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Family Members and General Grounds for Refusal.

By Dominic Magne

UK Visa applications are subject to the specific Immigration Rules applied to each category of visa. They are also subject to the “ General Grounds for Refusal” under Part 9 of the Immigration Rules.

The General Grounds for Refusal are prohibitions on granting entry to the United Kingdom because of a past conduct.

This past conduct includes previous breaches of the Immigration Rules, and the many permutations of such breaches are catalogued with consequences described. Essentially , prior breach will lead to future refusal, or may lead to future refusal depending on the flaw.

Section 1 of the General Grounds for Refusal sets out those categories of the Immigration Rules that are not subject to the General Grounds for Refusal.

The chief beneficiaries of the exceptions have been Partners joining British Citizens or people settled in the United Kingdom under: Appendix FM.

The exceptions were not comprehensive as the Home Office maintained refusal was justified where serious criminality, public health or identity were concerned .The rule has stated:

" 9.1.1. Part 9 does not apply to the following:

(a) Appendix FM, except paragraphs 9.2.2, 9.3.2, 9.4.5, 9.9.2, 9.15.1, 9.15.2, 9.15.3, 9.16.2, 9.19.2, 9.20.1, 9.23.1 and 9.24.1. apply, and paragraph 9.7.3 applies to permission to stay; and paragraph 9.8.2 (a) and (c). applies where the application is for entry clearance; and……"

This rule is amended as of the19th February 2024 by the following instruction inserted at page 4 of HC 556 :

In paragraph 9.1.1(l), after

9.7.3” insert “, 9.8.1 to 9.8.8, 9.9.1 to 9.9.2,”

Paragraphs 9.8.1 to 9.8.8 detail exclusion in broad terms of Immigration misconduct. For example, applications for a visa to come to the United Kingdom must be refused where….

" Applicant has previously breached immigration laws and

The application is for entry clearance or permission to enter and it was made within the relevant time period."

Whereas an application for permission to stay may be refused where : -

" 9.8.3. An application for permission to stay may be refused where a person has previously failed to comply with the conditions of their permission, unless permission has been granted in the knowledge of the previous breach."

The various conducts set out 9.8.1 to 9.8.8 may lead to an exclusion of between one year and ten years . They relate to breaches of the Immigration Rules rather than serious harm to the public good.

At first brush this amendment appears to significantly extend the punitive regime to migrants and their family members as family life can be sundered for years because of a failure to comply with the terms of the Immigration Rules.

That is not the meaning of the Rule following the amendment.

The newly included categories only apply to applications for permission to stay, so such past conduct does not apply for a visa application from outside the United Kingdom. It would be perverse to grant permission to enter notwithstanding such conduct, only to refuse a later extension of permission to stay because of such conduct.

The Explanatory Memorandum makes no reference to this change to the Immigration Rule.

So for the sake of coherence, the residual class of those who may be caught are those who have permission to remain in some other capacity who are found to have breached the terms and conditions of stay, at the time they apply to vary their permission to stay on the basis of marriage . Their remedy would be to leave the United Kingdom and apply for permission to enter and so avoid the application of the General Grounds.

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