5 FAQS about paragraph 320(11)
In applications for entry clearance where the applicant has a negative immigration history in the UK, the application may be refused under the general grounds for refusal, which are found in part 9 of the Immigration Rules. Where an applicant has ‘previously contrived in a significant way to frustrate the intentions of the Immigration Rules’, the application could be refused under paragraph 320(11). In this post we look at five frequently asked questions about paragraph 320(11).
When could my application be refused under paragraph 320(11)?
Paragraph 320(11) is a discretionary ground for refusal, which means that an application can be refused if 320(11) is engaged but does not mean that it will be refused.
In order for an application to be refused under paragraph 320(11) you must have previously contrived in a significant way to frustrate the intentions of the Immigration Rules by:
(i) overstaying; or
(ii) breaching a condition attached to his leave; or
(iii) being an illegal entrant; or
(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);
and there are other aggravating circumstances.
The Home Office Guidance on 320(11) states in deciding whether to refuse, the entry clearance officer must consider all cases on their merits and take into account family life in the UK and the level of responsibility for any breach.
In summary, there are three stages in determining whether an application will be refused or not:
- You must have overstayed, breached a condition, entered the UK illegally or used deception.
- There are other aggravating circumstances (see below). Any of the factors in Stage 1 on their own will not lead to refusal under paragraph 320(11). For example, if you have overstayed but there are no other aggravating circumstances, your application should not be refused under 320(11).
- The Entry Clearance Officer must consider all of your circumstances, including family life in the UK, before deciding whether to refuse.
What are aggravating circumstances under paragraph 320(11)?
In the Immigration Rules, the examples of aggravating circumstances are absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.
The Home Office Guidance on General Grounds for Refusal, Section 2, provides the examples above and these additional aggravating circumstances:
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- 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 a short time of arrival in UK (indicating a deliberate intention to work)
- receiving benefits, goods or services when not entitled
- getting NHS care to which they are not entitled
- attempting to prevent removal from the UK, arrest or detention by the Home Office or police
- escaping from Home Office detention
- troublesome or frivolous applications
- 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
It should be noted that neither of these are exhaustive lists, and the Home Office may decide that other factors amount to aggravating circumstances. For example, the Home Office often try to rely on any unlawful work as aggravating a period of overstay, despite this not being included in their list of aggravating circumstances. See below for more information about this.
What is a frivolous application under paragraph 320(11)?
There is no definition of what constitutes a frivolous application in the Immigration Rules. The Home Office will consider applications which are made for the purpose of artificially prolonging stay in the UK or to frustrate any attempt of removal to be frivolous.
If it is alleged that you have previously made a frivolous application, then it should be carefully explained in any future application why you made the application and the circumstances surrounding that application.
How will illegal work affect my application?
The Guidance specifically refers to illegal work in the context of ‘breach on visitor conditions within a short time of arrival in the UK.’ This suggests not all illegal work will be an aggravating factor.
Additionally, in ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 the Court of Appeal noted that under the Secretary of State’s policy regarding the 14 year rule, which was then in force, the applicant had to have been economically self-sufficient for a significant period of time spent in the UK in order to obtain indefinite leave to remain:
‘The Home Office recognised that applicants under the 14 year rule, if they were to be successful, must be expected to have worked unlawfully for much of their time here’.
This further suggests that not all illegal work should not be considered to be an aggravating factor.
Will my application be successful?
Whether your application will be successful or not will be dependent on your own individual circumstances, the extent to which you have ‘contrived in a significant way to frustrate the intentions of the Immigration Rules’ and the aggravating circumstances involved.
When applying for entry clearance, it will be taken into account if you have left the UK voluntarily and applied to re-enter. In PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC) it was stated that:
“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.”
It is important to thoroughly prepare any application you make and address any of the issues above that apply to your situation.
Contact our Immigration Barristers
For assistance with an application or appeal or advice on your options following a paragraph 320(11) refusal, contact our specialist immigration barristers on 0203 617 9173 or via the enquiry form below.
