless the application form specifically asks for it, therefore, an applicant would not need to disclose, for example, that they previously entered into a sham marriage.

PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC)

In this case, the judge said:

In exercising discretion under paragraph 320(11) […], the decision maker must exercise great care in assessing the aggravating circumstances said to justify refusal and must have regard to the public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance. (my emphasis)

In the tribunal’s conclusions Kenneth Parker J elaborated:

The Entry Clearance Officer, in making the decision of refusal, refers nowhere to the guidance under paragraph 320(11).  It is therefore wholly unclear whether the Entry Clearance Officer has addressed his mind to the relevant question, namely whether in the circumstances of this case Mr S’s breach of UK immigration law was sufficiently aggravating so as to justify the refusal.  It seems to us that the Entry Clearance Officer should have specifically recognised that Mr S had voluntarily left the United Kingdom more than 12 months ago with a view to regularising his immigration status.  […]  If the aggravating circumstances are not truly aggravating there is in this context a serious risk that those in the position of Mr S will simply continue to remain in the United Kingdom unlawfully and will not seek to regularise their status as he has sought to do.  The effect then is likely to be counter-productive to the general purposes of the relevant rules and to the maintenance of a coherent system of immigration. (my emphasis)

It further states that

Mr S had made a claim under Article 8 which, standing alone, may not have been very strong.  Nonetheless the family circumstances needed to be evaluated carefully in the balancing exercise to which we have referred.

This case is helpful in that it confirms that

1. When deciding of an application, the entry clearance officer should look favourably at the fact that an applicant decided to leave the UK and submit a new application to regularise their status.
2. Family circumstances need to be taken into account when deciding an application.

ZH (Bangladesh) v SSHD [2009] EWCA Civ 8

In this case, the Court of Appeal observed that illegal working was part and parcel of illegal residence and did not exclude success under a rule designed to regularise some such persons. Presumably, one could apply this case to argue that illegal working should not be considered an aggravating circumstance, but simply goes to show that stage 1 of the test is met.

The guidance suggests that entry clearance officers would agree with this argument, as it specifies that an aggravated circumstances for illegal work is when it is “in breach [of] visitor conditions” and “within short time of arrival in the UK (indicating a deliberate intention to work)”. Had it wanted to catch all instances of unlawful work, the guidance would simply have said “previous illegal work”.

Example

Luis was an overstayer in the UK between January 2018 and January 2020. In January 2019, he meets Paul, a British citizen, and they enter in a relationship. They get engaged in December 2019.

Having taken legal advice, in January 2020, Luis decides that he will return home and apply for a visa to enter the UK as Paul’s fiancé.

While in the UK as an overstayer, Luis had access to housing benefits, despite not being entitled to them. Luis worked at all times in the UK.

Firstly, it is possible that the entry clearance officer will not know of the aggravating circumstances in this case, in particular the fact that Luis accessed benefits. Unless asked in the application form, Luis has no obligation to disclose that he received benefits and worked in the UK.

In addition, when submitting the application on behalf of Luis, his legal representatives may want to consider making the following representations for why his application should not be refused under paragraph 9.8.2:

– Luis should be given credit for having decided to regularise his status by leaving the UK and applying for entry clearance.
– The disruption of Luis’ family life with Paul should be taken into consideration by the entry clearance officer when deciding of the application.
– Luis’ work alone should not be treated as an aggravating circumstance in this application.

This article was originally published in March 2017 and has been updated by Alex Piletska so that it is correct as of the new date of publication shown.