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Changes to the General Grounds for Refusal

The Statement of Changes in Immigration Rules (HC 813) published on 22 October 2020 signalled a major overhaul of the UK immigration system, with the introduction of the new Points-Based Immigration System in a document comprising 510 pages.

However, there are additional revisions with wide-reaching effect: Part 9 of the Immigration Rules, containing the grounds for the refusal or cancellation of entry clearance, leave to enter or remain has been replaced with new rules. The substantive changes will be outlined below.

Criminality grounds for refusal

Substantive changes include the replacement of the existing varying criminality thresholds with a new single sentence-based threshold of 12 months for offences committed in the UK or overseas. Under the new Criminality grounds, an application must be refused or leave held must be cancelled where the person has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more. The existing mandatory refusal grounds for persistent offenders or individuals whose offence has caused serious harm are retained.

Applications may still be refused or leave may be cancelled where the person has received a custodial sentence of less than 12 months or has received a non-custodial sentence or out-of-court disposal that is recorded on their criminal records. In those cases, refusal or cancellation is discretionary and, as such, consideration ought to be given to all relevant factors.

However, for visitors and individuals seeking entry for less than 6 months, an application must be refused mandatorily even when their custodial sentence was for less than 12 months or when they received a non-custodial sentence or out-of-court disposal, unless more than 12 months have passed since the date of conviction. A refusal on a discretionary basis cannot be precluded in any event.

Non-conducive grounds for refusal

Even in the absence of a conviction that falls within the criminality thresholds above, a new ground for refusing an application or for cancelling existing leave includes where the person’s  presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons.

This ground is very similar to the various “undesirability grounds” in the previous iteration of Part 9. Other than a change of wording (whose potential effect on the scope of the ground for refusal remains to be seen), the operative difference is that this is a single consolidated ground for refusal of any type of application, whereas previously there were separate paragraphs with similar wording for refusing entry clearance, leave to enter and leave to remain applications as well as cancelling existing leave. It should be noted that this is now a mandatory refusal ground for all types of application. The previous paragraph 322(5) was, conversely, a discretionary ground for refusal.

Exclusion from asylum or humanitarian protection grounds

As with most provisions of the new Part 9, the existing grounds for refusal on the basis of exclusion from asylum or humanitarian protection grounds are consolidated in one ground for refusal (and another ground for cancellation) that applies to applications for entry clearance, leave to enter and remain. An additional rule was introduced in relation to applicants for whom the Home Office has decided that the exclusion provisions would apply if they had a protection claim decided in the UK.  These grounds are discretionary.

False representations and deception grounds

The existing grounds of refusal or cancellation on the basis of having made false representations, used false documents or not having disclosed relevant facts are consolidated and, importantly, are rendered discretionary rather than mandatory. This is with the exception of when the decision-maker can prove that it is more likely than not the applicant used deception in the application, in which case refusal would be mandatory. 

The distinction between making false representations or submitting false documents on one hand, and using deception on the other, should be interpreted in line with the judgment in Chanda v Secretary of State for the Home Department [2018] EWCA Civ 2424, where it was confirmed that deception requires the applicant’s personal dishonesty; a false representation or document could involve dishonesty solely by another party. 

It is odd that the provisions are framed in such a way that indicate a decision-maker must “prove” deception. In an application for entry clearance or leave to enter or remain, a decision-maker, by definition, ought to consider and make decisions themselves, rather than prove anything to another. The same applies to decisions to cancel leave. It can only be speculated that this wording is used because a lot of these cases do end in an appeal where the Home Office bear the burden of proving this to the Tribunal judge, or in a judicial review application, where the reviewing court will consider if the decision-maker acted irrationally in reaching such a conclusion, taking into account the burden and standard of proof.

A ground for the cancellation of leave extended under s.3C of the 1971 Act was added where the decision-maker can prove on the balance of probabilities that the applicant used deception in the application (it is unclear if this refers to the application that led to the original grant of leave or the application which led to its extension by virtue of s.3C, in which case leave would probably be cancelled notwithstanding the exercise of an appeal right). The power to cancel leave extended by s.3C existed already in s.3C(3A) of the 1971 Act; it remains to be seen if its inclusion in the Rules will result in the power being exercised.

It appears odd that paragraph 9.7.4. refers solely to permission extended under s.3C whereas the cancellation ground of paragraph 9.8.8. refers to permission in general, including that extended under s.3C. It is unclear if this was intended or a drafting oversight.

Previous breach of immigration laws grounds for refusal

The rules involving what is colloquially referred to as the “entry ban” have been consolidated with no substantive changes. 

Discretionary grounds for refusal continue to apply where there has been a previous failure to comply with conditions of leave or where the applicant has previously contrived in a significant way to frustrate the intention of the rules. The wording in the Statement of Changes, again, seems odd:  “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) […]”. Surely “and” would have been a more fitting choice to denote addition.

Specific cancellation grounds for work and study routes

Simplified provision is made to the grounds for cancellation on the work and study routes, for example where a person ceases to work or study, or their sponsor loses their licence.  

Grounds for refusal on the basis of sham marriage/civil partnership, customs breaches and rough sleeping

The changes to Part 9 also introduce a new discretionary ground for refusal or cancellation of entry clearance or leave on the basis of involvement in a sham marriage or sham civil partnership.

They also introduce a new discretionary ground under which those who breach customs provisions may be refused at the border, or have their existing leave cancelled.

Importantly (and shockingly) the new rules also include a discretionary ground for refusal or  cancellation of leave on the basis of rough sleeping. The definition of rough sleeping is provided as “sleeping, or bedding down, in the open air (for example on the street or in doorways) or in buildings or other places not designed for habitation (for example sheds, car parks or stations).” This can be seen as the culmination of the Home Office’s hostile environment policy, as a result of which individuals can already be left destitute and, since 1 December 2020, have an application refused or leave cancelled and ultimately be removed from the UK. 

The fact that the addition of such a new ground with serious consequences was buried within a labyrinthine 510-page document of changes is further problematic.

Timing of changes

The above changes take effect at 9am on 1 December 2020. However, applications made before 9am on 1 December 2020 will be decided in accordance with the Immigration Rules previously in force.

It should be noted that references to “permission to enter” and “permission to stay” are references to leave to enter and leave to remain, respectively.

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